author: J. FRED Jones, Justice.

text:
    Johnny VERSER, Mose COTTON and Howard COTTON v. STATE of Arkansas
    CR 74-15
    509 S.W. 2d 299
    Opinion delivered May 20, 1974

      John F. Gibson, Jr., for appellants.

      Jim Guy Tucker, Atty. Gen. by: Robert S. Moore, Jr., Asst. Atty. Gen., for appellee.
   J. FRED Jones, Justice.

Johnny Verser, Mose Cotton and Howard Cotton were convicted in Desha County Circuit Court of the crime of sodomy and were sentenced to three years each in the penitentiary. On appeal to this court they designate the points upon which they rely for reversal as follows:

“The trial court erred in denying the defendants’ plea of former jeopardy.
The trial court erred in finding the appellant, Howard Cotton, guilty of the crime of sodomy upon the uncorroborated testimony of the prosecuting witness.
The trial court erred in admitting the statements of each defendant because said statements were taken without due process of law and in violation of the constitutions of the state of Arkansas and the United States.”

We find no merit to the points relied upon which we now discuss in the order listed.

On June 14, 1973, the appellants were arrested by the Dumas police and charged with disturbing the peace and assaulting Jessie Malone on June 11, 1973. Each appellant posted bond in the amount of $99.00 for appearance in the Justice of the Peace Court. The appellant, Johnny Verser, appeared injustice of the Peace Court and entered a plea of guilty to the charge of disturbing the peace and assault upon Malone but the other two appellants, Mose and Howard Cotton, failed to appear and forfeited their bond in the Justice of the Peace Court. On June 21, 1973, the appellants were arrested a second time and charged with the offense of sodomy described in the information as the commission of “an immoral sex act with Jessie Malone, a male person,” which allegedly occurred on June 11, 1973. The cases were consolidated for trial, a jury was waived and the appellants were tried before the trial judge sitting as a jury.

The testimony of the prosecuting witness, Jessie Malone, was to the effect that the three appellants beat him on three separate occasions on the night of June 11, 1973, and following the second beating they forced him to commit an act of sodomy with each of them. Malone testified as to how he came in contact with the appellants at a cafe on the evening of June 11, 1973, and how they enticed him into their automobile on the pretense of first taking him by Martha Berry’s house where he could leave some beer he had purchased for her, after which they would drive around and drink beer together. He said that instead of taking him by Martha Berry’s house they took him out into the country where they drank his beer, then beat him over the head with one of their belts. He said that the three appellants beat him to the ground and drug him into the woods between the road and a bayou where they beat him some more. He said the appellants then left him on the bank of the bavou and drove off in the direction of Dumas. He said he finally got out on the road and was trying to catch a ride into town when the appellants, who had turned around somewhere along the road, stopped again. He said that the appellants got out of their automobile, beat him again and then forced him to commit the acts of sodomy. He said the appellants then left him again but soon returned and beat him some more and threatened to kill him.

On cross-examination Malone testified that he was acquainted with Mose and Howard Cotton and on the day prior to their attack upon him, he had some difficulty with one of their brothers who accused him of stealing $15.00. He said he struck the Cotton brother with a cold drink bottle.

Mose Cotton testified that he had known Jessie Malone for some time and that Malone had purchased beer for him. He said that on the day prior to the incident involved in this case, Malone had struck his brother with a bottle and that was the reason the appellants assaulted him. The appellants admitted the unnatural sex acts as described by Malone but they denied they forced Malone to commit the acts.

The appellants argue that Verser's plea of guilty and the forfeiture of the bonds by the Cottons amounted to “a prosecution” in the Justice of the Peace Court for the same crime for which they were later tried and convicted in cirpuit court. They argue that since the sodomy charge arose out of the same transaction or incident, that prosecution for any part of a single crime bars further prosecution based on the whole or a part of the same crime, citing 15 Am. Jur. § 58, Criminal Law.

Assault is a misdemeanor defined as “an unlawful attempt coupled with a present ability to commit a violet injury upon the person of another,” Ark. Stat. Ann. § 41-601 (Repl. 1964), and simple assault is punishable by a fine not exceeding $100. Disturbing the public peace is a misdemeanor and the statutory definition, § 41-1401, includes many specific acts, such as challenging to fight and fighting. but an act of sodomy is not among them. The common-law crime of sodomy is a felony punishable by imprisonment in the penitentiary for not less than one nor more than 21 years, § 41-813. It has been defined as including “unnatural sex relations between persons of the same sex, or with beasts, or between persons of different sex, but in an unnatural manner.” Strum v. State, 168 Ark. 1012, 272 S.W. 359.

In the very recent case of Connor v. State, 253 Ark. 854, 490 S.W. 2d 114, in reference to the definition of the crime of sodomy, we said:

“Whether it is called sodomy, buggery, or crime against nature — as it is often called interchangeably — it boils down to a simple definition that it is an unnatural sex act which is condemned. It is the opposite of a natural sex act. ...”

Consequently, by simple definition alone, there is no relation between the misdemeanors of assault and disturbing the peace and the felonious crime of sodomy.

We find no merit to appellants second contention that the trial court erred in finding the appellant, Howard Cotton, guilty of the crime of sodomy upon the uncorroborated testimony of the prosecuting witness. The appellants, Johnny Verser and Mose Cotton, gave testimony in corroboration of the prosecuting witness and we conclude it was sufficient to sustain the conviction. Furthermore, the trial court, sitting as a jury, had a right to conclude from the evidence that the prosecuting witness Malone was not a willing and voluntary participant in the acts of sodomy and was, therefore, not an accomplice whose testimony required corroboration. Hummel v. Staff, 210 Ark. 471, 196 S.W. 2d 594.

We find no merit to the appellants’ third contention that the court erred in admitting the statements of each defendant because they were taken without due process of law and in violation of the provisions of the Constitutions of the state and the United States. From the testimony of Chief Morgan and from the testimony of the appellants themselves, we conclude that the statements made by the appellants were voluntary.

The judgment is affirmed.


source: Caselaw Access Project

author: CONLEY Byrd, Justice. J. FRED JONES, Justice,

license: Public Domain

text:
    John Wallace NAIL v. STATE of Arkansas
    CR 74-8
    509 S.W. 2d 826
    Opinion delivered May 20, 1974
    [Rehearing denied June 24, 1974.]

      Kelley & Luffman, by: Eugene T. Kelley, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Mattison, Asst. Atty. Gen., for appellee.
   CONLEY Byrd, Justice.

The jury found appellant John Wallace Nail guilty of assault with intent to kill and fixed his punishment at 12 years in the penitentiary. For reversal appellant contends among other things that the trial court erred in permitting State Trooper Ferguson to testify that he received on his police radio a bulletin that appellant and two companions Goodwin and Lyles had escaped from a jail in Muskogee, Oklahoma.

The record shows that Trooper Ferguson was patrolling Highway 72 north of Rogers and that because of some bulletins received he was on the lookout for a 1968 Dodge automobile having the right rear tail light missing and bearing Arkansas license Number CIM 123. When he identified the automobile he turned on his police lights signaling the car to stop. The Dodge automobile with its three occupants at first slowed down and then speeded up. When Trooper Ferguson gave chase, the occupants in the Dodge began shooting at him. At least one shot hit the radiator and one or more others hit the windshield of the Trooper’s automobile. The chase lasted for several minutes during which time other officers came to Trooper Férguson’s aid. The chase finally ended near the Missouri border when the Dodge automobile was wrecked. Trooper King at that time observed three persons emerging from the wrecked automobile. Goodwin and Lyles were captured shortly thereafter. Appellant was captured the next day while he was walking along a county road near the Missouri border.

No witness was able to identify appellant as one of the occupants of the automobile. To overcome this problem the prosecution proved the bulletin contents relative to appellant’s escape from the Muskogee jail with Goodwin and Lyles and the testimony of John Holm to the effect that he was tied up in his home at Fayetteville, by Dale Goodwin, Stanley Lyles and appellant. Mr. Holm testified that while he did not see the man take his 1968 Dodge, the automobile was missing when he got loose and that it was the same automobile later towed to Gooch's Body Shop. Other testimony tied the car at Gooch's Body Shop as being the wrecked automobile from which the shots were fired.

To sustain the action of the trial court the State contends that Trooper Ferguson's testimony established the basis for his pursuit of the automobile in which appellant was fleeing the police and that Trooper Ferguson's knowledge received by radio was knowledge of the entire State Police Department. It then contends that such knowledge was not hearsay. In doing so the State relies upon Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458 (1969) and Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409 (1970).

In both Jones v. State, supra, and Johnson v. State, supra, the lawfulness of the arrest became an issue because the State wanted to introduce some evidence acquired without a search warrant as being incidental to a lawful arrest. Here the lawfulness of appellant’s arrest was not an issue. Neither was the trooper’s original pursuit an issue because the shooting arose after the pursuit started.

Evidence is considered hearsay when its probative force depends on the competency and credibility of sorrie person other than the witness, Rice v. Moudy, 217 Ark. 816, 233 S.W. 2d 378 (1950). The probative force of the bulletin with reference to appellant’s escape from the Muskogee jail would of course depend upon the competency and credibility of some person other than Trooper Ferguson or the knowledge of the Arkansas State Police Department. Consequently, we must conclude that it was hearsay. Having concluded that it?' was hearsay and not otherwise admissible to prove some other issue under an exception to the hearsay rule, it follows that the trial court committed prejudicial error in permitting such proof to be made.

Appellant raises a number of other issues such as the sufficiency of the evidence and the admissibility of a photograph which we do not reach as such matters are not likely to arise in the same form upon a new trial nor on the same evidence.

Reversed and remanded.

Harris, C.J., and Jones, J., dissent.

J. FRED JONES, Justice,

dissenting. I do not agree with the majority opinion in this case. The plain facts are: Goodman, Lyles and the appellant Nail escaped from jail in Muskogee, Oklahoma, and in their flight from Oklahoma they robbed a grocery store, then entered the home of John Holm in Arkansas and after tieing him up, they took eight guns from his home and left in his 1968 Dodge automobile. When the state police officers attempted to stop them, they fired several rifle shots at the pursuing police officers, finally disabling one of the state police automobiles and Finally wrecking the Dodge automobile. Goodman and Lyles were taken into custody immediately after fleeing on foot from the wrecked Dodge, but Nail eluded the officers and was not taken into custody until the following day.

Nail was not tried and convicted of escaping from the Muskogee jail, nor was he tried and convicted for stealing Mr. Holm’s automobile. John Wallace Nail was tried and convicted for assault with intent to kill the police officers who were attempting to overtake and stop the Dodge automobile.

The sequence of events occurred in the following manner: Trooper Keith Ferguson of the Arkansas State Police was on routine patrol in northwest Arkansas when he received a radio bulletin informing him of a jailbreak in Muskogee, Oklahoma, and the escape of three prisoners from the jail. The radio bulletin broadcast the physical descriptions of the three escapees and identified them by name as Stanley Lyles, Michael Goodman and John Wallace Nail. The bulletin then announced that three individuals thought to be the escapees had entered a home in Fayetteville, Arkansas, stealing a vehicle and some guns, and were still believed to be at large in northwest Arkansas. The stolen vehicle was described in the broadcast as a beige colored 1968 Dodge with one broken tail light on the righthand side and license No. CIM 123.

According to the testimony of Trooper Ferguson, he spotted a vehicle as described ih the bulletin at approximately 8:50 p.m. while patrolling Highway 62. He pursued the vehicle and signaled for it to stop. The driver of the vehicle first slowed down as if intending to stop and then suddenly accelerated at a high rate of speed. A high speed chase ensued and one of the occupants leaned out the righthand side of the vehicle and began firing at Trooper Ferguson. He returned the fire and pursued the men until his vehicle became disabled from bullets through the radiator and windshield. During the chase Trooper Ferguson had radioed for assistance and Trooper King answered his call.

Trooper King testified he met the fleeing Dodge automobile near the Arkansas-Missouri line and immediately turned his unit around and gave chase. He testified there was one person in the back seat of the automobile who had short, dark colored hair and appeared to be holding a rifle. He also testified that at the conclusion of the chase he saw all three persons get out of the automobile and run from it. He said the two individuals who got out of the front seat had long hair, one blond and the other dark, and the one who alighted from the rear seat had short dark hair. Trooper King then testified that Trooper Ferguson and other officers arrived on the scene and he then described the search they made through a barn and some woods in search of the three former occupants of the automobile. He then described how they apprehended Lyles and Goodman in some woods immediately following their escape from the wrecked Dodge automobile and how they apprehended Nail the following day. Nail was cold and wet when apprehended about three miles from where the automobile was wrecked and his identity is not questioned.

Mr. John Holm identified Nail in open court as one of the three individuals who tied him up in a back bedroom of his home when his guns and Dodge automobile were taken.

There is no question that the jury verdict of guilty and the judgment thereon was supported by substantial evidence in this case. The record of Trooper Ferguson's testimony for which the majority say the judgment must be reversed appears as follows:

“A. Earlier in the day, I had received information over the radio — a state-wide bulletin to all State Police Units in the State of Arkansas, mostly to the people in the northwestern part of Arkansas — of a jailbreak—
MR. KELLEY: That’s hearsay.
THE COURT: Overruled
A. of a jailbreak in Muskogee, Oklahoma, and that the subjects — three subjects — had escaped and.were believed to be in this area.
Q. Did they give you a description of these people?
A. Yes, sir. They had a composite made up of the men’s faces and names.
Q. Do you recall what these names were?
A. Yes, sir. One of them w'as a Goodwin [sic], a Nails [sic] and a Lyles, and they were supposedly headed in our general direction.
Q. So you had already been put on alert, then?
A. Yes, sir. Earlier in the day.
Q. Now, about this time, did you hear anything else on the radio concerning this matter?
A. Yes. The three subjects had supposedly entered a home in Fayetteville and had taken their car and left them — 1 think — supposed to have taken some guns, also.
Q. Did you get a description of this automobile that was taken in Fayetteville?
A. Yes, sir. They gave out a description of being a 1962 Dodge.
Q. Did they give any further description or official description of this car?
A. Yes, sir. It was a new'er, near-white car —beige-colored car — 1968 Dodge, and it had one tail-light out on the right-hand side. The license number on the car was CIM123, Arkansas 72 plates.
Q. All right. Did you ever see a car that night meeting this general description?
A. Yes, sir. Approximately 8:50 p.m. that night, I was still on this hill and was overhearing traffic from another trooper from the radio talking about a car fitting this description, and they were — a car came by me at approximately this time fitting the description.
Q. And that was at Brightwater Hill on 62?
A. Yes, sir.
Q. Back to that radio bulletin that you received just before that, did they — was this any description made of the people who had taken this particular car in Fayetteville?
A. Yes, sir. It was confirmed as the same people that had broken out of jail in Muskogee, Oklahoma.
Q. Goodwin, Lyles and Nails [sic] ?
A. Yes, sir.
Q. All right. When you first saw the car, what did you do?
A. When I first saw the car, when it went by, 1 seen that it — that there was a tail-light out on the left-hand side, and I seen that it was a Dodge and I pulled out on the highway and went after it, and I caught up with the car at about Codlings Grocery, which is 62 and 72 Junction on 62.”

It is my view that the evidence pertaining to the Muskogee jailbreak was not offered or admitted for the purpose of showing or proving that the appellant had in fact broken out of the Muskogee, Oklahoma, jail and escaped; it is my opinion it was offered for the purpose of showing why the officer attempted to overtake and stoo this particular automobile in the first place. It appears slightly ridiculous to me that Trooper Ferguson should be so restricted by a rule of evidence requiring him to begin his testimony in the middle of his pursuit of a beige colored Dodge automobile, which pursuit was being conducted for no apparent reason at all.

HARRIS, C.J., joins this dissent.


author: Conley Byrd, Justice.

text:
    Scottie Lee STEWART v. STATE of Arkansas
    CR 74-12
    509 S.W. 2d 298
    Opinion delivered May 20, 1974

      Robert L. Pierce, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Scottie Lee Stewart was found guilty on two different counts of having obtained personal property by false pretense in violation of Ark. Stat. Ann. § 41-1901 (Repl. 1964). For reversal he contends that the trial court erred in permitting the State to amend the information so as to change the nature of the crime.

The information charging appellant with violation of Ark. Stat. Ann. § 41-1901, alleged that appellant “... did unlawfully ... with intent to defraud ... obtain a check from Claudine Ryals in the amount of 11,950 drawn on the First National Bank of Topeka, Kansas, against the peace and dignity of the State of Arkansas.” The second information made substantially the same allegation except the check was in the amount of $2,800.

The record shows that appellant, who was having a clandestine affair with Claudine Ryals, would give her checks for money he was allegedly hiding from his ex-wife to be placed in Ryals’ bank account. Soon after he would give her a check he would ask her to write him a check for substantially the same amount. After writing the first such check she received a notice from her bank that appellant’s check was no good. Appellant asserted that there was some kind of a mix-up and took the check. Thereafter, Ryals heard nothing further from the bank. Appellant continued to write checks to her to be deposited in her bank account and she in turn would accommodate him by writing checks to him upon demand. Other proof on the part of the State showed that appellant through the use of the checks on Ryals’ bank accounts was “kiting” checks through his Twin City Bank account in North Little Rock and that because of such conduct the Twin City Bank had been defrauded of SI,950 on one check issued by Ryals and $2,800 on another check issued by Ryals. When appellant was arrested, the officers found in his automobile, the several notices from Ryals’ Topeka, Kansas bank notifying her that the several checks issued by appellant were no good. Since appellant had free access to Ryals’ residence, the trial court could have concluded that appellant had intercepted the notices to prevent Ryals from knowing of his scheme.

Ark. Stat. Ann. § 41-1901 (Repl. 1964), provides:

“Every person. . .who with intent to defraud . . . shall designedly . . . by . . . oral false pretense, obtain a signature to any written instrument . . . upon conviction thereof, shall be deemed guilty of larceny, ...”

This was the nature of the offense charged in the information and as we held in Fisher v. State, 161 Ark. 586, 256 S.W. 858 (1923), it was not necessary for the State to show that Ryals here sustained an actual loss. Of course the proof that appellant had defrauded the Twin City Bank was competent to show that appellant obtained the checks from Ryals with the intent to defraud. Consequently, we cannot see how the trial court committed prejudicial error when it amended the pleadings to conform to the proof that did not in any way change the offense charged nor the admissibility of the evidence upon which the State relied.

Affirmed.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    C. & A. CONSTRUCTION COMPANY, Inc. v. BENNING CONSTRUCTION COMPANY
    73-296
    509 S.W. 2d 302
    Opinion delivered May 20, 1974

      Rose, Mash, Williamson, Carroll & Clay, by: H . Dane Clay and Webster L. Hubbell, for appellant.

      Coleman, Gantt, Ramsay & Cox, for appellee.
   Frank Holt, Justice.

The appellant and appellee are subcontractors who entered into an agreement involving the installation of sewer lines. Paragraph 7 of the agreement between these parties provided:

It is further agreed that the 2nd subco tractor will receive $20,000 for supervision which will be added to the actual cost figure. It is further agreed that the difference between actual cost and bid price will be divided as follows: 33 1/3% to 2nd contractor; 66 2/3% to 1st subcontractor.

Appellee was paid $517,451.11 and appellee brought suit for an alleged payment deficit of $55,243.20 on the contract. The trial court, sitting as a jury, after hearing parol evidence, awarded appellee judgment for $40,349.11. Appellant questions only that part of the judgment which awarded $18,-600 (in addition to $20,000 for supervision) for the salary and living expenses of appellee’s president and sole stockholder during the time he was personally engaged in the supervision of the construction. Appellant contends that the extra award of $18,600 is double recovery in that it is contrary to the terms of the contract which designates a specific sum of $20,000 for supervision.

When contracting parties express their intention in a written instrument in clear and unambiguous language, it is our duty to construe the written agreement according to the plain meaning of the language employed. Miller v. Dyer, 243 Ark. 981, 423 S.W. 2d 275 (1968). However, where the meaning of a written contract is ambiguous, parol evidence is admissible to explain the writing, Brown and Hackney v. Daubs, 139 Ark. 53, 213 S.W. 4 (1919). Ambiguities are both patent and latent. When, on its face, the reader can tell that something must be added to the written contract to determine the parties’ intent, the ambiguity is patent; a latent ambiguity arises from undisclosed facts or uncertainty of the written instrument. Dorr v. School District No. 26 &c, 40 Ark. 237 (1882); Johnson v. Mo. Pac. R. R. Co., 139 Ark. 507, 214 S.W. 17 (1919); and Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S.W. 150 (1912). However, the initial determination of the existence of an ambiguity rests with the court and if ambiguity exists, then parol evidence is admissible and the meaning of the term becomes a question for the factfinder. Fort Smith Appliance and Service Co. v. Smith, 218 Ark. 411, 236 S.W. 2d 583 (1951); Brown and Hackney v. Daubs, supra; and Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A. 2d 332 (1957), cited in 4 Williston on Contracts, § 627 (3d. Ed. 1961). For example, in Taylor v. Union Sawmill Co., supra, our court made an initial determination of the ambiguous nature of the term “white oak” before justifying the introduction of testimony of custom and usage in order to determine the sense in which the term was employed.

In the case at bar, we cannot strain the plain, obvious, and unambiguous language of the contract. Appellee agreed to a definite amount for supervision. Had appellee’s president and sole owner of the corporation desired that the sum of $20,000 represent a guaranteed profit, as he and his witnesses so understood from their verbal agreement during negotiations, the wording of the contract should have so indicated. Had appellee’s president and owner intended, as he now contends was their verbal understanding, that his salary should be in addition to the $20,000 for supervision, the written contract could easily have so reflected. The lower court’s award for salary ($15,500) is contrary to the plain and unambiguous terms of their written agreement and the judgment should be adjusted accordingly".

In Hoffman v. Late, 222 Ark. 395, 260 S.W. 2d 446 (1953), we said:

It is the accepted present-day view that the parol evidence rule is not really a rule of evidence but is instead a rule of substantive law. Wigmore on Evidence (3d. Ed.), § 2400; Williston on Contracts (Rev. Ed.), § 631; Rest., Contracts, § 237; 4 Ark. L. Rev. 168. As Wigmore puts it, supra: ‘What the rule does is to declare that certain kinds of facts are legally ineffective in the substantive law; and this of course (like any other ruling of substantive law) results in forbidding the fact to be proved at all.’ The practical justification for the rule lies in the stability that it gives to written contracts; for otherwise either party might avoid his obligation by testifying that a contemporaneous oral agreement released him from the duties that he had simultaneously assumed in writing.
Hence in the case at bar it makes no difference whether Late’s version of the oral negotiations is true or false. . . .

Likewise, in the case at bar, even though the verbal evidence and tentative drafts attending the negotiations be true, it cannot alter the terms of the clearly unambiguous written agreement as to his compensation for supervisory services. The contracting parties were knowledgeable and certainly capable of reducing their negotiations to unambiguous written terms. In such situations, we cannot interfere.

The court found that appellee was entitled to $3,100 for its owner’s expenses during the time he actually was “on the job.” The contract clearly provides for recovery of actual costs. In the circumstances, the court was justified in this award.

We deem it unnecessary to discuss appellant’s other contentions.

The judgment is modified to exclude the salary allowance.

Affirmed as modified.

Fogleman and Brown, JJ., dissent.

John A. Fogleman, Justice,

dissenting. The majority opinion is apparently based upon the premise that the existence of ambiguity must be determined by the court upon the basis of an examination of the contract. This is the case in determining whether there is a patent ambiguity. It is not in the case of a latent ambiguity. By definition, a latent ambiguity is one which does not appear upon the face of the instrument and cannot be detected by examination of the document. It arises from facts not disclosed in the instrument. Dorr v. School District No. 26, 40 Ark. 237. Latent ambiguity is defined at 3A C.J.S. P. 409, Ambiguity, as follows:

The term has been said to imply either, on the one hand, a concealment of the real meaning or intention of the writer which does not appear on the lace of the words used, until these words are brought in contact with collateral facts or until the facts are shown, or, on the other hand, a clear expression of the party’s intention, and the existence of a doubt not as to the intention, but as to the object to which the intention applies.
The term “latent ambiguity” is defined to mean an ambiguity which arises not upon the words of the instrument, as looked at in themselves, but upon those words when applied to the object or subject which they describe. It is one which does not appear on the face of the language used or the instrument being considered, or when the words apply equally to two or more different subjects or things, as where the language employed is clear and intelligible and suggests but a single meaning, but some extrinsic fact or evidence aliunde, creates a necessity for interpretation or a choice among two or more possible meanings.
It has been said that a latent ambiguity occurs where a writing appears on its face clear and unambiguous, but which, in fact, is shown by extrinsic evidence to be uncertain in meaning, or where a description, apparently plain and unambiguous, is shown to fit different pieces of property.

In order for the court to determine whether a latent ambiguity exists, it is obviously necessary that it consider evidence of extraneous and collateral facts as to extrinsic circumstances. Logan v. Wiley, 357 Pa. 547, 55 A. 2d 366 (1947). It is a well settled rule that extrinsic evidence is admissible to show that a latent ambiguity exists. Hall v. Equitable Life Assurance Society, 295 Mich. 404, 295 N.W. 204; McCarty v. Mercury Metalcraft Company, 372 Mich. 567, 129 N.W. 2d 854 (1964); Widney v. Hess, 242 Iowa 342, 45 N.W. 2d 233 (1951). See Ellege v. Henderson, 142 Ark. 421, 218 S.W. 831; Easton v. Washington County Insurance Co., 391 Pa. 28, 137 A. 2d 332. In treating the matter as it relates to the parol evidence rule, the author of Jones on Evidence (Vol. 3, p. 134, § 16:23) says:

In a preceding section it has been pointed out that where a written instrument appears to be complete on its face, a presumption will be indulged that the parties have included all of the terms of their agreement in the instrument.
While for all practical purposes, if such a presumption is indulged, it will have a conclusive effect to prevent bringing in additional terms, it does not have the effect of barring disclosure of hidden uncertainties, and to this extent the presumption is rebuttable and parol evidence admissible not only to bring out the latent ambiguity but to explain the true intent of the parties and to resolve the uncertainty, if it can be resolved, in order to save the contract.

To discover a latent ambiguity, it is proper to go outside the instrument to ascertain whether the words used aptly fit the facts existing when the instrument was executed and the words used. Widney v. Hess, supra; Queens Insurance Company of America v. Meyer Milling Co., 43 F. 2d 885 (8th Cir. 1930).

It is generally held that the question whether an ambiguity exists is one of law for the court. Steele v. McCargo, 260 F. 2d 753 (8th Cir. 1958); Easton v. Washington County Insurance Co., supra. In determining whether an ambiguity exists, a contract must be read in the light of what the parties intended as gathered from the language thereof in view of all surrounding circumstances. Arkansas Amusement Co. v. Kempner, 57 F. 2d 466 (8th Cir. 1932). See Ellege v. Henderson, supra; 17A C.J.S. 37, Contracts, § 294b(3) P. 37. The words of a contract, which are not ambiguous in the abstract, may, when considered in relation to the circumstances surrounding the making of it, create an ambiguity requiring interpretation. Arkansas Amusement Co. v. Kempner, supra; Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S.W. 833. See Ellege v. Henderson, supra; Easton v. Washington County Insurance Co., supra. In making the determination, courts may acquaint themselves with the persons and circumstances that are the subjects of the statements in the written agreement and place themselves in the position of the parties who made the contract, so as to view the circumstances as they did. Wood v. Kelsey, 90 Ark. 272, 119 S.W. 258.

There is another facet of the problem of admissibility of parol testimony to explain a contract very closely related to the question whether a latent ambiguity exists. Our cases clearly recognize that parol evidence is admissible to explain the meaning of the terms or words used when they have a technical meaning or, by custom and usage are used in a sense other than in an' ordinary meaning of the words. Paepcke-Leicht Lbr. Co. v. Talley, supra; Wilkes v. Stacy, 113 Ark. 556, 169 S.W. 796. In the case last cited, we quoted from Lawson on Contracts, Second Edition, 5 390, p. 450, as follows:

The customs of particular classes of men soon give to particular words different meanings from those which they may have among other classes, or in the community generally. Mercantile contracts are commonly framed in a language peculiar to merchants, and hardly understood outside their world. Agreements which are entered into every day in the year between members of different trades and professions are expressed in technical and uncommon terms. The intentions of the parties, though perfectly well known to themselves, would be defeated were the language employed to be strictly construed according to its ordinary meaning in the world at large. Hence, while words in a contract relating to the ordinary transactions of life are to be construed according to their plain, ordinary and popular. meaning, yet if, in reference to the subject-matter of the contract, particular words and expressions have by usage acquired a meaning different from their plain, ordinary and popular meaning, the parties using those words in such a contract must be taken to have used them in their peculiar sense. And so words, technical or ambiguous on their face, or foreign or peculiar to the sciences or the arts, or to particular trades, professions, occupations, or localities, may be explained, where they are employed in written instruments, by parol evidence of usage.

Obviously, the trial court found that an ambiguity existed. The pertinent contract terms hang upon the meaning of the words “supervision” and “actual cost.” The real issue is whether the salary and expenses of Benning while he was acting as superintendent of the Crossett job are a part of the “actual costs” as distinguished from the allowance of $20,000 for “supervision.” Benning testified that the charge in question covered only the time he spent on the North Crossett job, and that appellee employed no superintendent on the job, although there were four working foremen. It is significant that appellant thought that evidence of the original negotiations was admissible, because its attorney introduced evidence thereof by cross-examination of Benning over appellee’s attorney’s objection that it should be considered for impeachment only.

There was evidence that the following circumstances existed at the time the contract being construed was entered into:

Sutton Construction Company had failed. A representative of appellant had prepared a contract relating to unfinished sewer jobs at Hope and McGehee. Benning agreed with the two persons then representing appellant that he would not charge any of his time to these two jobs, but that it would be charged for the North Crossett job, which apparently had not been commenced by Sutton. Benning told the interested parties how much salary he was drawing ($300 per week) and that he was drawing $50 per week as expenses, which he said was to be charged to the Hope and McGehee jobs. According to Benning, it was agreed that he was to get a guaranteed profit of $20,000 on the North Crossett job and one-third of any profit, and his salary to be charged to the job was not included in the $20,000 figure. The first estimate made by appellee included two $20,000 items, one for profit and the other for supervision. On most construction jobs the size of the North Crossett job there is a construction superintendent. The original contract required that a construction superintendent or foreman who had full authority to act for the contractor be employed at the site.
Carrie New testified that he was familiar with the custom in the construction business as to whether the managing executive of a company is entitled to charge his salary to the job in addition to a fixed fee for supervision. He stated that the practice is that when the contract is let on a cost-plus fixed fee basis, the fee is over and above all job costs, which include office overhead, executives’ salaries, general contractor’s labor, material and all subcontract costs. Normally, he said, a corporation would have an office staff and executive officers, and the duties of the latter may vary in that they double as superintendents, estimators, expeditors and purchasers. In a small organization, he said that one man may act as all these. He was present when the final draft of the contract was made and did not understand that the $20,000 figure therein was to be for Benning's salary and expenses, but did understand that was a fee to be paid over and above any profit or whether any profit was realized or not. John W. Cole, Jr., appellee’s attorney at the drafting, was not familiar with usage in the construction field, but had the same understanding as New as to the $20,000. He recalled that there was discussion directed at the amount of Benning’s personal salary and stated that it was agreed that the $20,000 payment would not be a substitute for it. A portion of the stated contract form of the American Institute of Architects for use when cost of work plus a fixed fee forms the basis of payment was introduced as an exhibit. It contained a clause under the heading of “Costs to be Reimbursed” providing for payment of salaries of the contractor’s employees stationed at the field office in whatever capacity employed.

The contract in question was not abstracted but the paragraph in question is stated thus:

It is further agreed that 2nd Subcontractor will receive S20.000.00 for supervision which will be added to actual cost, figure. It is further agreed that the difference between actual cost and bid price will be divided as follows: 33-1/3% to 2nd Subcontractor; 66-2/3% to 1st Subcontractor. (Plaintiff's Exhibit No. 2)

It must be noted that the payment of this 120,000 was to be made to appellee, a corporation, and not to Benning. Appellant’s attorney emphasizes the fact that this language constituted a change of the same paragraph in the next preceding draft in that it was therein provided that “the 2nd Subcontractor will, nevertheless, receive the sum of S20.000 for his supervisory services.”

I do not see how we can say the court erred in holding that the contract was ambiguous in view of the surrounding circumstances and collateral facts. If it was ambiguous, then we only have to determine whether there is any substantial evidence to support the judgment, since the judge also sat as the jury, and the question was for the jury. Ft. Smith Appliance & Service Co. v. Smith, 218 Ark. 411, 236 S.W. 2d 583; Bailey v. Sutton, 208 Ark. 184, 185 S.W. 2d 276; Paepcke-Leicht Lbr. Co. v. Talley, 106 Ark. 400, 153 S.W. 833.

Once it was shown that there was a latent ambiguity or that the words used by the parties were commonly accorded a meaning different from their ordinary meaning, oral evidence was admissible to explain them. Ft. Smith Appliance & Service Co. v. Smith, supra; Paepcke-Leicht Lbr. Co. v. Talley, supra; Ellege v. Henderson, 142 Ark. 421, 218 S.W. 831. Evidence of the way in which a particular term is understood commercially, or in a particular trade or business is admissible, as is evidence of custom and usage, including local popular and ?eneral use. Paepcke-Leicht Lbr. Co. v. Talley, supra; Taylor v. Union Sawmill Co., 105 Ark. 518, 152 S.W. 150; McCarthy v. McArthur, 69 Ark. 313, 63 S.W. 56; Jackson County Gin Co. v. McQuistion, 177 Ark. 60, 5 S.W. 2d 729; Davis v. Martin Slave Co., 113 Ark. 325, 168 S.W. 553. Testimony of the parties as to the meaning of the tehns is also admissible. Ellege v. Henderson, supra. Parol evidence is also competent to explain the situation and relation of the parties and the surrounding circumstances at the time of the execution of the contract. Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S.W. 830.

The matter is treated in the Uniform Commercial Code. See Ark. Stat. Ann. § 85-1-205 (Add. 1961). A usage of trade in the vocation or trade in which the parties are engaged or of which they should be aware gives particular meaning to and supplements or qualifies terms of an agreement. Ark. Stat. Ann. § 85-1-205(4). An applicable usage of trade in the place where any part of performance is to occur shall be taken into consideration as to that part of performance is to occur shall be taken into consideration as to that part of performance. A usage of trade is any practice or method of dealing having such regularity of observance in a place, vocation or trade as to justify an expectation that it will be observed with respect to the transaction in question. Ark. Stat. Ann. § 85-1-205(2), (5). The committee comments are particularly enlightening. In part, they are:

This Act rejects both the “lay-dictionary” and the “conveyancer’s” reading of a commercial agreement. Instead the meaning of the agreement of the parties is to be. determined by the language used by them and by their action, read and interpreted in the light of commercial practices and other surrounding circumstances. The measure and background for interpretation are set by the commercial context, which may explain and supplement even the language of a formal or final writing.
* * *
This Act deals with “usage of trade” as a factor in reaching the commercial meaning of the agreement which the parties have made. The language used is to be interpreted as meaning what it may fairly be expected to mean to parties involved in the particular commercial transaction in a given locality or in a given vocation or trade. By adopting in this context the term “usage of trade” this Act expresses its intent to reject those cases which see evidence of “custom” as representing an effort to displace or negate “established rules of law.”
* * *
A usage of trade under subsection (2) must have the “regularity of observance" specified. The ancient English tests for “custom” are abandoned in this connection. Therefore, it is not required that a usage of trade be “ancient or immemorial,” “universal” or the like. Under the requirement of subsection (2) full recognition is thus available for new usages and for usages currently observed by the great majority of decent dealers, even though dissidents ready to cut corners do not agree.

See also, 17 Am. Jur. 2d 643, Contracts, § 251.

In addition to the evidence set out ahove, there was other substantial evidence in appellee’s favor. Benning testified he spent 95% of his time on the North Crossett sewer job. Carrie New said that Benning acted as construction superintendent on the North Crossett job and that he knew of no other person employed in that capacity.

It is true that there is also evidence from which a contrary result might have been reached, but this does not affect the substantiality of the evidence to support the conclusion reached by the court sitting as a jury. I would affirm the judgment.

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


author: CARLETON Harris, Chief Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Roy HORTON et ux and Eugene HORTON et ux
    73-303
    509 S.W. 2d 551
    Opinion delivered May 28, 1974

      Thomas B. Keys and Kenneth R. Brock, for appellant.

      Matthews, Purtle, Osterloh & Weber, for appellees.
   CARLETON Harris, Chief Justice.

This is a highway condemnation case, involving the widening of U. S. Highway 65 through the Town of Marshall. The project involves the taking of a five foot strip of land across the front of appellees’ property. Situated on Roy Horton’s property are two service stations and a commercial building. A commercial building being used as a discount store is located on the property of Eugene Horton. The principal witness for appellees was Gene Lair of Harrison, a real estate broker, appraiser and home builder, who testified that he had been engaged in the real estate business since 1963. He is a member of the Arkansas Real Estate Association, the Local Board of Harrison District Board of Realtors, and testified that he had made appraisals of real estate in the general area, including appraisals for banks, as well as other lending institutions, and the Veterans Administration. In calculating his before value of the properties, Mr. Lair separated the Roy Horton tract into the three businesses, heretofore mentioned, and he explained his procedure in determining the before value as using the cost approach, income approach and, in the case of the property on which an American Oil station is located, a “capitalization approach. ” He stated that in his opinion, the fair market value of Roy Horton’s property before the taking was $77,500, excluding all vacant property since he did not feel that the last mentioned was damaged by the taking. His after-the-taking figure was $40,950, leaving the amount of damage, in his opinion, to be $36,550. Two of the buildings, heretofore mentioned, were service stations, the before value of the American Oil station being set at $16,500 and the after value at $7,650. On a Texaco station located on the Roy Horton property, Lair set a before value at $19,000 and an after value of $9,500. The building mentioned, which houses a laundromat and office space, was given a before value of $42,-000, and an after value of $23,800. The witness went rather into detail in explaining how he arrived at these values, and stated that his after value was determined on the basis of problems incurred by the taking, mainly restrictions on the property, such as limited access and loss of some of the service facilities. For instance, in referring to the American Oil Company station, he mentioned that there could be no outside serving of vehicles at the pumps as they are presently located. He also testified that there could be no outside servicing at the Texaco station, and in fact, the attorney for the State agreed that after the highway department completed the job, vehicles could not be serviced in the area between the pumps (as they presently exist) and the new highway. According to the testimony of the operator of the station, moving the pumps back would make much more difficult the rendering of other services customarily performed by the attendants at the service station.

As to the commercial building, the big item of damage was the taking away of about one-third of the parking space. The evidence reflected that it housed a laundromat, law office, and the Social Services Office. The owner and operator of the laundromat testified that approximately 30 to 40 vehicles came to his place of business each day, staying from 30 minutes to two hours; that there was parking in front and on both sides of the building, such parking space remaining practically full. Mrs. Dorothy Hall, Director of Social Services, testified that her offices were in the building just north of the laundromat. When asked the average number of persons that would come to the office, she stated that from June 1 to August 20, there was an average of 130 persons per month and this would be consistent for the entire year.

As to the building owned by Eugene Horton, the principal evidence related to loss of parking facilities, the proof showing that he lost half of his parking places.

In arguing that there was no substantial evidence to support the verdict, the commission urges that the $1.00 per sq. ft. value was not supported by comparable sales; that sales in the Marshall area reflected a value of $.58 per sq. ft., and that, to justify the figure reached, the witness resorted to sales of service station sites in Harrison and Yellville, the former city being about 40 miles away, and the latter a little more. Apparently, comparable sales in Marshall, i.e., sales of service station sites, were rather limited, as witnesses for the State mentioned only one, a sale back in 1968.

While quite a bit of the evidence we have mentioned came from parties other than Lair, the argument that there was no substantial evidence to support the verdict is based upon the testimony of this witness. It might be here mentioned that, though the transcript itself shows that counsel for the commission moved to strike the value set by Lair on the grounds that the latter had not given a fair and reasonable basis for his figures (such motion being denied), this motion does not appear in the abstract; we have frequently said that it is entirely impractical for the members of this court to individually examine each transcript and that motions and rulings of the court must be abstracted; otherwise, asserted errors will not be considered. Since this motion was not abstracted, and is vital to appellant’s contention, we would thus be justified in affirming the judgment on that basis. At any rate, we do not agree with the contention.

In Arkansas Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563, and cases cited therein, we pointed out that, in determining whether a verdict is supported by substantial evidence, we must review the testimony in the light most favorable to the appellee and indulge all reasonable inferences in favor of the judgment. In the case before us, there is no contention that Lair was not qualified as an expert on real estate values in the area, and his testimony reflected a rather thorough examination of the properties. The jury heard his evidence, that of the other witnesses on behalf of appellees, and heard likewise the testimony of the witnesses for appellant, whose values were substantially different from those given by Lair. The jury likely was also familiar with the property in question, and was certainly in far better position than this court to determine which asserted values were more nearly correct. It might also be noted that Mr. Lair’s figures were not taken at face value since he estimated total damages at $42,800, and the verdict returned was for $23,516.67. Certainly, we are unable to say, as a matter of law, that there was no substantial evidence to support the award.

Affirmed.

       There was a total taking of 3,287 sq. ft.

       From the testimony:
      “Q, While we are thinking about it, did you go out Tuesday and measure to see what the distance was from the, how much land the property owner has now between the pumps and the highway?
      A. Yes, I did.
      Q. What did that figure come to?
      A. One side of the pump island we had an eight foot ten inch slab and the other side was eight foot six inches.
      Q, There was a little difference then?
      A. Yes, there was a little deviation because of the slant there. It appeared obvious that the edge of the slab is the edge of the private property ownership and also the right-of-way line. After taking somewhat like two foot eight inches left on the outside of the pump island there will be no service area remaining.”

       According to Bryan McArthur, an expert witness for the State, this property sold for $.40 per sq. ft.


author: CARLETON HARRIS, Chief Justice.

text:
    City of MULBERRY v. P. Poe SHIPLEY et ux
    74-18
    509 S.W. 2d 536
    Opinion delivered May 28, 1974

      Jeta Taylor (Deceased) and Ralph Robinson, for appellant.

      N. D. Edwards and Lonnie Batchelor, for appellees.
   CARLETON HARRIS, Chief Justice.

Appellant, City of Mulberry, instituted a condemnation suit in the Circuit Court of Crawford County, condemning 13.4 acres in fee, 2.4 acres in highway right-of-way easements, and a 40 acre flowage easement, all out of appellees’ 100 acre tract. The sum of $6,460 was deposited in the registry of the court as estimated just compensation for the taking, but the landowners, answering, alleged that the deposit was insufficient. Thereafter on trial, the jury returned a verdict of $18,400, and from the judgment entered in accordance with such verdict, appellant brings this appeal. For reversal, four points of alleged error are asserted which we proceed to discuss in the order listed.

It is first alleged that the trial court erred in refusing to exclude the testimony of Robert Geliy, a witness on behalf of appellees. This witness qualified as an expert in land appraisals, and was a resident of Crawford County. His testimony established his general familiarity with the property in the area, but he did not list any comparable sales in reaching his before and after value figures. Geliy stated that the fair market value pf the property before the taking was $32,500; the after value was $11,650, and the witness concluded the property had been damaged to the extent of $20,850. On cross-examination, no questions were asked Geliy relative to comparable sales, and on re-direct examination, Geliy was asked to list two or three of the comparable sales that he used in reaching his values. Counsel for appellant then asserted that this was not proper re-direct examination and the court inquired if appellees desired to ask the witness about comparables. Appellees’ counsel replied, “Not particularly, but Mr. Robinson objected and I assume that’s the basis of his objection. We had no reason not to ask him. He has them.” Appellant then moved to strike Geliy’s testimony in that he had not shown any fair and reasonable basis for his before and after value and the damages. The court held that Geliy had qualified as an expert and had a right to testify relative to his opinion of damages and that the matter, if deemed important by appellant, could have been inquired about during cross-examination. Counsel for appellees then stated that he was prepared and willing for the witness to list his comparables and had attempted to do so but appellant objected. We find no error for two reasons. In Arkansas Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563, we said:

“Appellant contends that the testimony of Mr. Charles Owens, an expert value witness called by appellees, did not constitute substantial evidence because he never did give the values of comparable sales used by him in arriving at his value testimony in dollars and cents, although he admitted that some of the sales upon which he based his valuations were of more valuable property than the property of appellees. Appellant admits that this witness qualified as an expert on real estate values in the area. He also showed his familiarity with the property in question. Under these circumstances he was not required to state the facts or reasons forming the basis for his opinion in order to render his opinion as to value admissible. [Citing cases].”

In the next place, appellees did offer to list the comparable sales but appellant apparently was unwilling for this to be done.

It is next asserted that the trial court erred in refusing to instruct the jury on enhancement and in refusing to give appellant’s requested instruction which would have presented this theory of the case to the jury. There was brief testimony by J. R. Battenfield, a witness for the city, to the effect that Shipley had a dust problem from the present road, and the new road to be constructed in a different location would relieve such dust problem; it is argued that the removal of this problem enhanced the value of the remaining portions of the tract. There was also testimony by A. J. Stan-diford, an expert offered by the city, to the effect that the new road “might open up some more of his land with a better road so he might have a better deal.” The witness, however, did not know the location of the right-of-way, and said that it had not been “staked out.” We think the testimony was too meager to justify an enhancement instruction and in fact there was no evidence as to how much the property would be enhanced, if at all.

It is also asserted that the location of the road was changed at the request of Mr. Shipley; that this necessitated removing a barn on the Shipley property, and that Shipley, because the change had been made at his request, was not entitled to recovery of the cost of removal. We find no testimony in the record by any witness including removal of the barn as damages incurred by Shipley, nor were there any figures relating to the cost of such removal. Mac Bolding, an appraiser on behalf of appellees, stated that he added the value of the improvements in appraising the property, but took the improvements out at the same figure. Accordingly, the instruction was abstract and there was no error in refusing to give it.

It is finally asserted that there is no substantial evidence to support the verdict, which appellant contends was grossly excessive. Under this point, it is asserted that the sales used by Bolding were not comparable, and that he, in effect, “by passed” sales of land which were comparable to the Shipley property. It is true that witnesses for appellant mentioned sales which were not testified to by Bolding, and which might have been considered more comparable, but this was a matter for the jury to determine, since they heard the witnesses for both sides. There was no motion to strike any of Bolding’s testimony, nor any motion to strike the values he reached. Accordingly, the trial court was not requested to declare, as a matter of law, that his testimony fell short of that legally required. We have already said that the testimony of Geliy, as an expert, was admissible and it follows that there is no merit under this point.

Affirmed.

       He did not include improvements in reaching his values.


author: George Rose Smith, Justice.

text:
    Sandra Alice PEREZ v. Salvador PEREZ Jr.
    74-19
    509 S.W. 2d 531
    Opinion delivered May 28, 1974

      Hardin, Jesson & Dawson, for appellant.

      Warner & Smith, by: Lelland Cody Hayes, for appellee.
   George Rose Smith, Justice.

The only issue here is the custody of the parties’ two sons — Shawn, now almost four years old, and Shane, about two. The chancellor granted the husband a divorce, on the ground of indignities, and awarded him the custody of the children. For reversal it is argued that the custody award is against the weight of the evidence.

At the trial the issue of custody was primarily one of fact. The couple were married in 1969, when Salvador was 21 and Sandra was 18. The children were born within the next three years, about 19 months apart. In May, 1973, Sandra asked her husband for a divorce and offered him the custody of the two boys. Salvador did not want a divorce and proposed going to a marriage counselor, but Sandra refused. In June the couple signed an agreement prepared by a lawyer, dividing their property and recommending that the husband be awarded custody of the children. When the suit was filed, however, Sandra changed her mind and sought custody.

According to the appellee’s proof, Sandra was careless about keeping the infants clean and was inattentive in other respects. During the pendency of the suit she had temporary custody, but she would leave the children with her parents or, if they were not available, with the appellee. Sandra denied part of the appellee’s charges, but she admitted that it was her idea to give Salvador the children in the first place and that at the time of the trial she had a “crush” on an older man who worked at the plant where she was employed. There is no proof of immorality on her part.

Although our decisions tend to favor the mother when the children are very young, there is no inflexible rule giving her the right of custody. We have said that in no type of case do the personal observations of the chancellor mean more then they do in a child custody matter. Wilson v. Wilson, 228 Ark. 789, 310 S.W. 2d 500 (1958). In the case at bar the question to be decided is a difficult one, but after a careful study of the record we cannot say that the chancellor’s decree is clearly against the preponderance of the evidence. We forgo an extended discussion of the testimony, as being of negligible value as a precedent.

Affirmed.

Harris, C.J., dissents.


text:
    Reginald TRAVIS v. STATE of Arkansas
    CR 74-25
    509 S.W. 2d 550
    Opinion delivered May 28, 1974

      Harold L. Hall, Public Defender, by: Robert L. Lowery, Dep. Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: 0. H. Hargraves, Dep. Atty. Gen., for appellee.

      Lee A. Munson, Pros. Atty., by. John Wesley Hall, Jr., Dep. Pros. Atty., amicus curiae.
   George Rose Smith, Justice.

By this petition under Criminal Procedure Rule 1 the appellant seeks credit upon his 3-year prison sentence for the time he spent in the Pulaski County jail awaiting trial. The circuit judge denied relief.

Travis was confined to jail on December 2, 1970, and was charged with first-degree rape. He made no application to the court to set bail. His trial began on December 7, 1971. Upon the second day of trial the proceedings were terminated by a negotiated plea of guilty to assault with intent to commit rape, with a 3-year sentence. There was no request for the allowance of jail time until the present petition was filed.

The judgment must be affirmed upon the authority of Smith v. State, 256 Ark. 425, 508 S.W. 2d 54 (1974). There, as here, the Rule 1 petitioner was charged with a capital offense, which was not bailable as a matter of right until the Supreme Court’s decision in Furman v. Georgia, 408 U.S. 238, decided on June 29, 1972, which was after the Rule 1 petitioner’s trial in the Smith case, as in this one. There we said: “The filing of the information raised a presumption of appellant’s guilt for the purpose of arrest, detention and trial sufficient to preclude him from the right of bail until it was rebutted by an affirmative showing on his part.” We accordingly concluded that the petitioner had not shown a discriminatory denial of bail upon the basis of indigency alone. Since we cannot distinguish the Smith case from this one, it is a controlling precedent.

Affirmed.


author: Lyle Brown, Justice.

text:
    FARM BUREAU MUTUAL INSURANCE Company of Arkansas, Inc. v. James D. HORNE
    74-20
    510 S.W. 2d 70
    Opinion delivered May 28, 1974
    [As amended on Denial of Rehearing June 24, 1974.]

      Laser, Sharp, Haley, Young & Boswell, for appellant.

      John M. Lofton Jr. and Fulk, Lovett & Mayes, for appellee.
   Lyle Brown, Justice.

This appeal is from a judgment against appellant, Farm Bureau Mutual Insurance Company of Arkansas, Inc., in favor of appellee, James D. Horne, on a marine insurance contract. The issues in the trial court were whether there was a theft of appellee’s boat and motor after the insurance contract went into effect, and if so, the fair market value of the lost property within the limits of the coverage afforded. On appeal it is argued (1) that the court erred in allowing certain testimony which tended to show the property was stolen after the effective date of the contract, and (2) that the assessed damages of $2,550 were in excess of the contractual coverage.

There were two different versions of the effective date of the insurance. Appellant contended that the insurance became effective by binder dated noon, May 9, 1970. Appellee contended that agent John Hartón, by telephone, accepted coverage on May 4, 1970. As far as we can tell no insurance policy was ever issued because the alleged theft occurred within such short time after the effective date of the binder.

It was appellee’s contention the boat and motor were stolen from a dock near Hot Springs sometime in the afternoon of May 9. Appellee said he found the boat and motor missing about 6:30 p.m. on that date. He said the ropes had been cut. The manager of the marina, Ray L. Pascal, testified he had around 160 boats in his care and that they were checked twice daily for thefts. He said that on May 9 he checked the boats early in the morning and appellee’s boat was in its stall. He testified that two rounds of inspection were regularly made each day, and that such practice was a part of his regular course of business. He said the afternoon check was made on Saturday, May 9, by one of his employees; that if a boat had been missing that fact would have been reported to him (Pascal); and that he received no notice that any boat was missing from its stall. Appellant timely objected to the last recited testimony, and contended particularly that it violated the hearsay rule. Appellant here contends that reversible error was committed in admitting the testimony. We agree.

Wigmore, 3rd Ed., Evidence, beginning at § 1521, discusses the most common exceptions to the hearsay rule, the principal one being entries made in the regular course of business. Then in § 1528 he relates the general rule to be that such statements to be admissible must be written as opposed to oral. Had the witness Pascal attempted to testify that his afternoon inspector came to him and related that no boats were missing, it would clearly have been hearsay. We think the same rule should be applied when Pascal offered to testify that no report of a missing boat was made to him by the in-espector. The evil is the same in either situation. Giving his testimony in negative form creates the same handicap for appellant had the testimony been in the affirmative form; appellant was deprived of cross-examining the inspector who is alleged to have made the afternoon inspection. See Wigmore, supra § 1362, and Barnes and York v. State, 215 Ark. 781, 223 S.W. 2d 503 (1949).

An Arkansas case somewhat in point is Railway Express Agency v. Skull, 224 Ark. 476, 275 S.W. 2d 882 (1955). Shull claimed damages to a shipment of strawberries. A witness for Railway Express offered to testify that he talked with strawberry growers in Shull’s territory and that they made no complaints as to their shipments being damaged. The trial court excluded the testimony. This court sustained the ruling, holding among other things, that the answer would fall within the hearsay category. Also, see Siegel v. Penny & Baldwin, 176 Ark. 336, 2 S.W. 2d 1082 (1928). Appellee bought some water pipe from appellant and sued for damages, alleging the pipe was not in serviceable condition. This court held that the trial court properly excluded appellant’s testimony to the effect that appellant had sold pipe to other customers who made no complaint. Also, see Reese v. Haywood, 235 Ark. 442, 360 S.W. 2d 488 (1962). In that libel suit appellant sought to testify that the published defamatory information came to the attention of his friends and associates. We agreed with the trial court that the proffered testimony offended the hearsay rule.

Since the case is remanded for new trial, we need not treat the other point.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Ronnie WHEELESS v. EUDORA BANK
    74-11
    509 S.W. 2d 532
    Opinion delivered May 28, 1974

      W. H. Drew, for appellant.

      W. K. Grubbs Sr., for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of a deficiency judgment entered against him on a directed verdict in an action by appellee to recover the balance due on a promissory note signed by him. In December of 1969, appellant’s mother and father were experiencing marital troubles which eventually culminated in divorce. Appellant’s father was the title holder of an automobile on which he was indebted to appellee. He transferred the title to appellant who executed a promissory note to appellee for $2,196.36, representing principal, discounted interest and credit life insurance premiums. The debt was secured by a security agreement covering the car. At this time appellant was 19 years old and on leave from military service. When he returned to duty, the vehicle remained in Eudora in the possession of his mother. Five payments were made on the note, the last one having been made in November of 1970. All five were made by appellant’s mother. Since payments on the note had become delinquent, appellee, in January of 1971, requested appellant’s mother deliver the car to appellee. She did not do so, but had the car parked in her yard where it remained until March or April of 1972.

Joe Arnold, vice-president of appellee bank, testified that when appellant returned from military service in August of 1971, he talked to appellant about the delinquent payments and appellant indicated he intended to pay for the car. However, no further payments were made and Eudora Motor Company, acting for appellee, picked up the car. Arnold said that prior to the repossession of the vehicle, appellant had come to the bank and signed the title over to appellee. Although Arnold testified that he had no conversation with appellant at that time, he said he got the impression that appellant acquiesced in the repossession and subsequent sale of the car. Arnold said that in the last conversation between him and appellant, he had told Wheeless that the bank needed to pick up the car and sell it so the deficiency would not be so high. On the other hand, appellant stated he signed the title over after the car had been picked up and sold. He testified no one discussed the sale with him at any time and said he had not consented to the procedure.

After repossession the car was repaired and exhibited for sale on the used car lot of Eudora Motor Company. A few weeks later it was sold for $550. Appellee then filed suit seeking a deficiency judgment of $1,292.88 with interest from February 22, 1971. Arnold testified that after the sale, he reported the sale to Wheeless and showed him the amount of the deficiency. He stated that Wheeless made no objection and promised to make payments. Arnold insisted that he told Wheeless in advance that the bank was going to repossess the car and sell it, but admitted that he mentioned no specific date. Arnold’s excuse for not telling Wheeless when the automobile would be sold was that he had no idea when Eudora Motor Company would sell it. Wheeless surrendered the keys to the car to a representative of the Eudora Motor Company when it took possession. Following the conclusion of all the testimony presented at the trial, the court instructed a verdict against appellant for the deficiency.

Appellant contends the trial court erred in directing a verdict since appellee failed to pursue the default procedures regarding notice as to sale after repossession as required by the Uniform Commercial Code [Ark. Stat. Ann. § 85-9-504 (Supp. 1973)] and in ruling that appellant was estopped to assert this defense because he had prior knowledge of the sale. He also alleges that he was only an accommodation maker for his mother’s benefit and that because of his minority he was entitled to rescind the agreement. We agree that the trial court erred in applying estoppel and in directing a verdict. The testimony presented a jury question as to whether appellant had prior knowledge of the sale and had waived his right to notice under § 85-9-504.

Prior to a sale of the collateral in its possession after default, a secured party is required to give notice to the debtor of the time and place of a public sale or the time after which a private sale is intended, unless the collateral is perishable, threatens to decline rapidly in market value or is of a type customarily sold on a recognized market. Ark. Stat. Ann. § 85-9-504 (3). A used automobile fits none of these exceptions to the notice rule as a matter of law. The question is one of fact. Abbott Motors, Inc. v. Ralston, 28 Mass. App. Dec. 35, 5 UCC Rep. Serv. 788 (1964). There is no evidence in the record that a used car declines rapidly in value. No recognized market for used cars was shown to have existed. See Norton v. National Bank of Commerce, 240 Ark. 143, 398 S.W. 2d 538.

Appellee admits it did not comply with the notice requirement but asserts that appellant had prior knowledge of the sale which constituted a waiver of his right to notice and that, having such knowledge, he was estopped to claim lack of notice as a defense. The testimony of appellee’s vice president, Arnold, was in direct conflict with that of appellant as to whether appellant was told of the sale, and signed over the title before or after the sale occurred. Appellee also contends this was a private sale and appellant’s statement that he knew the car had been repossessed and his surrender of the keys to employees of Eudora Motor Company amounted to an admission he had notice that after that time the car was subject to private sale. The notice provision of Ark. Stat. Ann. § 85-9-504 requires more than this. Knowledge of repossession does not equate with notice of sale, nor does knowledge that an automobile will eventually be sold. The debtor is entitled to notification of a specific date after which the creditor intends to dispose of the property. This would provide the debtor a fixed period within which to protect himself from an inadequate sale price in any manner he saw fit. Nelson v. Monarch Investment Plan of Henderson, Inc., 452 S.W. 2d 375, 7 UCC Rep. Serv. 394 (Ky. March 27, 1970). Therefore, the determination of whether appellant had prior knowledge of the sale and whether that knowledge would estop him from asserting lack of notice as a defense must be made on the basis of the conflicting testimony of appellant and Arnold.

We are committed to the doctrine that, since estoppel bars the truth to the contrary, the party asserting it must prove it strictly, there must be certainty to every intent, the facts constituting it must not be taken by argument or inference and nothing can be supplied by intendment. Ford Motor Credit Co. v. Exchange Bank, 251 Ark. 881, 476 S.W. 2d 208; McFaddin v. Bell, 168 Ark. 826, 272 S.W. 62. The evidence supporting the claim of estoppel in this case is certainly not free from argument. The trial court erred in ruling that appellant was estopped to assert lack of notice as a defense.

In determining whether a directed verdict was proper we must take that view of the evidence which is most favorable to the party against whom the verdict was directed, and if there is any substantial evidence tending to establish an issue in his favor, it is error for the court to take the case from the jury. Page v. Boyd-Bilt, Inc., 246 Ark. 352, 438 S.W. 2d 307. In testing whether there is substantial evidence, the testimony and all reasonable inferences deducible therefrom must be viewed in the light most favorable to the party against whom the verdict is directed, and, if fair-minded men might reach different conclusions, it is error to direct a verdict. Page v. Boyd-Built, Inc., supra; Huffman Wholesale Supply Co. v. Terry, 240 Ark. 399, 399 S.W. 2d 658. When there is conflicting evidence and the evidence is subject to different inferences, as in this case, the motion for a directed verdict should be denied and the cause submitted to the jury. Home Mutual Fire Ins. Co. v. Cartmell, 245 Ark. 45, 430 S.W. 2d 849; Huffman Wholesale Supply Co. v. Terry, supra.

Appellant also contends that his minority at the time of entering into this transaction entitled him to rescind the agreement by signing the title over to the bank. Rescission by a minor 18 or over is governed by Ark. Stat. Ann. § 68-1601 (Repl. 1957) which allows rescission only when the minor makes full restitution to the other party. Full restitution means that the property must be returned in substantially the same condition as received; or if this cannot be done, there must be a return of the property plus a sum of money which equals the difference between the fair market values at the time of sale and at the time of rescission. Ark. Stat. Ann. § 68-1601. Appellant’s entitlement to rescind was subject to the limitations of the statute. Security Bank v. McEntire, 227 Ark. 667, 300 S.W. 2d 588.

Appellant’s contention that he has no liability to appellee because he signed the note as the maker only as an accommodation for the benefit of his mother is without merit. Even if the evidence were to show that appellant did sign to accommodate his mother, a point we do not decide, he would still be liable to appellee on the note. An accommodation party is one who signs an instrument in any capacity for the purpose of lending his name to another party to it. Ark. Stat. Ann. § 85-3-415 (1) (Add. 1961). When the instrument has been taken for value before it is due, the accommodation party is liable in the capacity in which he has signed even though the taker knows of the accommodation. Ark. Stat. Ann. § 85-3-415 (2) (Add. 1961); Rushton v. U.M. & M. Credit Corp., 245 Ark. 703, 434 S.W. 2d 81; National Surety Corp. v. Crystal Springs Fishing Village, 326 F. Supp. 1171 (W.D. Ark. 1971).

We cannot subscribe to appellee’s argument that, at worst, the direction of a verdict was invited error. It appears to us that when the court overruled appellant’s motion for a directed verdict at the conclusion of appellee’s proof after argument of counsel for both sides, appellant’s counsel stated his assumption that the court was holding that appellant was estopped as a matter of law. The circuit judge then stated “Alright, I am holding that way then.” After further argument, the judge stated that all appellant’s motions for a directed verdict were overruled. Appellant’s attorney then said, as he saw it, appellee would then be entitled to a directed verdict. Appellee’s counsel then said his client would not be, until appellant rested. The verdict was not then directed, but appellant thereafter testified in his own behalf and called his mother as a witness. Appellee also called Arnold as a witness in rebuttal. Then, after extensive arguments relating to motions for directed verdict by appellant and by appellee, as to certain defenses made by appellant, appellee moved for a directed verdict, on the whole case. This certainly was not by invitation of appellant.

For the reasons stated, the judgment is reversed and the cause remanded for a new trial.


author: J. Fred Jones, Justice.

text:
    Lester Lee HOPPER and Imogene I. HOPPER, his Wife v. Kathern HUNTER, a Minor, Eldon HUNTER and Verna HUNTER, his Wife, Parents of Kathern HUNTER, a Minor
    74-23
    509 S.W. 2d 548
    Opinion delivered May 28, 1974

      Alonzo D. Camp, for appellants.

      Lewis & Mitchell, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Lester Lee Hopper and his wife Imogene from an adverse judgment of the circuit court sitting as a jury in a personal injury and property damage suit filed by the Hoppers against the appellee Kathern Hunter, a minor, and her parents Eldon Hunter and Verna Hunter. On appeal to this court Mr. and Mrs. Hopper contend that the trial court erred in rendering judgment for the defendants as there was no substantial evidence to support such judgment.

The facts about which there is no controversy appear as follows: On September 1, 1971, Mr. and Mrs. Hopper and their children were traveling south on state Highway 227 in Garland County in their Ford camper-type van with Mr. Hopper driving. Miss Kathern Hunter was traveling in the same direction in her mother’s 1965 Dodge automobile and as she started to pass Mr. Hopper on the highway, the right front fender of the Hunter automobile came in contact with the left rear corner of Mr. Hopper’s van. Mr. Hopper lost control of his vehicle, it turned over, and he and Mrs. Hopper were injured.

The Hoppers alleged in their complaint that their personal injuries and property damage were caused by the negligence of Kathern Hunter. Mrs. Verna Hunter filed a counterclaim for property damage and alleged that her damage was caused by the negligence of Mr. Hopper. A jury was waived by agreement of the parties and the case was tried before the trial judge sitting as a jury. The trial court found that the negligence of Mr. Hopper was the proximate cause of his and Mrs. Hopper’s injuries, and that the negligence of Miss Hunter was only slight in comparison to the negligence of Mr. Hopper. The trial court entered judgment in favor of the Hunters on the complaint and in favor of the Hoppers on the counterclaim. The evidence was in considerable conflict but the only question presented on this appeal is whether there was any substantial evidence to sustain the findings and judgment of the trial court in favor of the Hunters on the complaint. Mrs. Hunter did not appeal.

We deem it unnecessary to set out the testimony of the witnesses in detail so we only give the substance of their testimony here. Mr. Hopper testified that he was driving down the two-lane highway in a careful and lawful manner and that Miss Hunter simply ran into the back of his vehicle.

Mrs. Hopper testified that they were driving down Highway 227 and had slowed down for a bad place or rough spot in the road. She said her husband had turned his directional lights on and had gone around the bad place in the highway when Miss Hunter ran into the rear of their vehicle.

Denise Hopper, age 16, testified that she was riding in the back of her father’s camper and that she knew where Miss Hunter lived. She said she saw Miss Hunter leave the driveway of her home and drive out into the highway following their camper van. She said Miss Hunter drove from one side of the highway to the other as she followed their vehicle approximately three miles to the point where the collision occurred. She said her father had turned on the directional light in preparation to go around a hole in the righthand side of the highway when Miss Hunter drove her automobile into the rear of the van. Evelyn Hopper, age 12, testified substantially as did her sister Denise.

Miss Kathern Hunter testified that the Hopper van passed her home as she was preparing to leave in her mother’s automobile about 3:45 p.m. to pick up her brothers at the Lake Hamilton School. She said she followed the Hopper vehicle for about three miles during which time its left directional light was on and continued to blink during the entire distance. She said she finally started around the camper van on a straight section of the highway and as she drove to the lefthand side of the highway for that purpose, the van also pulled to the left side of the highway and continued to crowd her automobile on the lefthand side of the highway until the rear left corner of the camper van struck her right front fender, after which the driver of the van lost control and it overturned in the highway.

A police investigation report was placed in evidence. It indicated that as the Hunter vehicle was on its lefthand side of the highway in the process of passing the Hopper vehicle, the Hopper vehicle also moved to the lefthand side of the highway in order to avoid a large defect in the pavement on the righthand side of the highway; and, as a result, the left rear corner of .the Hopper vehicle collided with the right front fender of the Hunter vehicle and the Hopper vehicle overturned two or three times.

The evidence in this case simply comes down to a question of whose testimony the trial court, sitting as a jury, was inclined to believe. The trial court in this case who saw the witnesses as they testified from the witness stand, apparently believed Miss Hunter’s version of how the collision occurred and, when we view her testimony along with the police report, we conclude there was substantial evidence to support the trial court’s finding, and that the judgment must be affirmed.

Affirmed.


author: CONLEY Byrd, Justice.

text:
    Juanita JONES et al v. George SCOTT et al
    74-17
    509 S.W. 2d 831
    Opinion delivered May 28, 1974
    [Rehearing denied June 24, 1974.]

      Henry C. Morris, for appellants.

      Fred E. Pickett, for appellees.
   CONLEY Byrd, Justice.

At issue here are the rights of the public, appellees George Scott, et al, versus the landowners, appellees Juanita Jones, et al, in and to a gravel bar adjacent to Stallion Ford on Littíe River. The trial court somewhat inconsistently found that there was no prescriptive right in the public to use the gravel bar for camping, picnicking or bank fishing but at the same time found that the public by prescription had a right to use the gravel bar for launching of boats. The trial court also determined that Little River was not a navigable stream. The landowners appeal contending that the evidence is insufficient to sustain a prescriptive right in the public to launch boats and park vehicles on the gravel bar. The appellees, George Scott, et al, cross-appeal contending:

“I. The court erred in its findings of fact and conclusions of law that Little River is a non-navigable stream in a commercial sense.
II. The court erred in its findings of fact and conclusions of law that plaintiffs and the public have no right to use the land lying between the high water marks on the banks of Little River.
III. The court erred in its findings of fact and conclusions of law which deny plaintiffs and the public in general the use and benefit of all property lying between the high and low water marks on Little River as a part of Millwood Reservoir.”

The parties stipulated that the public for more than 30 years had used Stallion Road open continuously, adversely and hostilely and under claim of right “for public purposes and for crossing Little River and gaining ingress and egress to Little River at Stallion Ford.” The trial court determined that Stallion Road was 30 feet wide and from this finding there is no appeal.

With reference to navigability of Little River appellees stipulated:

. Little River in its present state is not suitable for commercial navigation. We’re not saying that it hasn’t been so used in the past. We’re not saying it could not be used in the future. We’re saying at the present time that it’s not commercially navigable, in that we have no proof whatsoever to offer that ft is being used commercially.”

The proof on the part of appellees was furnished through James Sharp, age 81, Mr. George Scott, age 60, Kenneth McElhannon, district supervisor with the Arkansas Game and Fish Commission, George Dalton Bush, age 74, and W. C. Hess, age 75, a minister affiliated with the Organized Church of Jesus Christ. The appellants’ testimony was principally given by Herman Jones, who between the time of trial and this appeal became the victim of a homicide at Stallion Ford.

All of the witnesses recognized that the area in question, including the surrounding high bank area was not fenced until recently. All witnesses testified that they had observed and had used the gravel bar area for launching of boats, fishing, camping and church meetings. People had also used the area as well as the high bank area for parking of vehicles by both fishermen and swimmers. In testifying however, the appellees’ witnesses did not specifically refer to the times involved nor the intensity of the use made of the gravel bar. Significantly, however, is the fact that some of the witnesses who testified to the use of the gravel bar also testified to the use of the surrounding area in general for squirrel hunting. In fact Mr. Sharp testified:

“Q. Have you ever had occasion to ask Mr. Jones or his father or any members of his family for permission to go down there?
A. No. Tom Jones, his father was a friend of mine and he invited us down there any time we wanted to go. They use to have a dance hall down there on the first bank.
Q. Were they the ones that sponsored these activities?
A. Part of it, yes, sir.
Q. So the public came down there at their invitation?
A. Yes. Jones would loan you a boat and tackle if you wanted it.”

With reference to the intensity of the use for boating Herman Jones testified there wasn’t but very little boat launching taking place until recent years (the three years) following the building of Millwood Dam.

Appellees to sustain the finding of the trial court that the public had a prescriptive right to use the gravel bar for boat launching and parking of vehicles and to reverse the trial courts’ finding that the public had no prescriptive right to use the gravel bar for camping, picnicking and religious purposes rely upon Fullenwider v. Kitchens, 223 Ark. 442, 266 S.W. 2d 281 (1954). In that case we permitted prescriptive rights to be obtained over open and unenclosed lands because the facts and circumstances of the prior usage were such that the landowner would be presumed to know that the usage was adverse. In so holding, this court at page 445, stated:

“The reason for the rule that a passageway over un-inclosed land is deemed to be permissive is sound and also easily understandable, ... .It assumes that the owner of such land in many instances will not be in position to readily detect or prevent others from crossing over his land, and, even if he did, he might not enter any objection because of a desire to accommodate others and because such usage resulted in no immediate damage to him. Also in such instances the landowner would probably have no reason to think the users of the passageway were attempting to acquire any adverse rights. . . .”

When the testimony of Mr. Sharp and that of Herman Jones, are considered along with all of the other evidence it would appear that the use of the gravel bar outside of that part comprising the 30 feet road right-of-way was permissive on the part of the landowner because of either a desire to accommodate his neighbors and acquaintances or else the use was not of such frequency that the landowner would be presumed to know that the usage was adverse. Of course the increased usage following the building of Millwood Dam had not continued for the required seven years to acquire an easement by prescription. The bruden of proof was upon those claiming the adverse use and we find that such use has not been shown by a preponderance of the evidence.

We find no merit in the cross-appeal. On the issue of navigability, the proof beyond appellees’ stipulation shows that on one occasion Little River had been used to float logs but there was no attempt to show that the river was commercially usable with any degree of tolerable regularity. Furthermore, the proof shows a number of places where the river is fordable by jeep or farm tractor. Appellees’ witness testified that the river at Stallion Ford was very shallow — something like six or eight inches when the river was at low water. See also, Gill v. Hedgecock, 207 Ark. 1079, 184 S.W. 2d 262 (1944), which also recognized that Little River was not a navigable stream.

Neither do we find anything in the flowage easement obtained by the Government in connection with the construction of Millwood Dam that would give the public any right to the use of the lands. That instrument only granted the Government an occasional right to flood and submerge the lands below 290.0 ft. M.S.L.

It follows that the decree of the trial court granting rights to the public to use the gravel bar outside of the 30 feet road right-of-way must be reversed.

Reversed on direct appeal. Affirmed on cross appeal.