text:
    Stuckey v. Douglas
    5-3860
    401 S. W. 2d 218
    Opinion delivered April 11, 1966

      Dale L. Bumpers and Bruce Shaw, for appellant.

      David 0. Partain and Lonnie Batchelor, for appellee.
   George Rose Smith, Justice.

The parties to this suit, H. B. Stuckey and Roy Douglas, were formerly partners in the operation of a feed mill at Branch, in Franklin county. After the dissolution of the partnership Stuckey brought this suit to compel Douglas to account for any profits that may have been made during a period of three years while Douglas managed the business. This appeal is from a decree dismissing the complaint for want of equity, apparently upon the ground that Stuckey failed to prove his case by a preponderance of the evidence.

The proof is so meager and so incomplete that it is not possible to say whether the partnership made a profit during the three years that Douglas was in exclusive control of the business. Despite this failure of proof Stuckey insists that he is entitled to judgment against Douglas to redress several specific instances in which partnership funds were misappropriated by Douglas.

It is not necessary for us, in explaining our reasons for affirming the decree, to review the partnership history in great detail. In 1958 Stuckey and Douglas bought out a third partner, Cecil Neuhart, who had been the salaried manager of the mill. For the next three years— the period now in issue—Douglas managed the business. In April of 1961 Stuckey took control of the mill by changing the locks on the doors and thereby excluding Douglas from access to the property. Stuckey ran the enterprise as his own for more than a year. He testified that he did not know how he fared. If there were any profits he kept them; if there were any losses he paid them.

In September of 1962 Stuckey attempted to sell the mill for $15,000, but he failed to find a purchaser. Douglas saved the situation by finding a purchaser who bought the mill for about $23,000. In the sale the partnership property was deeded to a bank in satisfaction of a partnership note for some $23,000. Stuckey admits that before he forcibly took control of the property his entire capital investment had been repaid, presumably during the management either of Neuhart or of Douglas.

Stuckey’s complaint in the chancery court con-eluded with a prayer that Douglas be required to deposit all his partnership records with the court for examination and that if upon that examination Douglas should be found to be indebted to Stuckey for partnership profits, then Stuckey be given judgment for the amount due.

Douglas deposited with the clerk of the court what records he had, consisting primarily of bank statements. As we have indicated, it is admittedly impossible to say whether the business made or lost money during Douglas’s management. Stuckey did not put Douglas on the witness stand or ask that a master be appointed to take testimony and state an account. Instead, Stuckey testified in his own behalf and offered witnesses who described specific incidents that happened while Douglas was managing the mill. Among other things Douglas is charged with having bought livestock with partnership funds, with having failed to pay the mill for feed consumed by the animals, and with having failed to account to the partnership for the proceeds of sale when the livestock were disposed of. There is also some indication, upon rather scanty proof, that Douglas used partnership money to pay a personal note and did not fully reimburse the partnership for that withdrawal.

After putting this decidedly vague testimony in the record Stuckey rested his case. Douglas also rested without offering any proof whatever. The matter was then submitted to the chancellor, who dismissed the complaint for want of equity.

We cannot say the court was in error. Throughout the proceeding in the trial court the object of the suit was to obtain a complete accounting of the partnership affairs during Douglas’s stewardship. Stuckey assumed the burden of establishing a basis for an accounting, but he did not produce sufficient proof to enable the chancellor to state the account. In such a situation the complaining partner is not entitled to require the defendant to account for certain items only, without respect to the rest of the partnership business. Williams v. Henkle, 201 Ill. App. 362 (1916); Thompson v. Lowe, 111 Ind. 272, 12 N. E. 476 (1887); Walmsley v. Mendelsohn, 31 La. 152 (1879); Davis v. Davis, 60 Miss. 615 (1882); Baird v. Baird’s Heirs, 1 Dev. & Bat. (N. C.) 524, 31 Am. Dec. 399 (1837).

We need not now determine when a partner can maintain a suit to recover specific sums of money misappropriated by his copartner. That was not the object of this complaint. No amendment to the complaint was offered. Neither can it -be said, upon the record in this case, that the complaint should be treated as amended to conform to the proof. All the testimony about misconduct in Douglas’s handling of the business was competent under the allegations of the complaint, in that it was relevant to a complete partnership accounting. Hence an objection to the testimony would have been unavailing. In similar circumstances it has been held— we think correctly—that the reception of the evidence does not bring about an amendment of the pleadings to conform thereto. Powell v. Powell, 181 Ore. 675, 184 P. 2d 373 (1947). This is so because the other party’s failure to object does not amount to his acquiescence in the determination of a new and unpleaded issue.

At the trial it was not Douglas’s responsibility to rebut the scattered assertions that he had misapplied partnership assets, for he had not been put on notice by the pleadings that any such issues were involved. There was no request, or even any suggestion, that Douglas as a fiduciaiy should assume the burden of accounting for his management of the mill. As Ave view the case Stuckey is in the position of asking for the first time on appeal for relief with respect to matters that were not put in issue in the court below. Needless to say, at this stage that request comes too late.

Affirmed.


source: Caselaw Access Project

author: Paul Ward, Justice. George Rose Smath, Justice,

license: Public Domain

text:
    National Surety Corp. v. Edison
    5-3835
    401 S. W. 2d 754
    Opinion delivered April 11, 1966
    [Rehearing denied May 16, 1966.]

      Charles C. Wine, Raffaelli, Keeney & Pesek, Texarkana, Texas, for appellant.

      John W. Gooclson, for appellee.
   Paul Ward, Justice.

In separate actions, which are here consolidated, Weldon Edison and Woodrow Smith ((appellees) recovered separate judgments against the National Surety Corporation (appellant), and this appeal follows. A brief statement of the background facts will help to understand the issues raised.

On February 13,1963, at an election held in the City of Texarkana, Arkansas and in Miller County (pursuant to Act No. 48 of 1961) a bond issue in the amount of $11,000,000 was approved. The purpose of the bond issue was to erect and equip a building to he used for manufacturing purposes, to he located on land belonging to the Texarkana Industrial Foundation, Inc.—a non-profit corporation. (Later the land was transferred to the City.) On June 12, 1963, H. K. Ferg'uson Company was engaged, as the prime contractor, to construct and equip said building. One week later the property was leased to the Cooper Tire and Rubber Company. On February 4, 1964 appellant executed a performance bond with General Millwright and Rigging Corporation which was a sub-contractor.

On February 18, 1964, appellee Edison leased certain equipment to the sub-contractor mentioned above, to be used in constructing the building. Edison was also employed by said contractor as job superintendent. A few days later appellee Smith likewise leased certain equipment to said contractor. The said sub-contractor halted operations on April 29, 1964 (before the job was finished) and on May 9, 1964, it definitely decided to do no more work.

Appellee Edison sued the prime contractor, the subcontractor, and appellant, asking $11,291.35 for rentals and wages and for penalty and attorney’s fee. The trial court, sitting as a jury, gave him $4,968.45 for rentals, $169.45 for repairs, and $450 for wages. Appellee, Smith, was given judgment for $1200—being the amount sued for.

It is contended by appellant that the trial court erred in rendering judgment in favor of either appellee, because this was a private contract (as opposed to a public contract) and therefore appellant “is not liable for rentals under § 3 of Act 209 of 1957.” For reasons hereafter discussed we are unable to agree with appellant.

The attorney for appellant, in the oral argument, commendably simplified the issues to be decided on appeal. It is admitted that if the contract here involved is a “public contract” within the meaning of those words as used in “section 1” of Act 209 of the Acts of 1957, then this case should he affirmed. It appears to us there is no doubt that appellant was correct in making the above concession, because of the language used in “section 3” of said act. The portion of said section which is pertinent here reads:

“ ‘All surety bonds required by the State of Arkansas or any subdivisions thereof, any county, municipality, school district, or other local taxing unit. . . for the repair, alteration, construction or improvement of any public works, including but not by way of limitation, buildings . . . shall be liable on all claims for labor and material entering into the construction . . . shall include but not be limited to fuel oil, gasoline, camp equipment . . . rentals on machinery. ...”

Any doubt that a “bond” is required in such case is removed by the language used in “section 1” of said Act 209.

Likewise, we feel that there is no doubt that the contract here involved is a public contract as opposed to a private contract. In arriving at that conclusion we take into consideration the legal background and the facts revealed by the record. It is now possible for cities and counties to entice industries to their localities by voting bonds to erect buildings to be leased to them on attractive terms. See: Arkansas Amendment No. 49 to the Arkansas Constitution. The legislature also wisely provided that proper construction of said buildings be secured by a bond. Act 261 of 1953 provides for such a bond, but it did not specifically include “rentals.” Act 351 of 1953 likewise required a “bond” but “rentals” were, again, not specifically mentioned. It is perhaps significant that the emergency clause shows the legislature’s desire to eliminate all “ambiguity” regarding such bonds. Then Act 209 (above quoted) not only required the “bond” to cover “rentals,” but it also mentioned that “ambiguity” could delay construction of public buildings.

In the light of what we have said above, we think the record leaves no doubt that the “bond” in question here covered the construction of a “public” building. We can’t imagine anything more public than an election to authorize the issuance of bonds in the amount of $10,000,000. It is true that the title to the land upon which the building was to be erected was in the name of “The Texarkana Industrial Foundation, Inc.,” but it is admitted this was a non-profit corporation, and it is also admitted the title was transferred to the City of Texarkana five days after the rental agreement was made with the Cooper Tire and Rubber Co. It is also conceded all reports and rentals were to be made to the City. ■

It is our conclusion therefore that the record reflects not only substantial evidence but convincing evidence to support the findings of the trial judge, sitting as a jury, in favor of appellees.

We have carefully examined other questions raised in appellant’s brief, but find in them no reversible error.

Appellee asks for an attorney’s fee to be taxed as costs under Ark. Stat. Ann. § 66-3238 ,(Repl. 1966), and we approve the same in the amount of $500.

Affirmed.

George Rose Smith, J., concurs.

George Rose Smath, Justice,

concurring. The surety bond given by the appellant recites that it is written in accordance with Act 351 of 1953 as amended. That act, however, expressly requires a bond only to secure indebtedness for “labor and materials.” Ark. Stat. Ann. § 51-635 (Supp. 1965). Hence the appellant argues that it is not liable for claims for the rental of heavy equipment, as such claims do not represent either labor or materials.

I think the answer to this contention is that the city should have required a bond from the general contractor, under the mandatory provisions of Section 1 of Act 351, supra. § 51-632. In that event the pertinent provision of Ark. Stat. Ann. § 14-604 (Supp. 1965), which requires that the bond secure claims for rental of equipment, would have been read into the bond.

The city, however, failed in its duty to exact a bond from the general contractor. Instead the parties, apparently as a device to circumvent the statute, created a nonprofit corporation to go through the motions of letting the contract before transferring the property to the city.

When thereafter the appellant made the bond in question to indemnify the obligee, a subcontractor, against claims arising out of a sub-subcontract awarded to the appellant’s principal, the appellant must have known that the bond was made in connection with construction falling within the scope of Section 1 of Act 351, cited in the bond. In the circumstances the provisions of § 14-604 ought to be read into the bond, just as would have been the case if the city had complied with the law. The dominant intention' of the legislature was to require a bond when public construction is involved, for such projects are not subject to liens.


author: Paul Ward, Justice.

text:
    Catlett v. Beeson
    5-3924
    401 S. W. 2d 202
    Opinion delivered April 11, 1966
    [Rehearing denied April 25, 1966.]

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. General, for appellant.

      Spitzberg, Bonner, Mitchell & Hays and Charles D. Matthews, for appellee.
   Paul Ward, Justice.

This litigation pertains to the matter of filling- the vacancy (for the remainder of this year) in the Fourth Congressional District caused by the resignation of the incumbent, Oren Harris. The principal questions to be resolved are; can the major political parties call a special primary election to select a nominee and, if so, what counties constitute the Fourth District in which the election shall be held.

On January 17, 1966 Travis N. Beeson, a qualified elector residing in Camden, filed a Complaint for a declaratory judgment and other relief against numerous defendants, including the Chairman of the Democratic State Committee as a representative of the officers and members of the Democratic Party of Arkansas, the Chairman of the Republican State Committee as a representative of the officers and members of the Republican Party of Arkansas, the Governor and Lieutenant Governor of Arkansas, and; all other necessary State Officers and Election Commission members. Separate answers were filed by the Attorney General, representing the State Board of Election Commissioners, and by several other named defendants. Also, an Intervention was filed by George Davis, Jr., a citizen and resident of Washington County.

We deem it unnecessary to set out all the issues raised in the several pleadings since the decisive ones will be mentioned and discussed hereafter.

The issues were presented to the trial court on the pleadings, exhibits and stipulated facts. At the close of the hearing the court made certain findings which we summarize as follows: (a) The court has jurisdiction of the parties and the subject matter; (b) Organized political parties have the right to conduct party primary elections to select nominees to fill the vacancy in this situation; (c) Any such election must be held in the twenty counties comprising the Fourth Congressional District as set out in Act 3 of the First Extraordinary Session of the General Assembly of 1965, and; (d) The intervention filed by George Davis, Jr. should be dismissed.

The final Order of the trial court was in accord with the findings set out above, and this appeal follows.

One. The trial court was correct in holding that the valid Fourth Congressional District is the one created by Act 3 of the First Extraordinary Session of the General Assembly, approved June 1, 1965. This Act names the twenty counties which comprise the Fourth Congressional District. In 1961 the General Assembly passed Act 5 (approved January 23, 1961) which placed twenty-six counties in the District. In the same year, at the Second Extraordinary Session, Act 5 was passed which repealed the afore-mentioned Act 5 and put twenty-eight counties in the District. On February 3, 1965, in the case of Parks v. Faubus, 238 F. Supp. 62, the Federal District Court invalidated the last mentioned redistricting plan. Thereafter, the General Assembly passed the above mentioned Act which placed twenty counties in said District. This act contained an emergency clause which placed it “in full force and effect from and after its passage, and approval.” It was, as previously mentioned, approved June 1, 1965.

It is contended that said Act 3 passed in 1965 is unconstitutional because it results in disfranchising the electors living in the eight counties deleted from the old Fourth Congressional District. We find no merit in this contention because said electors are now living in other congressional districts and are free to exercise the right of voting therein when the occasion arises.

Two. The argument is made that Act 3 of 1965 previously mentioned has no application here because it applies to the next regular General Election to be held in November of this year. This argument is, of course, directly in conflict with the plain intent of the Legislature as it is expressed in the emergency clause set out heretofore.

Three. The principal issue presented by this appeal seems to revolve around who, if anyone, has authority to call a special primary election to select a nominee from each party. The trial court held that each of the organized political parties had the right to call such an election, and we agree with the holding. The court also said “it is a difficult task to bring order out of the confusion and complications now existing in the hodgepodge election laws.” Again we agree.

Certainly we can find no constitutional or statutory provision which prohibits such special primaries. It is argued that such special primaries are impliedly prohibited by Ark. Stat. Ann. § 3-404 ,(;Repl. 1956), but we are not convinced this is true. This section of the statute is § 65 of Act No. 34 of the Acts of 1875, and it reads:

“When any vacancy shall happen in the office of member of Congress from this State by death, resignation, removal or otherwise, it shall be the duty of the Governor, by proclamation, to order an election to be held, on a certain day to be named in such proclamation, to supply such vacancy, and such election shall be conducted in the same manner, and returns thereof made, as herein prescribed for general elections.”

The above copied act was not repealed but it was supplemented by Act 205 of 1957, Ark. Stat. Ann. § 3-201 et seq. (Supp. 1965). Section 3-201 (d) reads, in material parts, as follows:

“Nominees of any political party to fill a vacancy shall be declared by: (1) certificate of Chairman and Secretary of any convention of delegates; (2) primary election called, held and conducted as required by law; or (3) by petition of electors as provided' in Section 3-261, Arkansas Statutes, 1947.”

It will be noted that the election which the governor calls under said § 3-404 is an election to “supply” or fill the vacancy, but it is not an election to select a nominee. We think it clearly appears therefore that the legislature intended to provide' for a special primary to select a nominee to run in the special general election called by the governor.

Four. George Davis, Jr., a resident of Washington County, (a county not in any of the proposed “districts”), filed an intervention, contending the “election” should he held in the state at large. Otherwise, says the intervenor, the electors in the eight counties deleted from the old district would be disfranchised. We explained in paragraph “One” above why said electors are not being disfranchised. Therefore the trial court was correct in dismissing the intervention.

Affirmed.


author: Frank Holt, Justice.

text:
    Gurantee Trust Life Ins. Co. v. Koenig
    5-3830
    401 S. W. 2d 216
    Opinion delivered April 11, 1966

      Phillip Carroll, for appellant.

      Hubert E. Graves, for appellee.
   Frank Holt, Justice.

The appellee, the insured, suffered a heart attack and the appellant, the insurer, paid him $100.00 per month for approximately two years. The appellant refused further payments upon the basis that appellee could no longer show his sickness required continuous house confinement within the meaning of the insurance policy. The jury resolved the issue in favor of the appellee and from a judgment accordingly is this appeal.

The pertinent portion of the insurance policy provides :

“If the Insured, because of such sickness, shall be continuously confined within doors and regularly attended therein by a legally qualified physician, other than himself, the Company will pay * * * Monthly Benefits thereafter so long as the Insured lives and suffers continuous confinement;. provided such sickness causes continuous total disability and total loss of time.”

On appeal the only issue in this case is whether the instructions are deficient since reference to the continuous confinement requirement was excluded. The appellant made specific objections to this exclusion and also offered instructions which included this provision as a factual issue for the jury’s determination. The court overruled the specific objections and rejected the proffered instructions. The jury was instructed to return a verdict for the appellee if it found he was unable to perform all the substantial and material acts of his. occupation or business.

It is undisputed that the appellee was totally disabled from performing all the substantial and material acts of bis occupation as a farmer and duck bunting-guide; that lie had suffered a total loss of time from his occupation and that he is being regularly attended by his physician who authorizes and directs certain limited outdoor activities.

In view of these undisputed facts the appellee contends that as a matter of law he was in compliance with the house confinement provision and, therefore, the instructions are correct without specific reference to this provision. The appellant asserts, however, that the omission of this feature from the instructions denied appellant the right to have the jury consider a vital factual issue. "We agree with the appellant’s contention.

The continuous confinement clause in an insurance contract is valid and enforceable. Michigan Life Insurance Co. v. Hayes, 231 Ark. 614, 332 S. W. 2d 593. Ordinarily, it is a question of fact for the jury to determine whether the insured is confined to the house within the meaning of a confinement provision notwithstanding certain outdoor activities are permitted pursuant to the advice of a physician. Mutual Benefit Health & Accident Assn. v. Murphy, 209 Ark. 945, 193 S. W. 2d 305; Colorado Life Co. v. Steele, 101 F. 2d 448 (8th Cir. 1939); Occidental Life Ins. Co. of California v. Sammons, 224 Ark. 31, 271 S. W. 2d 922. Only recently we have said that a confinement clause does not have the identical meaning- as total disability. Michigan Life Ins. Co. v. Hayes, supra. In the case at bar the appellant had the right to have the jury consider the continuous confinement provision in the policy along with total disability, loss of time, and the other evidence. An instruction embodying these elements was approved by us in Mutual Benefit Health and Accident Assn. v. Rowell, 236 Ark. 771, 368 S. W. 2d 272.

Appellee insists that appellant waived any valid objection to the instructions inasmuch as appellant has not abstracted all the instructions given by the court. This would have been tenable prior to 1954 when we adopted Rule No. 9. By this rule [9 (d) and (e)] if the appellee considers appellant’s abstract of the instructions insufficient and that the alleged error in the giving or refusing of an instruction is cured by unabstracted instructions, then “it is the duty of the appellee to point out such other instructions to the court.” Forest Park Canning Co. v. Coler, 226 Ark. 64, 287 S. W. 2d 899. In the case at bar it appears no such curative instruction was given.

Nor can we agree with appellee’s contention that appellant waived the policy provision requiring “continuous confinement within doors.” It is asserted that appellant paid the appellee for over two years upon the assumption of continuous confinement and without the proof it now requires. This policy provides for the payment of sickness benefits on a monthly basis. The appellant had the right to require proof of sickness from time to time as a condition of the continuing payment of these monthly benefits.

Reversed and remanded.


text:
    Potts v. McCastlain, Comm’r
    5-3838
    401 S. W. 2d 220
    Opinion delivered April 11, 1966
    Frank Holt, Justice.

      Rose, Meek, House, Rarron, Nash & Williamson, for appellant.

      Lyle Williams, Tom Tanner and Hugh Rrown, for appellee.
   operators of a fleet of taxicabs, brought this declaratory judgment proceeding seeking to invalidate a part of Act 42 of the First Extraordinary Session of 1965 [Ark. Stat. Ann. § 75-201 et seq (Supp. 1965)]. The chancellor held the questioned part of the Act valid and constitutional. From that decree is this appeal.

For reversal the appellants contend that the section of the Act which raises the annual license fees for five-passenger automobiles for hire from $25.00 to $75.00 is arbitrary, discriminatory and violative of Article 2 of onr State Constitution and the equal protection and due process clauses of the Fourteenth Amendment of our Federal Constitution. Appellants argue that the asserted discrimination and invalidity is apparent upon a comparison of the license fees which are: (1) $75.00 for taxicabs (five-passenger cars for hire); (2) $19.00 for other five-passenger cars (pleasure vehicles) of the same weight category as taxicabs; (3) $15.00 for city buses of much greater weight; andt(4) special consideration by a reduction of the license fees for vehicles hauling natural resources. We cannot agree with this contention.

The Act specifically provides that the .imposition of this tax is for the privilege of using the public roads and highways of the state and that the fees collected shall be distributed according to the Arkansas Highway Department Distribution Law. We have consistently approved a legislative classification for the purpose of the taxation of a privilege. City of Ft. Smith v. Scruggs, 70 Ark. 549, 69 S. W. 679; State v. Byles, 93 Ark. 612, 126 S. W. 94; Wiseman v. Madison Cadillac Co., 191 Ark. 1021, 88 S. W. 2d 1007. In Davies v. Hot Springs, 141 Ark. 521, 217 S. W. 769, we said:

“* * * The only restriction which the law imposes on the exercise of the power [privilege tax] is that there shall not be a discrimination between persons in like situations and pursuing the same class of occupation.”

And we find in City of Ft. Smith v. Scruggs, supra: “But the rule of equality only requires that the tax shall be collected impartially of all persons in similar circumstances.” In the case at bar the statute applies equally and without discrimination to all persons of the classification made and thereby taxed. Also, we think a valid and reasonable distinction exists in the prescribed classifications.

In U-Drive-Em Corporation v. Wiseman, 189 Ark. 1163, 76 S. W. 2d 960, the contention was made that the tax in question ‘ ‘ discriminates grossly between taxicab operators and in favor of buses using streets of cities and towns, and buses using State highways, and the ordinary automobiles used for business and commercial purposes.” It was there argued, also, that the Act was void as being in contravention of our State and Federal Constitutions. We rejected these arguments saying:

“* * * The tax so imposed is substantially higher than the tax imposed upon, the same automobile or same type of motor vehicle when not so used to transport persons for hire.
It is strongly urged by appellants that the classification made by the State is unfair and unequal. For the purposes of argument, that proposition might be conceded, and, even if that were true, it would not be a real reason for declaring § 31, or any part of it invalid. It is a principle very generally recognized by all of the courts that almost any system of taxation results' in many inequalities and perhaps unfairness to particular classes, and very frequently seriously affecting individuals composing a particular class. This arises more often, not out of the law itself, but out of the peculiar conditions under which classes, or individuals, may find themselves in their manner of doing business or location, rather than out of the classification.”

A classification which is based, upon whether a vehicle carries passengers or freight is said to be valid. Sproles v. Binford, 286 U. S. 374 (1932). Also, the state has a distinct public interest in the transportation of its citizens whether by passenger ear for hire or by motor-bus, the latter being a medium of the regularly scheduled mass transportation of people. In U-Drive-Em Corporation v. Wiseman, supra, we held valid a statute- which was oppressive to taxicabs and not motorbuses as being .within the privilege granting power of the state.

Primarily, it is within the discretion of our legislature to determine the extent and scope of the exercise of its taxing power. The presumption and intendment favor the validity of its action. State v. Byles, supra; Standard Oil Co. of Louisiana v. Brodie, 153 Ark. 114, 239 S. W. 753; Fitzgerald v. Gates, 182 Ark. 655, 32 S. W. 2d 634.

We agree with the chancellor that the questioned portion of the Act is valid and constitutional.

Affirmed.


author: Oseo 'Cobb, Justice.

text:
    Johnson v. Johnson
    5-3845
    401 S. W. 2d 213
    Opinion delivered April 11, 1966

      Fred New'th and Martin, Dodds & Kidd, By: Loivber Heridriclis, Jr., for appellant.

      Phillip Carroll, for appellee.
   Oseo 'Cobb, Justice.

Appellant and appellee were married on October 21, 1950. Irreconcilable differences developed and on August 7, 1963, the parties executed a separation agreement providing that appellee should be given the home in which they were living along with the substantial mortgage against same; custody of their two young children; and a monthly allowance of $250 plus a portion of appellant’s special commissions as a salesman for Crane Supply Company. Appellant’s total earnings during the time of this controversy have approximated $8,000 per year.

Appellant failed to pay appellee certain portions of his special commissions and appellee brought action for specific performance of the conditions of the separation agreement, seeking an accounting and judgment for accumulated arrearage. Appellant filed a general denial of the allegations of the complaint and further alleged that the separation agreement was void because it had been obtained by coercion, duress and compulsion, and particularly by threats of an alienation of affection suit against a named female person.

After multiple contested proceedings, the chancellor, on May 12, 1965, entered a decree, the pertinent parts thereof providing:

(a) Appellee is entitled to a decree of separate maintenance.
(b) The separation agreement of August 7, 1963, is not void.
(c) The terms of said separation agreement were not incorporated into the decree.
(d) Appellee has an adequate remedy at law for payments alleged to be due under the separatioxi agreement and no equity jurisdiction is exercised with reference thereto.
,(e) Appellant directed to pay $250 per month plus a stated portion of his special commissions to appellee for maintenance and support of herself and the two children.
(f) Appellee’s attorney was allowed a $100 fee for services rendered.

The decree entered was acceptable to neither party and the case is now before us on appeal and cross-appeal.

Appellant, conceding his legal obligation to support appellee and the two young children, urges two points on his appeal:

1. That the court erred in finding that the separation agreement of August 7, 1963, was not void.
2. That the allowance to appellee for herself and children is excessive.
Appellee by cross-appeal urges a single point:
That the trial court should have entered judgment for arrearage due her under the provisions of the separation agreement.

Appellant’s Point 1—the validity of the separation agreement.

The record reflects that appellant was represented by an attorney of his own choice when the separation agreement of August 7, 1963, was negotiated and executed. Payments were made to appellee thereafter. Appellee testified that the contention that the agreement was obtained by coercion was not asserted in any way until after the filing of her action for specific performance of said agreement. Appellant and appellee both testified at length. Their testimony is in irreconcilable conflict. Appellee testified that appellant was flagrantly involved with another man’s wife, a Mrs. Murley. See Murley v. Murley, 240 Ark. 70, 398 S. W. 2d 68 (1966). "We noted in onr opinion in the Murley case, supra, that there was evidence of misconduct on the part of both parties.

Appellant testified that appellee had harassed him and his employer, threatening his job, and further to the effect that he was not guilty of any adulterous conduct. Appellant also testified as to alleged threats of appellee which he claimed endangered his life.

The chancellor, with many years of experience in dealing with such situations and controversies, held that the separation agreement had not been obtained by coercion and was valid. The evidence in this case does not preponderate against this conclusion. We therefore find no merit as to appellant’s Point 1. Fuller v. Fuller, 240 Ark. 475 (Mar. 14, 1966); Orrel v. E. C. Barton & Co., 240 Ark. 194, 398 S. W. 2d 685 (1966); Brandenburg v. Brandenburg, 234 Ark. 1117, 356 S. W. 2d 625 (1962).

Appellant’s Point 2—the alleged excessiveness of the award to appellee.

Appellant urges that one of the reasons that the chancellor erred in- making the alleged excessive award to appellee was because of the adoption by the court of the provisions of paragraph 3 of the separation agreement as the yardstick for allowance to appellee, while setting forth that said agreement was not being incorporated into the decree. The real question is whether the allowance is reasonable, based upon all of the evidence. We quote from the decree of the court:

“The contract which was entered into by the parties on August 7, 1963, which was introduced into evidence (being the same as the contract attached as Exhibit ‘A’ to plaintiff’s complaint) is not void on account of compulsion, duress, or other coercive acts of Edith. Johnson, bnt the 'Court declines to incorporate the agreement into this decree and declines to grant specific performance of the agreement. Nevertheless, the Court holds that the terms of paragraph 3 of said agreement, relating to the amount of money to he paid by the defendant to the plaintiff, are fair and reasonable and it is ordered that defendant continue to pay the plaintiff for the support of herself and her two children the sum of $250 per month. From any additional quarterly commission checks which defendant receives subsequent to this date, he shall deduct the first $100 and pay to the plaintiff 50% of the remainder. ’ ’

We can understand why the trial court, having found that the separation agreement was valid, was inclined to accept the figures agreed upon by the parties as appropriate for the maintenance and support of appellee and the two children. The record before us indicates that the chancellor has attempted to tailor the relief given appellee in accordance with her needs and the capabilities of appellant to provide support. Indeed, between the date of the decree here on appeal and the filing of the appeal here, the trial court heard a motion of appellant for reduction in support payments and did, on July 20, 1965, in order to give appellant relief from pressing obligations, enter an order temporarily reducing said payments to $200 per month and temporarily denying appellee any portion of two quarters’ special commission checks, and providing that the terms as set forth in the decree of May 12,1965, should re-apply from and after October 1, 1965.

Appellant has not cited a single case authority to support his contention that the allowance to appellee is excessive. Some $70 of the money received by appellee each month goes for the payments upon the house. The balance of $180 per month, plus the participation in the special commissions earned by appellant, provides approximately $2,800 per year for the actual support of appellee and the two children. This can hardly be said to be excessive from the standpoint of need under the present cost of living. Furthermore, the question as to a proper award is one that is addressed to the sound discretion of the chancellor. Ark. Stat. Ann. § 34-1210 (Repl. 1962); Brabham v. Brabham, 240 Ark. 153, 398 S. W. 2d 514 (1966); Grumbles v. Grumbles, 238 Ark. 355, 381 S. W. 2d 750 (1964). In Wood v. Wood, 140 Ark. 361, 215 S. W. 681 (1919), we affirmed an allowance by the chancellor to the wife and one child of approximately 45% of the total earnings of the husband. When the house payments of $840 a year are deducted from the $8,000 gross earnings of appellant, we have a total in available funds for appellant and appellee of $7,160. Appellee’s net income for support and maintenance in this case can be approximated by dividing $2,800 by $7,160, from which we arrive at a figure of approximately 40%. Furthermore, the chancellor has authority, upon change of conditions and/or hardship, to act upon proper application of either party so as to give any further equitable relief that may be required by the changed conditions. McCutcheon v. McCutcheon, 226 Ark. 276, 289 S. W. 2d 521 (1956). We therefore find no merit in Point 2 of appellant’s contentions.

The Gross-Appeal

The contentions of appellee that she is entitled to judgment for the arrearages in payments due under the valid separation agreement have been examined. The chancellor declined to exercise jurisdiction in order to render judgment against appellant for same, pointing out that an adequate remedy at law existed therefor. The chancellor was no doubt aware that appellant had no funds with which to pay such a judgment, and no doubt further aware that because of the bitterness between the parties such a judgment, if pursued by garnishment and execution, could in fact embarrass appellant in his employment, to the actual injury of appellee and the children. The chancellor had ample authority to adjudicate all questions in controversy, including damages for breach of the separation agreement, under what is known as the Clean-up Doctrine. See Ark. Stat. Ann. § 27-205 (Repl. 1962); Murdock v. Sure Oil Co., 171 Ark. 61, 283 S. W. 4 (1926); Lebovitz v. Porter, 252 S. W. 2d 144 (Tenn. 1952); McClintock, Equity § 50 (1936). We have concluded, under all of the circumstances and equities of the case, that the action of the chancellor in refusing to exercise jurisdiction as to the claims for arrearage was not improper and could well have been in the immediate best interest of appellee. We note that the right to assert the claim at law was preserved to appellee.

Appellee has requested a supplemental fee allowance for services of her attorney in this court, and such fee in the sum of $100 is awarded. Ark. Stat. Ann. § 34-1210 (Repl. 1962). See Finkbeiner v. Finkbeiner, 226 Ark. 165, 288 S. W. 2d 586 (1956); Stearns v. Stearns, 211 Ark. 568, 201 S. W. 2d 753 (1947).

Having found no error by the trial court, the decree is affirmed on appeal and affirmed on cross-appeal.


author: Carleton Harris, Chief Justice. Ed. F. MoFaddin, Justice,

text:
    Ark. Best Freight System v. Mo. Pacific Truck Lines
    5-3839
    401 S. W. 2d 571
    Opinion delivered April 18, 1966

      Louis Tarlotoski, for appellant.

      William J. Smith and Ben Allen, for appellee.
   Carleton Harris, Chief Justice.

Missouri Pacific Truck Lines, Inc., appellee herein, filed an application with the Arkansas Commerce Commission, wherein it soug’ht authority (an unrestricted Certificate of Public Convenience and Necessity) to conduct motor carrier operations as a common carrier of general commodities, originating in Little Rock, and destined to El Dorado, and also Little Rock to McGehee, and return. Arkansas-Best Freight System, Inc., hereafter called “ABF” and Red Line Transfer and Storage Company, Inc., hereafter referred to as “Red Line,” filed a written protest, asserting that no public need existed for the' applicant’s proposed service, and alleging that protestants and other certificated common carriers were rendering all necessary service. ABF has a certificate of public convenience and necessity, authorizing it to conduct operations from Little Rock to El Dorado and return, and Red Line is authorized by its certificate to conduct motor carrier operations from Little Rock to McGehee and return. On hearing, the commission granted the application, and protestants appealed to the Pulaski County Circuit Court. That court affirmed the commission, and from the judgment so entered, appellants bring this appeal.

This is the third attempt by Missouri Pacific to acquire the authority sought as far as Little Rock to El Dorado is concerned. See Arkansas Motor Freight Line, Inc. v. Missouri Pacific Freight Transport Company, 230 Ark. 587, 326 S. W. 2d 820, and Ark. Best Freight System, Inc. v. Missouri Pacific Transport Company, 233 Ark. 685, 348 S. W. 2d 694. We proceed first to a discussion of this phase of the litigation.

Mr. M. J. Hrebec, Vice President of Transportation and Maintenance for Missouri Pacific Truck Lines, and assistant to the General Manager of Merchandise Operations of Missouri Pacific Railroad, testified that, if the certificate were granted, a truck would depart from Little Rock at 12:30 A.M., arrive at El Dorado at 6:00 A.M., and deliveries would be made from 7:00 A.M. until 9:00 A.M. He stated that the company had pickup trucks in Little Rock, where they presently render service from 8:00 A.M. to 5:00 P.M., but upon the granting of the application, these trucks would commence pickup service around 7:00 A.M., and continue until 6:00 P.M.

Five witnesses from El Dorado, and four witnesses from Little Rock, testified in support of the application. In general, these customers desired later pickups (in Little Rock), and earlier deliveries (in El Dorado).

William Kirby, Manager of Worsham Wholesale in El Dorado, dealer in cigars, candy and cigarettes, testified that early morning delivery service would keep him from having to carry a large stock; that none of the present carriers made deliveries before 9:00 A.M., and generally the deliveries ranged from 10:00 A.M. to up until the afternoon. He stated that his company received good service from ABF, but that it was “afternoon service; ’ ’ deliveries were usually made from just before noon to 1:00 P.M.

Grady Jean of El Dorado, engaged in the lumber and supply business, testified that proposed service by Missouri Pacific would be a convenience to meet a need of his business; that such service would prevent his having to carry a large inventory. He said that sometimes ABF made deliveries around 9:00 or 10:00 o’clock, but generally, between 9:00 A.M. and noon. He stated that his company had no other complaints, but that later pickups in Little Rock and earlier deliveries in El Dorado would benefit his business. On cross-examination, the witness admitted that he rents from Missouri Pacific Railway Company, and he stated that if the certificate were granted, it would probably benefit him more than anyone else in El Dorado since his place of business is adjacent to the Missouri Pacific warehouse.

L. H. Kerr, engaged in the hardware and furniture business, testified that late afternoon pickups in Little Rock, and early morning delivery in El Dorado, were primarily his needs for additional service, and that fairly early morning deliveries would create a better customer relationship with persons whose refrigerators or freezers were in need of repairs, since the repair parts would be obtained earlier. He specifically made complaint about a shipment made two years before, which, evidently was misplaced, and he stated that it was three days before he received it.

David Hargett, of Gibson Products Company, and Don Cash, engaged in the general foods merchandise distributing business, testified that early morning deliveries would benefit their companies. Cash was not personally familiar with the type of service rendered by ABF.

Kenneth Hudspeth, engaged in the building material business in Little Rock, testified that a later pickup service would be beneficial; that if a request was made to ABF for a pickup by 3:00 o’clock, the company would get service, but if the request was not made until 4:00 P.M., pickups would not always be made.

Joe Copeland, employed by Orgill Brothers of Little Rock, testified that at times the company had trouble getting pickups from ABF after 3:00 P.M. He stated that he had complained to the dispatcher at ABF four or five months earlier about late pickup service, hut that the service did not improve.

Ben Smothernon, of Little Rock Furniture Manufacturing Company, was particularly interested in late pickups. Mr. Smothernon, however, stated that his company mainly used company trucks to make deliveries to El Dorado customers, and he only used common carriers when a customer ordered a bedroom suite, and wanted it before the company truck could arrive there. The witness said, that with the exception of the late pickups, the service of ABF was satisfactory.

Roy F. Baker, employed by Gunn Distributing Company of Little Rock, engaged in selling heating, air conditioning, etc., testified that his company stayed open until 5:00 P.M., and that he had, at times, been forced to wait on ABF for late pickups. Aside from this matter, he stated that the service was satisfactory. Mr. Baker had testified on behalf of Missouri Pacific in its last case. We thus have nine public witnesses, testifying in behalf of the application, five from El Dorado and four from Little Bock.

Herman L. Reed, City Dispatcher for ABF, testified that the company’s pickup trucks were equipped with radios, and that the company had never refused to accept any calls for pickups, or make such pickups, after 3:00 P.M. The witness stated that pickups were made as long as offices remained open, and that pickups had been made as late as 7:00 P.M. He testified that the Little Bock terminal was open 24 hours a day, and that trucks were constantly being loaded, and sent out. The witness stated that he had not received any complaints of late pickups.

William H. Curry, General Traffic Manager of ABF, stated that it had been a long number of months since he had received any complaint from those receiving shipments in El Dorado.

Wilton E. White, Chairman of the Greater Little Rock Terminal Managers Association, testified that he knew of his own knowledge that ABF and Bed Line made pickups in Little Bock after 3:00 P.M. and that, in fact, both companies had picked up and delivered freight as late as 6:00 or 7:00 o ’clock.

The record reflects that, for the months of January, February and March of 1963, there were 164 different shippers over ABF from Little Rock to El Dorado, and 218 consignees. It at once becomes apparent that, considering the total number of shippers and consignees, the complaints, and those supporting additional service, are few indeed. In fact, we have a great deal of difficulty in seeing any difference in the record before us at the present time, and the record that was presented in Arkansas Best Freight System, Inc. v. Missouri Pacific Transport Co., supra. There, as here, practically all of the proof relating to necessity and convenience referred simply to late afternoon pickups and early morning deliveries. Much of the language of that opinion is entirely apropos in the present instance. There, we said:

“* * * The Commission’s order granting the application makes no requirement that the proposed improvements be put into effect by the appellee. As far as we can see there is really no assurance whatever that the appellee’s service will actually be superior to that already available to the public.”

Here, too, there is no requirement that Missouri Pacific furnish the service that it contends it will be able to give. In Arkansas Best Freight System, Inc. v. Missouri Pacific Transport Company, supra, we held that Missouri Pacific had not met the burden of proving that its application should be granted, and the present record contains no additional evidence that would now justify the granting of the order. As in that case, we are “unable to say that the appellee has met the burden of proving that its application should be granted * *

Turning now to Red Line, Mr. Hrebec testified that if the application were granted, the Little Rock to MeGehee schedule would call for a truck to leave Little Rock at 2:15 A.M., and go direct to McGehee, arriving there at 6:00 A.M.; pickup and delivery service would start probably at 7:00 A.M., and last until approximately 6:00 P.M. each day. Only four public witnesses from McGehee testified in behalf of the application. Mr. Carl Lucky, who operates the Chevrolet company in that city testified :

“There are times when we would be out of an automotive part or a heavy truck part and it would assist us in having a little bit better service.”

However, he stated that he found the Red Line service to be reasonably satisfactory to meet his needs.

Lester Warick, engaged in the wholesale grocery, tire and tire repair business in McGehee, testified that the proposed service would probably be a convenience to his business, but that Red Line had rendered very good service. The witness stated that, though Red Line was doing a very good job, he believed increased competition would make for better service.

Virgil Peacock, engaged in the furniture and appliance business, obviously felt a sense of loyalty to Missouri Pacific. He stated that McGehee was a “Missouri Pacific stronghold,” and had meant much to the economy of the city. ‘ ‘ The Missouri Pacific payroll has been cut considerably but we still know when the Missouri Pacific payday comes along down there and the people down there feel a sense of obligation.” He said that he always specified in every order that merchandise be shipped by Missouri Pacific. The witness testified that his main complaint against appellant company was occasioned by damage claims on property that had been shipped.

Robert Adcock, engaged in the retail building material and wholesale grocery business, testified that he did not receive shipments before 8:30 or 9:00 o’clock, and also that early morning service would permit him to better meet competition.

None of these people had made any complaint at all to the local manager of Red Line, Roger Horan. Mr. Horan testified that he opened the terminal at 5:00 A.M. each day, and that he operated six trucks in pickup and delivery service in McGehee.

Harry King, traffic manager and treasurer of Red Line, testified that the company’s Little Rock terminal opened at 7:00 A.M., and closed when the last pickup was made, usually between 6:30 and 7:00 P.M. He stated that McGehee shipments were delivered not later than 9:30 or 10:00 A.M. for six days per week. Mr. King testified that available tonnage in Little Rook was small, and the addition of another truck line would simply mean that the lines could not operate at a profit from Little Rock to McGehee and return. ■ This testimony is borne out by the tables that were offered in evidence.

Average revenue per day for a 3-month period (January, February and March, 1963), for shipments from Little Rock to McGehee, was $41.97, and average revenue per day for the same 3-month period for shipments from McGehee to Little Rock was $5.63. Average weight per day for the 3-month period (January, February and March, 1963), for shipments from Little Rock to McGehee, was 3,339 pounds. Average weight per day for the same period for shipments from Mc-Gehee to Little Rock was 439 pounds.

Other testimony by company officials was offered that complaints about Red Line service had been negligible. Red Line uses The Delivery Service, Inc., in Little Rock, for pickups, and E. R. Adcock, general manager, testified that his place of business opens at 7:00 A.M., and that he had made pickups as late as 6:30 or 7:00 P.M. The witness testified that he contacted King with reference to whether he could refuse pickups after 3:00 P.M., and “He set me straight pretty quick on that and said if I was going to do that he would have to get another carrier.” The same four men who testified about the inadequate pickup service of ABF from Little Rock to El Dorado also testified to practically the same set of facts relative to pickups for shipments from Little Rock to McGehee, and one additional witness also offered evidence. Actually, the only testimony derogatory to Red Line service was given by the Little Rock witnesses, and Mr. Adcock testified that he had never refused to pick up a shipment, whatever the hour. He also stated that he had not received any complaints from the five witnesses who testified.

We are of the view that the testimony does not establish that public convenience and necessity require additional service. The rule is set out in Missouri Pacific Railroad Company, Thompson, Trustee v. Williams, 201 Ark. 895, 148 S. W. 2d 644. There, quoting from A.L.R., we said:

The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.”

Of course, there is existing service (from two lines) over the route applied for. The evidence of these four people from McG-ehee, and five from Little Rock, does not establish that the service is inadequate or that additional service would benefit the general public, and the existing carrier has not been heretofore called upon to furnish such additional service. Missouri Pacific Railroad Company, Thompson, Trustee v. Williams, supra, also contains other language which is here pertinent:

“ * * * The prime object and real purpose of commission control is to secure adequate sustained service for the public at the least possible cost, and to protect azid conserve investments already made for this purpose. Experience has demonstrated beyond any question that competition among natural monopolies is wasteful economically and results finally in insufficient and unsatisfactory service and extravagant rates.”

It would certainly appear that the meager tonnage and small revenues derived through shipments from Little Bock to McGeliee and vice-versa, are not sufficient to support another truck line.

Of course, a few individuáis or companies might receive some benefit from the granting of a certificate to Missouri Pacific, but the benefit that might accrue in these isolated cases is not what is meant by the term, “public convenience and necessity.”

On the whole case, we are of the opinion that appellee has failed to meet the burden of establishing that its application should be granted.

Accordingly, the judgment is reversed and the cause remanded to the Pulaski Circuit Court with instructions to direct the Arkansas Commerce Commission to set aside its order herein rendered, and deny appellee’s petition.

McPaddin, J., dissents in part.

Amsler, J., disqualified and not participating.

Ed. F. MoFaddin, Justice,

dissenting in part. I agree with that part of the Majority Opinion which refuses appellee, Missouri Pacific Truck Lines, Inc., the permit it sought between Little Bock and El Dorado. I can see no substantial difference between Missouri Pacific’s evidence here and that in the previous ease of Arkansas Best Freight v. Missouri Pacific Transportation Co., 233 Ark. 685, 348 S. W. 2d 694. While res judicata may not apply to the Commission’s findings, nevertheless our Opinion in the last cited case should have settled the issue.

I dissent, however, from that part of the Majority Opinion which reverses the finding of the Commission in regard to Missouri Pacific’s desired permit between Little Bock and McGehee. I will not prolong this dissent by detailing the evidence. It is sufficient to say that I think the evidence sustained the Commission’s decision in awarding Missouri Pacific the desired permit to Mc-Gehee.

      Missouri Pacific presently holds authority to transport general commodities between Little Rock and El Dorado and Little Rock and McGehee, and also to go beyond those cities, but its certificate does not permit direct shipments originating in Little Rock to those two cities.

      In Arkansas-Best Freight System, Inc. v. Missouri Pacific Transport Company, supra, eight public witnesses from El Dorado testified on behalf of appellee.

      The hearing before the commission was held in May, 1963.

      There was no assurance by appellee that Saturday deliveries would be made.

      Burks Motor Freight Lines, Inc., also operates the Little Rock to McGehee and return route.


author: Ed. P. McPaddin, Justice.

text:
    Rice v. State
    5194
    401 S. W. 2d 562
    Opinion delivered April 18, 1966
    [Behearing denied May 9, 1966.]

      J. B. Milham, for appellant.

      Bruce Bennett, Attorney General; Clyde Calliotte, Asst. Atty. Gen., for appellee.
   Ed. P. McPaddin, Justice.

Appellant was convicted in. the Municipal Court for violation of the “Arkansas Hot Check Law” (Ark. Stat. Ann. § 67-719 et seq. [Repl. 1966),] and appealed to the Circuit Court. There, he waived a jury and was tried by the Court, convicted, and sentenced to four.months in the County jail; and from that judgment there is this appeal. The appellant’s original, and amended motions for new trial present the points hereinafter discussed.

I.

Sufficiency Of The Evidence. There was introduced the original check given by appellant to Joe Benson for $20.00, drawn on the Benton State Bank, and dated October 10, 1965. The check bore the Benton State Bank endorsement, showing that the check was returned unpaid because of insufficient funds. When the original check was introduced with the said endorsement, the State had made a prima facie case (Ark. Stat. Ann. § 67-722).

To overcome tlie prima facie case, the appellant testified in his own behalf. His entire testimony in this case is as follows:

“Q. Yon are the defendant in this case and the same James Eobinson and James Eice that testified here before?
“A. Yes, sir.
“Q. Now, on this third check they have here, tell the Court what happened?
“A. Well, it’s the same testimony as before, sir. I went back to the lady that was up here and offered to pay the checks off the day I picked up my payroll check at Little Eock and she denied payment of it because the checks were not there.
“Q. She couldn’t turn your checks over to you?
“A. That’s right.
“Q. That was the first you knew of the checks not being paid?
“A. Yes, sir. It wasn’t until the following Satuiy day after I had already paid some other bills with my check and they called back and said the check was no good.
“Q. Then you was arrested pretty soon after that?
“A. I was arrested the following Monday.
“Q. And, you have been in jail since that time?
“A. Yes, sir. I have.
£ ME. MILHAM: I believe that is all.
“ME. McCEAY: No questions.
“WITNESS EICE: If I may, I would like to say something to you in my own defense.
“THE COURT: You better.
“WITNESS RICE: On these checks, the reason I put the money in the bank was because before I have had a bad record of checks that have bounced. This time I have put the money in the bank and I wrote the checks in good faith that payments would be paid off. I think what happened in the other case, I think the amount of money I put in was put in my step-dad’s deposit because the money was put in the bank in my name.
“THE COURT: Is your step-father’s name James Robinson, too?
“WITNESS RICE: James 0. Robinson, yes, sir.
‘ ‘ WITNESS EXCUSED. ’ ’

It is clear from this testimony that the appellant admitted that this was the third check on which he had been in Court and that the check had not been paid. His defense was that he had deposited money in the bank and it had not been credited to his account. He was not corroborated by anyone; and the burden was on him to overcome the prima facie case. So the evidence is sufficient to support the finding and judgment rendered.

II.

Testimony Of The Bank Official. There were three cases against the appellant on appeal in the Circuit Court, each involving a bad check; and all three cases were tried in the Circuit Court the same day. The present case was the third one tried. When the first case was tried, the bank official testified that when the checks, including the one here, were presented to the bank, appellant’s balance was only 66 cents. The bank official was cross examined by the appellant’s present counsel; and when the bank official completed his testimony, the following occurred:

“ME. McCEAY: I would like, if you would agree to it Mr. Ford’s testimony would be the same in the other two appeals cases. Otherwise he would have to stay here. I covered the period of time that the other checks were drawn in the testimony in this case.
“THE COUET: I will consider the testimony in the other two cases.”

On the trial of the present case the appellant’s counsel sought to object to the testimony of the bank official. Counsel cannot blow both hot and cold. He had impliedly agreed to such procedure, and cannot trifle with the Court by revoking his implied consent. Furthermore, the State had made a prima facie case, as previously shown, and the appellant’s own testimony was an admission that he issued the check, and that it was not paid.

III.

In one point the appellant raises this novel contention :

“It was error for the Court sitting as a jury to try defendant on three cases in which he was charged with overdrafts, or hot checks, as the Judge would be disqualified to sit as a jury because this would deprive defendant of his constitutional rights because in violation of constitutional rights under Amendments 5, 6 and 14, Constitution of the United States.”

The answer to this is perfectly obvious: the appellant did not have to waive a jury trial in Circuit Court. He voluntarily waived it and he permitted the present trial to take place after the two previous trials before the same Judge. There is absolutely no merit to this point.

IY.

After the trial and conviction the appellant filed an amended motion for new trial in which he alleged that lie had found his two deposit slips in the Benton State Bank, one on September 23rd for $40.00, and one on September 30th for $10.00; and he offered these in evidence to show that he had made deposits in the bank. The Court denied the motion for new trial. Of course, the appellant showed no diligence in failing to produce these deposit slips at the original trial. Furthermore, the fact that the appellant made bank deposits on September 23rd and September 30th did not show that he had any money in the bank on October 10th, when he drew this check, or on October 11th, when it was presented to the bank for payment. When a party goes to trial he should have his defense ready and not attempt to retry his case on motion for new trial.

Finding no error, the judgment is affirmed.

Amslbr, J., not participating.


author: Ed. F. McFaddin, Justice.

text:
    Lane v. Rachel
    5-3853
    401 S. W. 2nd 576
    Opinion delivered April 18, 1966

      Shelby R. Blackmon, J. Fred Jones, for appellant.

      Rail, Purcell, Boswell & Tucker, for appellee.
   Ed. F. McFaddin, Justice.

This is the second appearance of this case. The appeal in the first case was decided by this Court on May 3, 1965, and reported in 239 Art. 400, 389 S. W. 2d 621; and the opinion in that case gave the basic facts. In the first case the Trial Court had failed to give Lane any relief; and we found that Lane was entitled to rescission, saying:

“It is well settled that when a purchaser is fraudulently induced to purchase property by a vendor’s representations, the purchaser has an election of remedies, one of which is to rescind the contract and recover the amount paid by returning or offering to return the property to the seller.”

Our directions in the first case were: ‘ The decree is reversed and the cause remanded for the entry of a decree not inconsistent with this opinion.” On remand, the Lower Court, without any additional pleadings, proceeded to hear evidence, as to the amount that .Lane had paid and the reasonable monthly rental of .the house; and then rendered judgment for Lane for $1,623.50. From that decree on the mandate Lane prosecutes the present appeal and insists that he did not receive judgment for a sufficient amount. We find merit in Lane’s contention.

The directions contained in the first opinion of this Court were: “The decree is reversed and the cause remanded for the entry of a decree not inconsistent with this opinion.” Those words have a definite meaning in chancery cases. See Deason v. Rock, 149 Ark. 401, 232 S. W. 583. We had stated in the first opinion that Lane was entitled to rescission and to “recover the amount paid by returning or offering to return the property to the seller.” Lane had filed a suit on January 7, 1964, and prayed for rescission. Here is the language of the prayer of the complaint: “Wherefore, plaintiffs pray that their contract to purchase said property be rescinded and that they have judgment for the amount they have paid on same in the amount of $4,517.19.”

• • That is the amount for which the Trial Court should have rendered judgment on the mandate, and that amount should bear interest at 6% from January 7,1964, the date of the filing of the first complaint in this case. That prayer of the complaint was never amended. In the trial in the first case the appellant showed that he had paid more than $4,517.19, but he never amended the complaint, and so he is entitled to judgment for the amount prayed in the original complaint. If there had been filed some supplemental bill (as was done in Chicago Mill & Lbr. Co. v. Osceola Land Co., 94 Ark. 183, 126 S. W. 380) there might have been some additional hearing. But in the absence of such supplemental bill, and under the directions of the mandate of this Court, the Trial Court’s obligation was to render the judgment for $4,517.19.

The decree of the Chancery Court is reversed at the cost of the appellees, and the cause is remanded with directions to the Trial Court to enter a decree for Lane for $4,517.19, with interest at 6% from January 7, 1964, together with all costs.

Amsuee, J., not participating.


author: George Rose Smith, Justice.

text:
    Weist v. State
    5160
    401 S. W. 2d 565
    Opinion delivered April 18, 1966

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

      Bruce Bennett, Attorney General, Fletcher Jachson, Asst. Atty. General, for appellee.
   George Rose Smith, Justice.

The appellant was convicted of negligent homicide upon proof that his drunken driving caused a traffic collision in which Don Taylor Gazaway was killed. The jury fixed the penalty at imprisonment for one year and a fine of $500.00.

For reversal the appellant urges a single point, that the trial court erred in permitting the prosecuting attorney, over the objection of defense counsel, to ask the witness Gage if he knew that the accused drank. A com: píete answer to this contention is simply that the question was never answered; so there could have been no prejudice. Reynolds v. State, 220 Ark. 188, 246 S. W. 2d 724 (1952).

Affirmed.

Amsler, J., not participating.


text:
    Ark. State Highway Comm. v. Vaught
    5-3826
    401 S. W. 2d 553
    Opinion delivered April 18, 1966

      William Robert Thrasher, for appellant.

      Cooper Thweatt, James M. Thweatt and 8am A. Weems, for appellee.
   Paul Ward, Justice.

This is an eminent domain proceeding involving the taking of 1.7 acres for highway-purposes. A jury trial resulted in a judgment for $10,000 in favor of appellees from which comes this appeal.

It is not here contended the judgment is excessive (if it is based on competent evidence), nor is there any objection to the instructions given by the trial court. Por a reversal appellant relies on two separate points, both relating to the admissibility of certain evidence. Before discussing these points a brief statement of the factual background should be helpful.

Mr. and Mrs. Sam Vaught (appellees herein) are the owners of a farm consisting of 662.77 acres on which rice, soy beans and other crops are grown. The farm is physically divided into two parts. One part, consisting of 607.77 acres, will be referred to as part “A” and the other part, consisting of 55 acres, will be referred to as part “B”. Part “A” is one quarter mile north of part “B”, and lying between the two parts is forty acres (in a square block) which belongs to James Holmes.

On 'January'!29, 1963 the Arkansas State Highway Commission (appellant herein) filed suit to condemn 1.7 acres of land' (a portion of part “B”) for highway purposes. Appellees answered, contending the 1.7 acres was a part of the.entire acreage because parts “A” and “B” were operated as a single unit, and that they had been damaged in the> amount of $100,000.

One. Appellees introduced testimony to show the taking caused damage to the farm as a whole. This testimony was objected to on the ground that there was no substantial evidence to show the two parts were operated as a unit. Appellant admits that two parcels of land not physically joined may be used as a unit in such a way that damage to one parcel would result in damage to the other. However, NICHOLS on “Eminent Domain,” Section 14.31 [1] is quoted to the effect that no such unity exists “unless they [two parcels] are so inseparably connected in the use to which they are devoted that the injury or destruction of one must necessarily and permanently injure the other.”

After carefully examining the testimony as set out by appellant we have reached the conclusion that the trial court was correct in admitting the questioned testimony in this case. Don Vaught (son of appellees) testified: Since receiving a degree in agriculture I have farmed the land for four years; there is a reservoir one-half mile square on part “A” which cost $27,000, and which allows the water to run to all parts of the farm; there is a power unit which keeps water in the reservoir; we pasture forty head of cattle on part “B” where our feed is stored and where our corrals are located. We drive cattle from one tract to the other several times each year. Formerly this took three men two hours but now we will have to haul them in a trailer about two and one-half miles. The road will interfere with watering part “B”—there will have to be a dam on the north side of the road. This testimony was admitted over appellant’s objection. Mr. Smith testified: I appraised the farm—I estimate the damage at $15,000; part “B” is best suited for raising rice and soybeans; and sometimes hay; water will not now be available to part “B”. No objection was made to the above testimony.

Appellee, 8am Vaught-. We have been able to water-part “B” and raised soy beans, hay, etc.—it is also suited to rice; formerly we ran water down the road-ditch to water part “B” but now it will be a “dry farm;” we will also have to move cattle from one part to another in a truck; the entire acreage has been operated as a rice, cotton, soybeans, oats and cattle farm. This testimony was allowed over appellant’s objection.

We find no merit in appellant’s contention it was error to introduce this testimony before it was first shown parts “A” and “B” were used as a unity. See: Western Coal & Mining Co. v. Nichols, 168 Ark. 346, 269 S. W. 991.

It is our conclusion also that the testimony relative to the question of “unity” was sufficient to constitute a question of fact for the jury—even under the applicable rule as previously stated by appellant.

Two. Mr. Holmes, who owned the 40-acre tract lying between parts “A” and “B”, was asked the following question:

Q. “Does Mr. Vaught have permission to water his land by another ditch across your farm?”

At this point appellant objected on the ground that such oral permission would be good only for one day, because he might change his mind. The court stated appellee could make the proof. We find, for at least two reasons, that no reversible error is shown. First, it is not shown that the question was answered, and, also, if the answer had been affirmative, the jury could have considered the testimony for what it was worth.

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

Affirmed.

Amsler, J., not participating.


text:
    Taylor v. Certain-Teed Products Corp.
    5-3862
    402 S. W. 2d 114
    Opinion delivered April 18, 1966
    [Rehearing denied May 24, 1966.]

      Terral, Rawlings, Matthews & Purtle, for appellant.

      William M. Stochs, for appellee.
   Paul Ward, Justice.

This case involves the question of usury.

On September 12, 1963 Mr. and Mrs. Monroe Taylor (appellants herein) and Certain-Teed Products Corporation (appellee herein) signed a written “Purchase and Sales Agreement” wherein appellee agreed to sell and' appellants agreed to buy certain real estate. The sales price agreed on was $6,360. The essence of the agreement was that appellants could pay the above amount in cash or they could pay it out by monthly payments to be agreed on later when the deal was closed. The language in the agreement was: “If this transaction is a time sale, Buyer agrees to execute two notes' and two mortgages in form acceptable to Seller . . . . ” Appellants chose the time payment plan.

On April 21, 1964 appellants .(pursuant-to the above mentioned agreement) did execute two notes and two mortgages which present the issue on this appeal, and which we now proceed to discuss.

Note No. One was for $8,604, payable in monthly installments (beginning February 1, 1964) of $59.75 for 141 months.

Note No. Two was for $2,970 due December 1, 1975 bearing no interest before due date.

Later, when appellants failed to make the monthly payments appellee filed suit on Note No. One, and also asked to foreclose the mortgage securing same. Appellants answered, contending the note required payment of more than 10% interest and was therefore invalid because of usury. After a hearing the trial court found the note was not usurious and rendered a decree accordingly—thus this appeal.

It is our conclusion that the note is not usurious, and that the decree must be affirmed.

As previously stated, the cash purchase price was $6,360, but certain deductions must be made from that amount. First, it appears from the record that appellants had made three monthly payments before the note was executed, amounting to $179.25. Next, it becomes necessary to reduce Note No. Two (for $2,970) to its value as of April 21, 1964. According to calculations based on an interest table that value is $981.05. Deducting those two mentioned amounts leaves $5,199.70, being the debt owed by appellants on April 21, 1964. According to the same authority above mentioned, the payment of $59.75 each month for 141 months would not amount to the payment of 10% interest on $5,199.70,

Appellants raise other objections relative to certain rulings of the trial court which we consider immaterial in view of what we have heretofore said.

McFaddin, J., concurs.

Amsler, J., not participating.


text:
    Long v. State
    5155
    401 S. W. 2d 578
    Opinion delivered April 18, 1966

      Felver A. Rowell, Jr., for appellant.

      Bruce Bennett, Attorney General, Russell J. Wools, Asst. Atty. General, for appellee.
   Frank Holt, Justice.

Upon a change of venue the appellant was tried and convicted upon the charge of second degree murder. The jury assessed his punishment at 12 years in the State Penitentiary and from the judgment upon that verdict comes this appeal.

For reversal appellant first contends the evidence is insufficient to sustain the verdict. The appellant was arrested and placed in jail upon a charge of public drunkeness. He was placed in a jail cell with two others, Hervey Henley and Wesley Greenlaw, who were also in jail for public drunkeness. A short time after appellant was placed in this cell the officers investigated a disturbance there. They found Henley unconscious on the jail floor lying in a pool of blood. The appellant was standing nearby ‘4 staggery drunk. ’ ’ His clothing and boots were covered with blood and he complained about his right hand which later became swollen. The.other inmate, Greenlaw, who was perched in an upper bunk, heard appellant say: 44Get up old man,” and then a struggle ensued. He also heard a woman’s voice saying: 44Stop beating him or you will kill him.” Henley was taken to a hospital where he died about 24 to 36 hours later from a fractured skull. There was evidence of multiple lacerations and bruises about his head, face, arms, back and chest. Without further detailing the evidence we are of the view that it is amply sufficient to sustain the verdict. Stockton v. State, 239 Ark. 228, 388 S. W. 2d 382.

Appellant further contends that' it was error to admit as evidence a pair of metal knucks and a loaded pistol found on the person of appellant at the time of Ms arrest and while being transported to the jail. The appellant is correct in this contention. There is no evidence that the weapons were in any manner relevant and connected with the crime charged in the information. We have recently held that a pistol found in the possession of an accused following a killing was improperly admitted into evidence. We said: “* * * there is no contention on the part of the State that the pistol was used in the killing. In these circumstances we do not think the pistol was admissible in evidence.” Rush v. State, 238 Ark. 149, 379 S. W. 2d 29. See, also, Everett v. State, 231 Ark. 880, 333 S. W. 2d 233; 22A C.J.S. Criminal Law § 611. In the case at bar the weapons were removed from appellant’s person before the commission of the alleged offense. There was no contention that the knucks and the loaded pistol were used in the commission of the crime or possessed for that purpose.

Nor can it be said that these weapons were admissible in evidence to show appellant’s propensity for being an argumentative and combatant individual. An accused has the right to have his guilt or innocence resolved upon evidence relevant to the specific charge made in the information. Henson v. State, 239 Ark. 727, 393 S. W. 2d 856. There we quoted with approval: “* * * a criminal defendant is entitled to have his guilt or innocence determined on the specific offense charged and not risk the possibility of conviction for a series of prior specific acts which collectively suggested that his career had been reprehensible.” See, also, Williams v. State, 183 Ark. 870, 39 S. W. 2d 295.

To the same effect is the case of People v. Zackowitz, 254 N. Y. 192 (1930). There the court held erroneous the admission of evidence that the accused had other weapons in his apartment, at the time of a street murder, for the purpose of showing professional criminality and murderous propensity. Justice Cardozo, speaking for the court, said:

“If a murderous propensity may be proved against a defendant as one of the tokens of his gnilt, a rule of criminal evidence, long believed to he of fundamental importance for the protection of the innocent, must be first declared away. Fundamental hitherto has been the rule that character is never an issué in a criminal prosecution unless the defendant chooses to make it one (Wigmore, Evidence, Vol. 1, § § 55, 192). * * * There may he cogency in the argument that a quarrelsome defendant is more likely to start a quarrel than one of milder type, a man of dangerous mode of life more likely than a shy recluse. The law is not blind to this, but equally it is not blind to the peril to the innocent if character is accepted as probative of crime.”

Appellant also contends for reversal that the trial court erred in permitting the prosecuting attorney to comment in his closing argument upon the failure of appellant’s wife to testify in his behalf. Ark. Stat. Ann. § 43-2019 (Repl. 1964) permits one spouse to testify for the other in a criminal ease. The statute prohibits the state from calling a spouse to testify against the other. Since this point was not preserved in the motion for a new trial we cannot consider the matter on appeal. Decker v. State, 234 Ark. 518, 353 S. W. 2d 168; Blaylack v. State, 236 Ark. 924, 370 S. W. 2d 615. However, in view of a retrial of this case we think it proper to observe that upon this point being properly presented to us it could possibly contain merit. We deem it unnecessary to discuss any other contention presented by appellant.'

Reversed and remanded.

Amsler, J., not participating.


author: Osro Cobb, Justice. Ed. F. McFaddin, Justice,

text:
    Ahne v. The Reinhart and Donovan Co.
    5-3798
    401 S. W. 2d 565
    Opinion delivered April 18, 1966

      J. H. Evans, for appellant.

      Smith, Learning and Swan, Oklahoma City, Okla. ; Warner, Warner, Bag on & Smith, for appellee.

      William J. Smith, Ben Allen, amici curiae.
   Osro Cobb, Justice.

On July 26, 1905, George Heim and Lizzie Heim, his wife, executed and delivered their deed to Arkansas Anthracite Coal Company conveying “all of the coal, oil and mineral” lying in and under the SEI4 NE^', Sec. 15, Township 8 North, Range 24 West, in Logan 'County.

Appellants are successors to the fee title of George Heim and Lizzie Heim, subject to the mineral divestiture represented in the deed of July 26, 1905.

Appellee, The Reinhart and Donovan Company, is the successor in title to the minerals conveyed by the Heim deed.

Appellee W. R. Wilson, Jr. is a lessee of said mineral interests from appellee The Reinhart and Donovan Company.

The Reinhart and Donovan Company brought this action in chancery court seeking a judgment declaring their sole ownership of the coal, oil, gas and other minerals in and under subject lands. (Emphasis ours). It will be noted that gas was not specifically named as a mineral being conveyed in the Heim deed. Appellants resisted the action by filing an answer alleging that in July of 1905 gas was not commonly recognized as a mineral in the locality where subject land was situated and that gas could not have been and was not conveyed directly or by inference in the Heim deed of 1905. This defense asserted by appellants was obviously bottomed upon our holding in Stegall v. Bugh, 228 Ark. 632, 310 S. W. 2d 251 (1958), and supporting case authorites cited in that opinion.

The issues joined presented a fact question as to whether gas was a commonly recognized mineral in Logan County in 1905 when the Heim deed was executed, and the fact question was submitted to the chancellor upon a comprehensive array of historical exhibits and was determined adversely to appellants. The case is here on appeal, the dispositive question being whether the chancellor erred in his finding as a fact that gas was a commonly recognized mineral in Logan County when the Heim deed was executed on July 26, 1905.

We now refer to some of the more pertinent exhibits which were before the chancellor.

1. Exhibit A-ll: Outlines of Arkansas Mineral Sources, by George C. Branner, State Geologist, published by the Bureau of Mines, Manufactures and Agriculture and State Geology Survey (1927).
This publication recognized two natural gas-producing areas in Arkansas—one being the western end of the Arkansas valley, including Scott, Sebastian, Crawford and Johnson Counties, and the other being southwestern Arkansas, including Union, Ouachita, and Columbia Counties. A field was discovered in Sebastian County on November 5, 1904, and was producing up to the time of this report. The Mansfield field was discovered in Scott and Sebastian Counties in 1902 and was used in Huntington and Mansfield domestically. This report contains a graph which shows some but little natural gas production in Arkansas in 1907.
2. Exhibit B: “ The Early History of Oil and Gas Leasing in the Arkansas Valley,” by Park Sullivan. (1965)
This article states that most professional land men in the Arkansas valley of northern Arkansas agree that the word “mineral” included “gas” after 1900. The author states that 1900 was the earliest year in which there was evidence of the growing realization of petroleum as an economic mineral. It was at this time that people began to trade in oil and gas as opposed to hard rock minerals. Also it was about this time that there was a cohesion in the business world that overrode the arbitrary political boundaries of counties, and individuals engaged in mineral trading were thinking along regional lines. There was some activity pertaining to oil and gas leases in Logan County dated May 2, 1896. In 1901, Choctaw Oil Company (a number of incorporators of this company were from Paris, Arkansas) put together a sizable block of acreage as to oil and gas royalties in Logan County. Choctaw Oil Company drilled wells pursuant to these leases. (Emphasis ours.) There is also evidence of other leases which were undated bnt acknowledged in the summer of 1901 covering lands scattered throughout southern Logan County. The author of this article concludes that after 1900, business and professional communities in the various counties along the Arkansas River in Arkansas recognized the economic importance of oil and “gas,” that these minerals were subject to exploitation, and the word “mineral” included oil and “gas.”
3. Exhibit H: Minerals in Arkansas, published by the Bureau of Mines, Manufactures and Agriculture, compiled by Jim Ferguson, Commissioner (1922).
This publication reveals that there were two natural gas fields in Arkansas in 1922. The Fort Smith field at the time had been producing for twenty years, and the El Dorado field for about one year.
4. ’ Exhibit A-7: A letter: tó 'Mr. B. BAChisholm from John C. Branner, dated July 27, 1895.'
This letter suggests that one of the two-, best places in the.state of Arkansas for.prospecting for oil and gas in .1895 was an area in Logan, County.
5. Exhibit A-8: Arkansas Gazette, 1888.
On November 25, 1888, the Gazette carried an article enlightening the public on the discovery of gas in Fort Smith. On June 14,1888, the Gazette carried an article discussing the prospecting of gas fields in the area around Prairie Grove, Washington County, Arkansas.
6. Exhibit A: 'Early History of Petroleum Exploration and Production in the Arkansas Yalley, by John P. Schields, Consultant Geologist.
The author of this article points out that with the publication of a Geological Survey of Arkansas in 1892 which showed prominent anticlines in Logan, Johnson, Sebastian and Scott Counties, the population of these counties became aware of the potential presence of petroleum (oil and gas) in the area. The landowners were informed that their property was enhanced by the potential presence of petroleum by the geologists who entered the area pursuant to the 1892 Geological Survey and Map. During this period, newspaper articles were also being published concerning the oil and gas possessions in the area. This article also substantiates Mr. Sullivan’s observations which were enumerated above.

The historical accuracy of “The Early History of Oil and Gas Leasing in the Arkansas Valley,” by Park Sullivan, as quoted above, is not challenged, and this report established to our satisfaction that both oil and gas were commonly recognized minerals in Logan County as early as 1901.

In 1941 this court, in a landmark case, Missouri Pac. R.R. Co., Thompson, Trustee, v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557 (1941), held that deeds executed in 1892 and 1893 in Miller County reserving ‘ ‘ all coal and mineral deposits” did not constitute a valid reservation of oil and gas minerals, for the reason that such substances were not commonly recognized as minerals in Miller County at the time of the execution of said deeds. The court said:

“If the. reservations had been made at.a time when oil and gas production, or explorations, were general, and legal or commercial usage had assumed them to be within the term ‘minerals,’ certainly appellant should prevail.”

We quote further from the Strohaeker case:

“In most of the decisions holding that oil and gas were included in reservations of minerals, there were circumstances denoting such intent; and, where purposes of the parties can be ascertained from a writing or from general customs, and effect can be given such intentions without impinging a settled rule of law, it should be done. Beasley v. Shinn, 201 Ark. 31, 144 S. W. 2d 710, 131 A.L.R. 1234.”
“We agree -with Chief Justice Gibson of Pennsylvania that ‘The best construction is that which is made by viewing the subject of the contract as the mass of mankind would view it; for it may be safely assumed that such was the aspect in which the parties themselves viewed it.’ Schuylkill Nav. Co. v. Moore, 2 Whart. (Pa.) 477.”

In Missouri Pac. R.R. Co., Thompson, Trustee, v. Furqueron, 210 Ark. 460, 196 S. W. 2d 588 (1946), we noted:

“While the record in the present case reflects some additional testimony, in effect, it is substantially the same as that in the Strohacker case, supra, to which reefrence is made for a somewhat detailed statement of the facts. Appellant insists with much earnestness, however, that we should overrule the Strohacker case, as being unsound and not in accord with.the weight of authority. We cannot agree.”

In our most recent decision involving construction of an instrument containing reservations, Stegall v. Bugh, supra, relied upon by both parties to the appeal, we adhered to the principles of construction of such instruments announced in Missouri Pac. R.R. Co. v. Strohacker, supra. Thus for the past twenty-five years it has been the settled rule of this court that, where there is ambiguity as to minerals actually embraced in instruments purporting to convey or to reserve certain unspecified minerals under generalized terms as to minerals, a fact question is presented as to the true intent of the parties; and in such cases the contemporary facts and' circumstances surrounding the execution of the instrument are admissible in evidence on the question. Furthermore, the intent of the parties will be determined so as to be consistent with and limited to those minerals commonly known and recognized by legal or commercial usage in the area where the instrument was executed.

Appellee states in its brief, ‘ ‘ Certainly the rule put forth in the Strohacker, Bugh and Brizsolara cases is consistent with the rules of law affecting real property conveyances generally.” We agree.

Different factual situations have existed and may continue to exist as to what substances constitute commonly known and recognized minerals in various areas of the state. It was apparently for this precise reason that the court recognized the need for such a rule of construction as that announced in the Strohacker case.

Based upon our recitals as to the facts in this case and as to the applicable principles of law, we have concluded that the finding of the chancellor that gas was a commonly recognized mineral in Logan County on July 26, 1905, is not against the preponderance of the evidence in this case and that the judgment entered thereon should not be disturbed.

Affirmed.

Amsler, J., not participating.

McFaddin, J., concurs in part and dissents in part.

Ed. F. McFaddin, Justice,

concurring in part and dissenting in part. I agree that oil and gas were generally recognized as minerals in 1905, so I concur-with the Majority in affirming the decree here challenged. But I dissent from the reasoning which the Majority Opinion uses to reach such affirmance. I call attention again to the views I expressed in my dissenting opinion in Stegall v. Bugh, 228 Ark. 632, 310 S. W. 2d 251; and I express the hope that this Court will ultimately see fit to fix a date applicable to the entire State of Arkansas when oil and gas became generally recognized as minerals.

As I view the cases, we now seem to be proceeding on a county by county basis, because the Majority Opinion in the present case says: “ ... we have con-eluded that the finding of the Chancellor that gas was a commonly recognized mineral in Logan County on July 26, 1905, is not against the preponderance of the evidence in this case and that the judgment entered upon this finding should not be disturbed.”

On this matter, of how to determine when oil and gas were recognized as minerals, we have drifted like a “ship without a rudder,” as quotations from our cases will show.

(a) We started out in the Strohacker case in 1941 by saying it was the intention of the grantor that determined the issue, and we said:

“Our task is to decide what Iron Mountain meant when it reserved ‘all coal and mineral deposits.’ Although there were court decisions holding oil and gas to be minerals, such was not the general construction; and this was particularly true in a country where oil and gas were not given the slightest commercial consideration in connection with land values. ‘All coal and mineral deposits’ undoubtedly were thought to mean, in addition to coal, deposits of substances commonly recognized as minerals, ? ? '

(b) Then, in the Furqueron case in 1946, we quoted a headnote from the Strohacker case which included both the intention of the grantor and the intention of the grantee in the deed, for the said headnote reads:

“ ‘By excluding from deeds executed in 1892 and 1893 “all coal and mineral deposits” pertaining to lands in Miller County, Arkansas, accruing’ to railroad company through government grants, the company no doubt had in mind, as did its grantees, only substances then commonly recognized as minerals ; and in view of such intent the language was not sufficient to reserve oil and gas.’ ”

(c) Then in the Carson case in 1948, we again tested the mineral question by the mutual intention of the parties, for we said:

“We conclude that the rule announced in the Strohacker case, supra, as well as the unreasonableness, under the circumstances, of the construction asserted by appellee, requires a holding that bauxite was not in the contemplation of the parties to the contract when this reservation of mineral rights was made.”

(d) In the Brizzolara case in 1949, we still tested the mineral question with the “intent with which the words were used,” for we there said:

“ . . . the rule deals with a question of fact rather than of law.” “ . . . the question involves the intent with which these words were used in a different deed in 1897. At the trial neither party offered proof on this point, . . . ” ‘ ... we think it best to remand so that the facts may be ascertained.”

(e) But when we decided the Stegall case in 1958, we departed entirely from what the parties to the conveyance intended, and went to the test of what the word mineral was generally understood to mean at the time of the conveyance, for we said:

“We think that the meaning which this court has heretofore and should hereafter give to the word ‘mineral,’ in connection with its use in situations similar to those of this case, is governed not by what the grantor meant or might have meant, but by the general legal or commercial usage of the word at the time and place of its usage.”

(f) And now, in the present case, we seem to be going to a coimty by county basis to determine when oil and gas became recognized as minerals, for the Opinion herein contains the language already quoted, which is, “ ... we have concluded that the finding of the Chancellor that gas was a commonly recognized mineral in Logan County on July 26, 1905, is not against the preponderance of the evidence in this case and that the judgment entered upon this finding should not be disturbed. ’ ’

So we have gone from what the grantor intended, to what the parties intended, to what was generally understood in the locality, to what was understood in the particular county in which the land was located. It now seems that there will have to be a case brought to this Court from each of the seventy-five counties in Arkansas to have determined when oil and gas were first generally recognized as a mineral, in each such county; and it is from that line of holdings that I must necessarily dissent. As I tried to point out in my dissent in Stegall, I insist that oil and gas were generally considered to be minerals in all of Arkansas as early as January 1, 1900. I wish this Court would so state and put an end to this ‘ ‘ drifting like a ship without a rudder” course that we are pursuing on this question which is vital to property.

In short, I still insist that I was right in my dissent in Stegall v. Bugh, supra. I probably will not be on this Court when another mineral reservation case arises; but I predict that at some time the Court must fix a statewide date when it was generally recognized that oil and gas were minerals. We have before us in the case at bar as fine a record as will ever be presented on this question; and I think this is the time when it should be done; and I would still insist on January 1, 1900, as such date—or, if the “beginning of the century” is considered a more poetic date, then Jan. 1, 1901, would satisfy the situation.

        Mo. Pac. Rd. Co. v. Strohacker, 202 Ark. 645, 152 S. W. 2d 557.

        Mo. Pac. Rd. Co. v. Furqueron, 210 Ark. 460, 196 S. W. 2d 588.

        Carson v. Mo. Pac. RR. Co., 212 Ark. 963, 209 S. W. 2d 97.

        Brizzolara v. Powell, 214 Ark. 870, 218 S. W. 2d. 728.

        Stegall v. Bugh, 228 Ark. 632, 310 S. W. 2d 251.