text:
    SUNRAY DX OIL COMPANY et al v. John E. MAHAFFEY & ASSOCIATES, INC.
    5-5723
    474 S.W. 2d 119
    Opinion delivered December 20, 1971
    [Rehearing denied January 17, 1972.]

      Pearson ir Pearson and Shaw ir Ledbetter, for appellants.

      Jones ir Segers, for appellee.
   Carleton Harris, Chief Justice.

Appellee, John E. Mahaffey and Associates, Inc., hereafter called Mahaffey, instituted suit in the Washington Chancery Court on June 25, 1969, against Sunray Oil Company DX Division, one of the appellants herein, and by such complaint and subsequent amendments filed, asserted that Maurice A. Finney and wife, Louise McDonald Finney, were the owners of real estate west of appellees’ property, and that appellant, Sunray, had leased the Finney and Harper lands. It was alleged that the lessee was encroaching upon the Mahaffey property by some 8.3 feet on the south and 7.3 feet on the north, and the prayer was that the defendants would be enjoined from further encroachments, required to remove present encroachments, and fair rental was sought for the property occupied by such encroachments prior to removal. Appellant answered with a general denial, and the appellants Finney and Harper answered, admitting ownership of the premises leased by Sunray, denying that appellees were entitled to any relief, and further stating that if such an encroachment existed, it was without any knowledge on the part of the owners. A cross-complaint was filed by these appellants against Sunray praying that if appellee recovered a judgment against the Finneys and Harper for rentals, or was granted a mandatory injunction which occasioned expense to these appellants, that they be given judgment against Sunray for the amount of any such judgment or expenses incurred. Sunray answered this cross-complaint with a general denial, and subsequently filed an amendment to the answer to Mahaffey’s complaint asserting adverse possession; the Finneys and Harper likewise amended their answer pleading adverse possession, and an agreed boundary line between appellants and appellee was also pleaded. On trial, the court resolved the issues in favor of appellee as against all appellants, and in favor of appellants, the Finneys and Harper on their cross-complaint against Sunray. The decree required Sunray to remove the encroachment placed on the property, a retaining wall, and specifically found that the true boundary line between the two properties was that alleged in the complaint of appellee; that the encroachment extended to the east onto the Mahaffey property 7.3 feet on the north and 8.3 feet on the south. No amount was given appellee for damages. From the decree so entered, appellants bring this appeal. For reversal, it is asserted that the trial court erred in its finding that the appellees had established the true location of the common lot line, and further the court erred in holding that appellants did not sustain their burden of proof relative to an agreed boundary. We proceed to a discussion of these points in the order listed.

Mr. Mahaffey, in April, 1967, purchased the property lying east of, and adjoining, the property owned by appellants and after acquiring the lot, surveyed the land including lots on both sides of the property purchased. His survey, which was made in accordance with the legal description contained in the deed conveying to him, revealed that there was a concrete retaining wall encroaching on his lot by some 7.3 feet on the north end and some 8.3 feet on the south. The description in the deed received by Mahaffey had as a beginning a point 104 feet east of “the NW corner of Block 30 to the Masonic Addition to the City of Fayetteville”, and this was the point used by Mahaffey, a registered engineer himself, in making the survey. He testified that though the original plat of Masonic Addition was dim and somewhat indefinite, based upon that plat and the deeds and records of the adjoining properties (on each side), he felt that the proper starting point had been used. The property leased by Sunray gives the legal description, and then, in parentheses refers to Appellants’ eastern boundary as “Jackson’s lot”, this lot being the property that Mahaffey purchased in 1967. The legal descriptions of both the Sunray lot and the lot east of appellee’s land (McDonald’s lot) had starting points tied to the quarter section line and appellee’s survey of these lots conformed to the legal description of all three properties. Mahaffey stated that the beginning point in the description of appellants’ property which was “15 feet east of the quarter section line” and the beginning point of his description, which is “the NW corner of Block 30” are the same points expressed differently.

The conclusions reached by Mahaffey are disputed by Don Kemp, not an engineer, but a registered land surveyor, who had trained under Mahaffey, and who testified on behalf of appellants. Kemp made his first survey in 1964, when the retaining wall was built by appellants, and in fact, the wall was placed in its location (as the boundary line) on the basis of this survey.

Mr. Kemp’s testimony is confusing as to whether he used the legal description furnished by Sunray, or another legal description he obtained by checking the courthouse records, or, a composite of both, though it appears that the last is nearer correct. Taking this description, Kemp arrived at a point on the ground which he considered to be the NW corner of Block 30. He considered this point to be the same as Mahaffey’s “apparent NW corner of Block 30 of Masonic Addition”.

Using his description, Kemp started at the SW corner of the quarter section and proceeded to run the lines out. He testified that he went 690 feet north of the SW corner and then went east 15 feet for the beginning point. He then ran 104 feet east according to the description and came to a point on the ground which is some 7.3 feet west of where he ultimately located the eastern boundary of the property. Noticing a difference in the boundary as located on the ground, and the way it is surveyed, Kemp checked extensively on the boundary lines throughout the entire block. Surveying the block, he decided there was a persistent 7 foot error between the apparent physical boundaries and the boundaries called for in the legal descriptions, with the exception of the last two properties on the block. At the NE corner of the block, the witness testified that he found an iron pin monument. Starting with this monument and surveying back to the Sunray property on the NW corner of the block, Kemp concluded that the disputed boundary line was 7.3 feet east of the point he had arrived at prior to conducting this survey of the entire block. It was this boundary that the witness considered as being the true boundary. The testimony reveals a rather unusual circumstance. The witness testified that, when requested to make the survey, Sunray furnished him with a legal description of the property being leased in order to accomplish that assignment. Though he decided that the description was incorrect, and went beyond his instructions to the extent of locating the descriptions of the property all along the block to ascertain if those persons had all the property coming to them, and though furnishing Sunray with a plat that did not coincide with the legal description that he had been furnished by that appellant — Kemp never mentioned the matter to his employer (Sunray).

. Kemp admitted that if he had followed the legal description of appellants’ property, his survey would have come out exactly the same as the Mahaffey survey. He also admitted that if he had begun at the beginning point described in appellants’ legal description, and proceeded east 104 feet, he would have arrived at a point approximately 7.3 feet short of where he subsequently put the pins. This point marked the boundary line surveyed by Mahaffey.

The transcript reveals the following questions propounded by the court and the answers of Kemp.

“Q. Now, I gather from your testimony, that in your judgment as a professional and experienced engineer and surveyor, the actual physical location on the ground, that the northwest corner of Block 30 in the Masonic Addition is sort of up in the air?
A. That’s correct.
Q. You are not really sure where it is and are not really sure whether its location can really be determined, is that correct?
A. That’s correct.”

It is thus apparent that Kemp was not completely confident of his survey.

Appellant argues that, since appellee instituted the suit, it must prevail upon the strength of its own title, ánd not the weakness of the title of its adversary. That is true, but we agree with the trial court that Mahaffey established title, though perhaps not to a mathematical certainty. Some facts are clear. The correctness of Mahaffey’s survey as to the location of the boundaries according to the legal description is undisputed. Mahaffey followed the legal description of the appellants’ property, and the legal description of the property adjoining him on the east, for reference in establishing what, in his opinion, was the location of the NW corner of Block 30 of the Masonic Addition, the point to which the legal description of his property is tied. The surveys of both properties adjoining Mahaffey’s lot were based upon legal descriptions tied to a fixed monument — the quarter section corner. The fixed location of this quarter section corner controls courses and distances taken from the corner. Mahaffey used these legal descriptions tied to the fixed corner for references in determining the boundaries of his property. On the other hand, Kemp based his conclusion as to the location of the disputed boundary upon the terminal point of a survey originating at the NE corner of the block and measuring the frontage of all the lots between that corner and the disputed boundary. As to the lots of other persons not involved in this litigation, Kemp testified that he acquired the information used in his survey of these properties from courthouse records. This undoubtedly included the legal descriptions in the deeds.

It is also contended that appellants acquired title by virtue of an agreed boundary line. We agree with the chancellor that this proof was deficient. As far as an actual agreement is concerned, the only testimony that touched upon such contention was that of Carl L. Smith, who, some years ago, owned the Mahaffey property. Smith testified that his mother had made an agreement as to the property line, but it developed on cross-examination that he had no knowledge of this himself, including no knowledge of the name of the person his mother made the agreement with, but he did say that he understood “it was with the person, whom my mother bought the property from”. Of course, this would mean nothing unless that person also owned the adjoining property on the west. At any rate, the matter was hearsay as far as the witness was concerned. He stated that he had claimed up to a certain tree that was mentioned in the testimony, but Smith did not own the property for more than a year or two, and, for that matter, it appears that any “claiming” had simply been in his mind; that is, there was no dispute with neighbors, nor any evidence that the owners of the Finney-Harper lot recognized any such line. Other witnesses, referring to “a line of trees”, “a tree”, and an “old wooden fence” testified, but we agree with the chancellor that none of this testimony was definite enough to fix any line and show that it had been acquiesced in, or observed, by the property owners. Accordingly, we see no need to detail this evidence. Of course, if landowners, through ignorance, rather than by agreement, recognize an erroneous common boundary, possession must then be adverse and must continue for the statutory period of seven years in order to ripen into title; Barham v. Gattuso, 216 Ark. 690, 227 S. W. 2d 151.

Seven witnesses testified in this litigation, and it appears that the chancellor paid close attention to their testimony and the exhibits; in fact, he rendered a rather comprehensive opinion relative to the contentions of the parties. As stated in Mason v. Peck, 239 Ark. 208, 388 S. W. 2d 84:

“The location of a boundary line is to be determined by a preponderance of the evidence. Buffalo Zinc & Copper Co. v. McCarty, 125 Ark. 582, 189 S. W. 355. It is well settled that on appeal we do not disturb the find[ing]s of the chancellor unless against the preponderance of the evidence.”

Certainly, we are unable to say that the chancellor’s findings were against the preponderance of the testimony.

Affirmed.

      It was urged below by appellants that they had established title by adverse possession, but that contention was abandoned.

      The conveyance to Mahaffey called for frontage of 57 feet and his survey revealed 49.7 feet.

      On Kemp’s plat of the 1964 survey, purportedly depicting the existing physical boundaries at that time, the northeastern corner of appellants’ property was shown to be 119 feet east of the quarter section line on a row of trees. However, on a plat prepared by Kemp per another survey on the ground in August, 1970, when one refers to the red lines allegedly depicting physical boundaries, this being based upon the 1964 survey, it is observed that the eastern boundary as located in the original survey is actually 126.3 feet east of the quarter section line, or, 7.3 feet east of the measurement shown in the 1964 plat. Apparently the 1964 plat shows erroneous measurements to the boundary.


source: Caselaw Access Project

author: George Rose Smith, Justice. Conley Byrd, Justice,

license: Public Domain

text:
    W. J. BUDD v. ETHYL CORPORATION et al
    5-5681
    474 S.W. 2d 411
    Opinion delivered December 20, 1971
    [Rehearing denied January 24, 1972.]

      Chambers ir Chambers, for appellant.

      Anderson ir Crumpler and Baker & Botts, for appellees.
   George Rose Smith, Justice.

This case involves a salt-water recycling operation by which the appellees are renjoving salt water from the earth, extracting certain valuable minerals therefrom, and then returning the salt water to the earth. The appellant, as the owner of a mineral interest and a fractional leasehold interest in the vicinity, brought this suit to require the appellees to account to him for his proportionate share of the profits accruing from the recycling process. This appeal is from an order sustaining a demurrer to the appellant’s complaint and dismissing it. The question is whether the complaint states a cause of action.

The complaint describes the appellees’ recycling operation in substance as follows: The appellees have oil-gas-and-mineral leases upon a compact block of about 16,000 acres of land. They have a number of input wells in what is roughly a circle near the outer edge of the block. They have a number of output wells within that circle. The appellees withdraw salt water from the inner wells, extract therefrom valuable minerals (one of which, according to the briefs, is bromine), and then forcible inject the sale water into the input wells, which presumably facilitates the further withdrawal of salt water from the output wells.

The appellant asserts the invasion of two separate property interests, which must be discussed separately.

First, the appellant owns an undivided one thirty-sixth interest in the minerals in 240 acres lying next to, but outside of, the appellees’ 16,000-acre block. The appellees do not have a lease upon the 240 acres in question. The appellant asserts that the recycling operation is actually draining salt water from the 240 acres and that the appellees should be made to account to him for his share of the minerals that are being extracted from the salt water.

That argument is refuted by the law of capture, which we hold to be applicable in this situation. That law was stated in our early case of Osborn v. Ark. Territorial Oil & Gas Co., 103 Ark. 175, 146 S. W. 122 (1912): “Petroleum, gas and oil are substances of a peculiar character. * * * They belong to the owner of land, and are part of it so long as they are part of it or in it or subject to his control; but when they escape and go into other land or come under another’s control, the title of the former owner is gone. If an adjoining owner drills his own land and taps a deposit of oil or gas extending under his neighbor’s field, so that it comes into his well, it becomes his property.” Later cases are to the same effect.

We do not agree with the appellant’s insistence that the law of capture was completely nullified by the statute which permits the Oil and Gas Commission to bring about compulsory unitization in oil and gas fields. Ark. Stat. Ann. § 53-115 (b) (Repl. 1971). Of course the rule of capture does not apply in fact situations where the Commission’s power to order unitization has actually been exercised. See Cornelius v. Ark. Oil & Gas Commn., 240 Ark. 791, 402 S. W. 2d 402 (1966). But there has been no unitization with respect to the 240-acre tract in which the appellant owns an undivided mineral interest; and furthermore, we find no authority in the Oil and Gas Commission to order the. unitization of saltwater operations that have no bearing upon the extraction or conservation of oil or gas. It follows that the law of capture prevents the appellant from maintaining his first asserted cause of action.

Secondly, the appellant demands an accounting with respect to a 40-acre tract, lying inside the appellees’ circle of input wells, upon which the appellant holds an undivided one-tenth leasehold interest (that being the lessee’s interest in an oil-gas-and-mineral lease). The appellees own all the rest of that 40-acre tract, comprising the fee simple and the remaining nine-tenths of the leasehold. The appellant again asserts a right to his proportionate part of the profits accruing from the re-, cycling operation.

We think the chancellor was right in rejecting that contention. Here the issue turns upon the limited nature of a lessee’s property rights, prior to his attainment of production. Quoting again from the Osborn case, supra: “A gas lease, such as is involved in this case, is a contract granting to the lessee the right to explore the land and to produce therefrom the gas therein discovered. It is not a present sale or transfer of title to the gas, but, on account of its vagrant nature, the gas does not become actually owned until actually possessed. As is said in the case of Williamson v. Jones, 39 W. Va. 231: ‘The title is dependent on finding the gas by the purchaser in a limited time,’ and is inchoate.” That thought was echoed in Pasteur v. Niswanger, 226 Ark. 486, 290 S. W. 2d 852 (1956): “Our court has held that an oil and gas lease conveys an interest and easement in land itself, but no title passes until the oil and gas are reduced to possession.”

Attached to the complaint is a copy of the lease under which the appellant asserts a one-tenth leasehold interest in 40 acres. That lease provides that the “Lessee shall have the fight to drill . . . and operate a well or wells for the production of salt water ... or for the injection of salt water produced by lessee from lands covered by this lease.” Thus the appellant has the same right to produce and recycle salt water as that now being exercised by the appellees. The complaint alleges, however, that the appellant’s interest is so small that the cost of drilling salt-water wells would be prohibitive. It is on that basis that he asserts a right to share in the profits of the appellees’ operations.

In holding the appellant’s argument to be unsound we are influenced by two considerations. One: The appellant’s claim to the minerals in solution in the salt water is merely inchoate, as we pointed out in the Osborn case. Thus there is no trespass upon a vested existing property right, as is the case when a tenant in common of the mineral ownership drills a producing oil or gas well without the consent of his cotenant. In that situation accountability seems to be the rule. Earp v. Mid-Continent Petroleum Corp., 167 Okl. 86, 27 P. 2d 855, 91 A. L. R. 188 (1933); Rosse v. Northern Pump Co., 353 S. W. 2d 287 (Tex. Civ. App. 1962); Torgeson v. Connelly, Wyo., 348 P. 2d 63 (1959). There, however, the law finds a direct infringement of an existing vested property right.

Two: The appellant’s standing in a court of equity is decidedly weak, in that he seeks to reap the profits of the recycling venture without having volunteered to incur any of its risks. The complaint alleges that the appellees are operating about 10 input wells and about 25 output wells, all of which are apparently at least 4,000 feet deep. We know judicially that great sums of money were invested in those 35 wells. Yet the appellant’s complaint makes no assertion that he volunteered to share the risk of a recycling project that might have been a financial disaster. Had he refused an offer to participate in the venture, he would not have had any standing in equity to insist upon a share in the profits. Tide Water Associated Oil Co. v. Stott, 5th Cir., 159 F. 2d 174 (1946); California Co. v. Britt, 247 Miss. 718, 154 So. 2d 144 (1963). We cannot say that the silence of his complaint upon this point, when an affirmative position is demanded, puts him in any better position than that of the plaintiffs in the Stott and Britt cases. Of course our own case of Ashland Oil & Refining Co. v. Bond, 222 Ark. 696, 263 S. W. 2d 74 (1953), is clearly distinguishable, for there the two colessees agreed to rework the well together and so joined in risking the consequences of failure. That was precisely the risk that the appellant was apparently unwilling to take in the case at bar.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I cannot distinguish between unitization by law and unitization in fact. The appellees here have done in fact with a bromine operation that which is authorized by law in oil and gas operations. When artificial force or pressure, as distinguished from the forces of nature, is used to recycle salt water or any other solution through the sands of any formation to remove the minerals therefrom a trespass is as surely committed as when artificial wind is created to cause my neighbor’s pecans to fall on my land.

Furthermore, if I understand the majority opinion correctly, the appellant can proposition the appellees to join with him in a bromine operation and upon their refusal he can install as large a pump as man can devise and remove by capture all the salt water in the total basin including that generated by appellees’ recycling operation. Of course, this is contrary to what we held in Dodson v. Oil and Gas Commission, 218 Ark. 160, 235 S. W. 2d 33 (1950), because we there limited Dodson to the recovery of the 250 barrels of oil per day he had been obtaining from his oil well before the recycling process was commenced even though the well-was producing 350 barrels per day after the recycling was put in operation.

I agree with so much of the opinion as deals with the property outside of recycling area.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Daniel MONTGOMERY, Jr. v. STATE of Arkansas
    5596
    473 S.W. 2d 885
    Opinion delivered December 20, 1971

      M. J. Etoch, Jr and A. M. Coates, for appellant.

      Ray Thornton, Attorney General; Henry Ginger, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

This is a prosecution for first degree rape, in which the appellant was found guilty and sentenced to death. Finding reversible errors in the record, we discuss those matters and also such other questions as are apt to recur upon a new trial.

The prosecutrix, Laura Wolfe, age 18, was living with her mother in West Helena oh the date of the offense, October 17, 1969. She testified that at. about 11:00 a.m. a man whom she identified as the defendant knocked on the door, stated that he was a roof repairman, and asked permission to use the telephone to call his boss. Having gained entrance into the house in that manner, the man threatened the prosecutrix with a large, wide-bladed, shiny knife and forced her to submit to him in a bedroom. The prosecutrix’s mother was in the house at the time, but she was unable to identify the intruder, because he compelled her to remain in a small closet while he was within the house.

At the trial a pivotal question of fact was Montgomery’s identity, it being his steadfast contention that he was not the man who committed the offense. The prosecutrix was the only eyewitness to the crime. She bolstered her identification of the defendant by testifying that a butcher knife and a narrow-brimmed hat seized by the officers by means of a search warrant were similar to the knife held and the hat worn by the intruder on the day of the offense. This brings us to the appellant’s first contention, that the search and seizure were unlawful.

That contention is well taken. It is now settled that “the affidavit for a search warrant must contain affirmative allegations of fact from which the magistrate [issuing the warrant] may independently decide for himself whether there is probable cause for the search.” Ferguson v. State, 249 Ark. 138, 458 S. W. 2d 383 (1970), citing Spinelli v. United States, 393 U. S. 410 (1969), and Aguilar v. Texas, 378 U. S. 108 (1964). In the case at bar the affidavit, completed upon an all-too-brief printed form, merely described the property to be seized as shoes with asphalt on them, a knife with a wide blade, a dark hat with a small brim, clothing worn during the rape, and asphalt in a truck. The printed form then went on to recite that “I do in truth suspect that such property is concealed” in the house or premises & 1964 Chev. lA truck occupied by Daniel Montgomery in the City of West Helena. That is all. It will be seen at once that the affidavit stated no fact whatever from which the magistrate might have independently decided for himself that there was probable cause for the search.

We are not overlooking the fact that while the objection to the evidence in question was being argued in chambers, a deputy prosecuting attorney who had assisted in the procurement of the search warrant added certain details that were purportedly included in an oral sworn statement made to the issuing magistrate. The deputy prosecutor’s comments, however, were not made under oath, and we certainly cannot affirm a death sentence on the basis of unsworn remarks made by counsel in the course of an argument about the admissibility of evidence.

A related point, also bearing upon the vital issue of identity, concerns the admissibility of the testimony of Loretta Bailey. That witness testified that at about 8:15 on the morning of the crime a man whom she identified as Montgomery came to her house, about three blocks from the home of the prosecutrix, stated that he was a telephone company employee, and asked permission to make a telephone call. The man left when the witness told him that she did not have a telephone in her house.

We are of the view that Loretta Bailey’s testimony was properly admitted. When the issue is one of identity, proof of other similar conduct by the defendant may be admissible to establish a modus operandi on his part. Tarkington v. State, 250 Ark. 972, 469 S. W. 2d 93 (1971). When we consider that the incident at Loretta Bailey’s house occurred on the same day as the offense charged, that it was only three blocks away, and that both occasions involved an attempt by Montgomery to obtain entrance into a woman’s home by subterfuge, we are unable to say that the testimony was so irrelevant as to be inadmissible. Its weight, of course, was for the jury.

Next, the appellant objects both to the testimony of Loretta Bailey and to that of the prosecutrix, on the ground that their identification of Montgomery was tainted by means of separate police lineups at which they each picked out Montgomery as the man in question. We find no merit in the appellant’s insistence that he was denied the assistance of counsel at the lineups, for there is no proof that he asked for, or was entitled to, the aid of a lawyer at those times. In that respect this case differs from United States v. Wade, 388 U. S. 218 (1967), because in that case the police knew that the accused already had engaged an attorney, yet they conducted the lineup without notice to the attorney. We do not read that opinion as holding tha^ every lineup identification conducted in the absence of a lawyer is necessarily a denial of the accused’s right to be represented by counsel.

The appellant raises a further question with respect to the lineup procedure. There are indications that the lineups were not conducted with complete fairness to the accused. In that situation, as the Supreme Court held in the Wade case, supra, the State must show by clear and convincing evidence that the witness’s subsequent courtroom identification of the accused was based upon independent observations not tainted by the lineup procedure. Here we cannot say positively from the record that the trial court abused its discretion in allowing the witnesses to identify Montgomery in the courtroom, but we do suggest that the proof be developed in more detail upon a retrial of the case.

We find no merit in the appellant’s insistence that he should be discharged for the reason that he was confined in jail for more than two terms of court without being brought to trial. Ark. Stat. Ann. § 43-1708 (Repl. 1964). After only one continuance that might be charged to the State, the accused was in fact brought to trial, but that hearing resulted in a mistrial, owing to a hung jury. It is our view that the defendant’s statutory right to a speedy trial, within two terms of court, was satisfied by the first trial, so that the statute began to run anew after the mistrial. There is no contention that Montgomery was not again brought to trial before the elapse of more than one additional term of court. We are not willing to hold that an elapse of only one term before the mistrial can be added to the elapse of only one term after the mistrial to establish a violation of the statutory prohibition against the confinement of an accused for more than two terms of court.

We find no error in the trial court’s method of qualifying the jury, with respect to the veniremen’s beliefs about capital punishment. The court consistently excused for cause only those prospective jurors who said that they could not in any event vote to impose the death sentence. That procedure followed the Supreme Court’s pronouncements in Witherspoon v. Illinois, 391 U. S. 510 (1968), where the court expressly disclaimed any intent to rule upon “the State’s assertion of a right to exclude from the jury in a capital case those who say that they could never vote to impose the death penalty.”

Other irregularities in the procedure below are not apt to recur upon a new trial. The court erred in allowing the State to introduce an F. B. I. report that was admittedly hearsay. While the error may have been invited by the defense, it is not likely that a similar invitation will be issued upon a retrial. Much the same statement may be made about the State’s cross examination of Montgomery with reference to prior arrests. It is possible that such a cross examination was invited by defense counsel’s direct examination, but the situation is not likely to come up again. In any event, in no case should the prosecution be permitted to display within sight of the jury what is generally referred to as a “rap sheet,” with the concomitant prejudicial implication that the accused is guilty of the prior charges inquired about, even though his denial of guilt is conclusive upon the prosecution.

Reversed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result reached in this case and the majority opinion. I would add that I am of the opinion that the search was also invalid as to the clothing of appellant because it was mere evidence, and no authority then existed for issuance of a search warrant for this type of evidence. My views are expressed in a concurring opinion in Ferguson v. State, 249 Ark. 138 (1970), 458 S. W. 2d 383. The knife, of course, was allegedly an instrumentality of the crime, and a valid search warrant for it would have been authorized.


author: George Rose Smith, Justice. Conley Byrd, Justice.

text:
    Jimmy Alfred SWEATT v. STATE of Arkansas
    5629
    473 S.W. 2d 913
    Opinion delivered December 20, 1971.

      Pollard, Bethune ir Cavaneau, for appellant.

      Ray Thornton, Attorney General; Robert H. Crank, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was convicted of selling or bartering LSD, a hallucinatory drug, to Robbie White, a 14-year-old boy. The jury fixed the punishment at confinement in the penitentiary for five years. For reversal' the appellant argues, primarily, that the proof does not support the conviction and that the court erred in allowing the State to introduce proof of other offenses.

Robbie White’s testimony was sufficient to sustain the verdict. He testified that he bought an LSD tablet from Sweatt for $3.00, on credit (though he never paid the debt). At the time Sweatt told him the the strength of the LSD tablet was 300 micrograms. Robbie said that when he took the tablet it caused him to “go on a trip” for about a day. He also said that his vision was messed up, he couldn’t do things right, and he felt dead. The jury was justified in concluding from Robbie’s testimony that Sweatt said that the tablet was LSD and that in fact it was.

Upon the second point the appellant is right in his contention that the court erred in permitting the State to prove other offenses committed by Sweatt. The court allowed the prosecution to introduce much testimony showing that Sweatt had had marijuana at his apartment and had sold it. In fact, as in Moore v. State, 227 Ark. 544, 299 S. W. 2d 838 (1957), the other offenses were proved in more detail than was the charge actually being tried.

Our basic rule was stated in Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954): “The State is not permitted to adduce evidence of other offenses for the purpose of persuading the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.” In the case at bar the issue for the jury was whether Sweatt had sold LSD to Robbie White. Proof that Sweatt had sold marijuana on other occasions had no relevancy except to show that Sweatt had dealt in drugs before and hence was likely to have done so again. That is precisely the type of proof that must be excluded. If Sweatt was guilty of other crimes, then, as we said in Alford, "each may be examined separately in a court of law, and punishment may be imposed for those established with the required certainty. In this way alone can we avoid the elements of unfair surprise and undue prejudice that necessarily attend trial by accusation in place of trial upon facts demonstrated beyond a reasonable doubt.”

The appellant also argues that the court erroneously allowed the prosecutor to ask leading questions and to adduce hearsay testimony to explain the absence of a witness. Since those matters are not apt to arise upon a new trial we find it unnecessary to discuss them.

There is one other matter, however, that must be passed upon, in view of the necessity for a retrial. The court instructed the jury that Robbie White was an accomplice and that therefore his testimony alone, without corroboration, could not support a conviction. Ark. Stat. Ann. § 43-2116 (Repl. 1964).

The giving of that instruction was error, for Robbie White was not an accomplice in the selling of LSD. (There is no proof of the alternative charge, that of bartering LSD.) In Henderson v. State, 174 Ark. 835, 297 S. W. 836 (1927), we discussed at some length the general principles governing the determination of who is and who is not an accomplice. Basically, an accomplice is one who commits or aids in the commission of the crime with which the defendant is charged. From that opinion: "An accomplice is one who could himself be convicted of the crime charged against the defendant, either as principal or accessory. That means convicted of the crime being investigated . . . The crime being investigaged in this case was the crime of possessing a still, and not the manufacture of liquor. The witness Goff was an accomplice in the manufacture of liquor, because he did work at the still and thereby aided and assisted in the manufacture of the liquor. But manufacture is a distinct crime from possession, and he did nothing, as far as the record shows, that indicated that he had any possession or control or that he did anything else except to work as a servant for the appellant.

"It is not sufficient that a witness was engaged with the person charged in an offense other than the one for which he is being tried, but the evidence, in order to make him an accomplice, must show that he aided and assisted in the particular crime charged and being investigated, and not in some other crime. [We then commented upon a Kentucky case in this language:] The person who bought the lottery ticket violated the law, but the crime of purchasing a lottery ticket was a different crime from selling a lottery ticket.”

It is uniformly held that one who buys narcotics, intoxicating liquor, or other contraband is not an accomplice in the sale of the article, for obviously he is not selling to himself. As the California court rather graphically put the distinction, to be an accomplice one "must stand in the same relation to the crime as the person charged therewith and must approach it from the same direction.” People v. Poindexter, 51 Cal. 2d 142, 330 P. 2d 763 (1958). A buyer and a seller certainly approach the transaction from opposite poles.

Wharton states the fundamental rule with respect to buyer and seller and then goes on to give a practical basis for the doctrine: “The person to whom narcotics are sold is not an accomplice of the defendant who is charged with selling the narcotic. Nor is the purchaser of liquor an accomplice of a defendant being prosecuted for selling such liquor. # * * The reason for holding that the purchaser is not the accomplice of the seller is that the purchaser, if guilty of any crime, is guilty of a crime distinct from that for for which the seller is being prosecuted. As a practical consideration, any other conclusion would render it almost impossible to secure the conviction of a person charged with illegally vending intoxicating liquors, unless such sale was made in the presence of disinterested witnesses.” Wharton’s Criminal Evidence, § 456 (12th ed., 1955).

Directly in point are our cases holding that the purchaser of liquor being unlawfully sold is not an accomplice of the seller, where the latter is being charged with the unlawful sale. Williams v. State, 129 Ark. 344, 196 S. W. 125 (1917); Wilson v. State, 124, 477, 187 S. W. 440 (1916). We can find no significance in the fact that, when those two cases were decided, the buyers were actually guilty of no offense in making the illegal purchases. Later on, possession of such intoxicating liquor was also made an offense, C. & M. Digest § 6169 (1921), but we adhered to our rule that the purchaser was not an accomplice in the sale. Rich v. State, 176 Ark. 1205 (mem.), 2 S. W. 2d 40 (1928).

We should mention two other suggestions that were made during the discussion of the case at our conference. First, the governing statute makes it unlawful for a person to use, possess, sell, exchange, give, barter, or otherwise dispose of LSD. Ark. Stat. Ann. § 82-2110 (Supp. 1969). It was suggested that Robbie White was an accomplice because he was guilty of a separate offense denounced by the same statute: that of possessing LSD. We find no merit in that suggestion. As long as the offenses are separate, and as long as the asserted accomplice is not guilty of the principal offense on trial, it makes no difference that the accomplice was guilty of a different offense defined by the same statute. People v. Stone, 89 Cal. App. 2d 853, 202 P. 2d 333 (1949); State v. Tennyson, 212 Minn. 158, 2 N. W. 2d 833, 139 A. L. R. 987 (1942).

Secondly, it was suggested that we should regard as controlling precedents our cases holding that one who receives stolen property is an accomplice of the thief. We adopted that view solely because we had previously held that one who is an accessory after the fact is an accomplice. Hence we found it necessary to hold that the receiver of stolen goods was an accomplice of the thief, since the former was then held to be an accessory after the fact. Murphy v. State, 130 Ark. 353, 197 S. W. 585 (1917). Moreover, as we observed in Hester v. State, 149 Ark. 625, 233 S. W. 774 (1921), one who receives stolen goods, knowing that they were stolen, “for the purpose of helping to dispose of the same,” is in the attitude of an accomplice. In the language of the California court, quoted earlier, he approaches the crime from the same direction, because both participants are depriving the true owner of his property. Clearly our cases having to do with the buying and selling of intoxicating liquor are much more directly in point than those dealing with the receipt of stolen property.

We are, for the reasons stated, firmly convinced that Robbie White was not an accomplice in the selling of LSD. As Wharton, supra, points out, the contrary view would render it almost impossible for the State to secure convictions for the unlawful sale of drugs, untaxed liquor, or other articles that cannot lawfully be sold. We have no inclination to adopt a rule so manifestly unsound.

Reversed.

Fogeman, J., not participating.

Byrd, J., dissents.

Conley Byrd, Justice.

I concur in the reversal, but dissent as to the portion of the opinion that holds that Robbie White was not an accomplice.

The recognized test as to whether a person is an accomplice is set forth in Murphy Alias Carraway v. State, 130 Ark. 353 (1917), in this language:

. . An accomplice in the full and generally accepted legal signification of the word is one who in any manner participates in the criminality of an act, whether he is considered in strict legal propriety as a principal in the first or second degree or merely as an accessory before or after the fact.”

In holding that a thief and a receiver of the stolen property were accomplices, Justice Frank Smith went on to state:

“The opinions on this subject are more or less abstruse and deal with learning more or less ancient, but without attempting to review all these cases, we announce our conclusion to be that the receiver of stolen goods and the thief from whom he received them are accomplices within the meaning of section 2384 of Kirby’s Digest, which provides that a conviction can not be had in any case of felony upon the testimony of an accomplice unless corroborated by other evidence tending to connect the defendant with the commission of the offense. This view comports with the definition of an accomplice given in the case of Polk v. State, supra, and approvingly quoted in the case of Atchison v. State, supra. We think, too, that this view conforms to the spirit and reason which led to the rule of evidence enacted in this State by what is now section 2384 of Kirby’s Digest. One who steals, or who knowingly receives stolen goods, is a felon, and would have the quite human desire of sharing his guilt with another, if he were so far unable to exculpate himself as that he must confess his own guilt. Men are prone to take to themselves full credit for their successes and to charge to others responsibility for their failures. So one charged with crime will likely excuse himself and escape punishment, if possible, or, if this be impossible, he will be tempted to have some one share with him the censure and condemnation attendant upon detection. To protect the innocent against such frailty of human nature, it is provided by statute that one who confesses his own guilt can not condemn another, unless his statement is corroborated by other evidence tending to connect the person so accused with the commission of the offense confessed, and that this corroboration shall not be held sufficient if it merely shows the commission of the crime charged and the circumstances thereof.”

The reason for holding that a purchaser was not an accomplice in a prosecution for sale of intoxicating liquors was stated in Foster v. State, 45 Ark. 361, 366 (1885), in this language:

“The buyer of liquor, however, is guilty of no offense under this act, although he aids in and procures the making of the sale. The statute has marked the seller as the only criminal. ‘In cases of mala prohibita, the fact that the penalty is imposed on only one of two parties whose concurrence is requisite to the commission of the offense, and that the statute was made for the protection of the other party, who is generally regarded as the less culpable of the two, has repeatedly been considered good ground for giving the statute a construction exempting the party not named from criminal liability.’ ”

The case of Rich v. State, 176 Ark. 1205, 2 S. W. 2d 40 (1928), relied upon by the majority as holding the purchaser not an accomplice when he had also violated the law by purchase does not support the statement in the majority opinion. In fact C & M Digest § 6169 is not even mentioned in the opinion. Furthermore, a reading of § 6169, supra, shows that it only made it unlawful for one to possess beverages transported in interstate commerce at a fruit stand, bowling alley, drug store, livery stable or in any club or club room of any social or fraternal organization.

The law here in question (Ark. Stat. Ann. § 82-2110) provides:

“It shall be unlawful for any person, except as provided herein, to use, possess, have in one’s possession, sell, exchange, give or attempt to give to another, barter or otherwise dispose of: (1) lysergic acid, (2) LSD (d-lysergic acid diethylamide), (3) DMT (N-N-dimethyltryptamine), (4) any compound, mixture or preparation which is physiologically similar to any drug listed in (1), (2) and (3) above in its effect on the central nervous system, or (5) any salt or derivative of any drug listed in (1), (2) and (3).”

As can be seen from the above statute the seller is not the only criminal. In fact the user and possessor are equally as condemned. The law could have been written to protect the user and possessor, but it was not. Act 590 of 1971 has remedied the defeat in the foregoing act by reducing the act of using and possession to a misdemeanor.

For the reasons set out above, I conclude that Robbie White was an accomplice, that the trial court properly so instructed the jury and furthermore that there was no competent evidence to convict the appellant. With respect to the public policy dealing with the corroboration of evidence of accomplices, I can find no reason to require any stricter evidence to convict a thief than to convict a drug violator. The absurdity of the majority’s distinction between the two can be demonstrated in the case of a thief who steals drugs having more than $35 in value and sells them to one who knows them to be stolen. Under the majority opinion the testimony of the purchaser would be insufficient to convict the thief of larceny but sufficient to convict the thief of selling drugs. Since the receiver and possessor of the stolen drugs would be a felon under the receiving of stolen goods act and a felon as a possessor under the drug act, I am at a loss to explain the majority’s distinction.

For the reasons stated I respectfully dissent.


author: Lyle Brown, Justice.

text:
    Arthur H. HAYS, Commissioner of Labor, et al v. BATESVILLE MFG. CO.
    5-5679
    473 S.W. 2d 926
    Opinion delivered December 20, 1971

      Herrn Northcutt, for appellants.

      Highsmith, Harkly ér Walmsley, for appellee.
   Lyle Brown, Justice.

This is an unemployment compensation case. The appellants are Arthur H. Hays, Commissioner of Labor, and the claimant, Mrs. Mary Arnold. The appellee is Batesville Manufacturing Company, employer of claimant. The Searcy office of the employment security division approved Mrs. Arnold’s claim for compensation and was upheld by the appeals referee and the board of review. On appeal by the employer to circuit court the employer obtained a reversal.

In April 1968 claimant went to work for the employer on the second (night) shift. In August 1968 claimant exercised her seniority right and was transferred to the first (day) shift. On February 11, 1969, claimant was laid off due to a reduction in the labor force. She thereafter drew some $700 in compensation benefits. In October 1969 she was recalled to the second shift. She declined to accept night work “because my husband was. away and there was no one to stay with the child.”

The board of review based its finding of compensability on the fact that claimant had not been separated from her work because of misconduct in connection with the work. The board cited Ark. Stat. Ann. § 81-1106 (b) (1) (Repl. 1960). That section recites that an individual shall be disqualified for benefits “if he is discharged from his last work for misconduct in connection with the work.”

In reversing the board the trial court cited § 81-1106 (a) (Supp. 1969), where it is provided that disqualification results if the worker “voluntarily and without good cause connected with the work, left his last work.” The trial court took the position that claimant “did not perform available-, offered and suitable work, voluntarily separating herself from employment without good cause connected with the work.”

In addition to the statutes we have recited there is another section which is vital to a determination of whether claimant is entitled to have her claim allowed. Under § 81-1106 (c) (2), when work is proffered a worker who has been laid off it must be determined by the administrative agency whether the proffered work is new work. If so, the agency must take evidence on whether “the wages, hours, or other conditions of the work offered are substantially less favorable to the individual than those prevailing for similar work in the locality.” The conclusions of the administrative agency and the trial court were reached without any evidence being tendered on the over-all requirements of the cited section. The only evidence in the record on those issues is that claimant had a child-care problem. The standards which we have included in quotations have been described as “a basic minimum which all new work must meet.” Sanders, Disqualification for Unemployment Insurance, 8 Vand. L. Rev. 307 (1955). When an administrative agency fails to make a finding upon a pertinent issue of fact the courts do not decide the question in the first instance; the cause is remanded to the agency so a finding can be made on that issue. Reddick v. Scott, 217 Ark. 38, 228 S. W. 2d 1008 (1950).

We are not unmindful of our holding in Stover v. Deere, 249 Ark. 334, 461 S. W. 2d 393 (1970). There we said we would not remand because proof was allegedly lacking, or a material issue was not raised as to whether claimants had registered for work or were available for work during the week in question; nor would we remand because of a suggestion made in oral argument that the week in question might have been a waiting period during which the benefits were not payable. Red-dick and Stover are distinguishable. In Reddick (as well as in the case at hand) there was no fact finding on crucial issues, in the absence of which the litigation could not be resolved. The case at bar is parallel to Red-dick in that the board of review did not make a finding of fact on a material issue on evidence that was before them, but chose to rest its decision on another point. For that reason this cause is remanded to the circuit court with directions to remand to the board of review for findings upon the issues under § 81-1106 (c) (2).

Reversed and remanded.


text:
    ARK-HOMA FOODS, INC. v. Claude C. WARD, Jr. et al
    5-5683
    473 S.W. 2d 910
    Opinion delivered December 20, 1971

      Garner, Parker ir Garner, for appellant.

      Bethell, Callaway, King ér Robertson, for appellees.
   Lyle Brown, Justice.

This section was instituted by Ark-Homa Foods, Inc. against Claude C. Ward, Jr., and Frank A. Drum, a partnership doing business as Border City Ice and Cold Storage Company. When it became apparent from the pleadings and interrogatories that Ark-Homa Foods was not the proper party plaintiff, Ark-Homa moved to substitute its insurer as plaintiff. That motion was denied and the cause was dismissed. On appeal, Ark-Homa alleges error in denying its motion to substitute a party plaintiff and in dismissing the case.

On two occasions in the summer of 1966 a pipe in one of Border City’s freezing units ruptured and released a heavy concentration of ammonia. In both instances Ark-Homa Foods, which had stored substantial quantities of fruits and vegetables with Border City, suffered considerable losses. Ark-Homa brought this suit to recover damages. In answer to Border City’s interrogatories it was revealed that Ark-Homa’s insurance carrier had paid to Ark-Homa the full amount of both losses. Thereupon Ark-Homa Foods moved to substitute in its stead the name or names of the proper parties “whomever they may be” as plaintiff or plaintiffs in the case. The trial court denied the motion and dismissed the complaint on Border City’s motion. (It is apparent from the briefs on both sides that Ark-Homa wanted to substitute as plaintiff its insurer. The insurer could not have then brought a new action because of the statute of limitations.)

In order to determine whether the trial court acted properly, two issues must be resolved. The insured having been paid in full, (a) can the suit be prosecuted in the name of the insured for the benefit of the insurer, or (b) can the insured be substituted as plaintiff?

As to part (a) of the question we hold that the suit cannot be prosecuted in the name of Ark-Homa Foods. Our Ark. Stat. Ann. § 27-801 (Repl. 1962) provides: “Every action must be prosecuted in the name of the real party in interest, except as provided in sections 28 and 29 [§§ 27-804, 34-207].” We have held that where an insurance company only partially reimburses the insured, the latter is a real party in interest; the insured would be a proper but not a necessary party. McGeorge Contracting Co. v. Mizell, 216 Ark. 509, 226 S. W. 2d 566 (1950). The same rule holds true where the insured has a claim for personal injuries in addition to his insured property damages, the insurer having taken a subrogation agreement. Washington Fire & Marine Ins. Co. v. Hammett, 237 Ark. 954, 377 S. W. 2d 811 (1964). Also, we have held the insurer is a proper, but not a necessary, party where the insured is paid for the loss and executes a loan agreement to the insurer. Graysonia, Nashville and Ashdown RR. Co. v. Newberger Cotton Co., 170 Ark. 1039, 282 S. W. 975 (1926). Neither of those three cases is applicable to the facts before us. Ark-Homa Foods was fully reimbursed for its losses and there was no type of reservation. What clearly appears to be the majority rule in states having the “real party in interest” statute is stated in 157 ALR 1247 (1945):

As noted in the earlier annotation on the present subject, it has been held, under statutes requiring an action to be brought in the name of the real party in interest, that an insured who has been. paid in full for a loss by his insurer is not the real party in interest and cannot maintain an action in his (the insured’s) name against the tort-feasor causing the loss.

As to part (b) of the question — whether the insured can be substituted as plaintiff — our law is well established. Floyd Plant Food Co. v. Moore, 197 Ark. 259, 122 S. W. 2d 463 (1938); American Ry. Express Co. v. Reeves, 173 Ark. 273, 292 S. W. 109 (1927). Those cases stand for the proposition so well put by 8 ALR 2d 57 (1949):

It is well settled that where an action is brought in the name of a non-existing plaintiff, an amendment of complaint by substituting the proper party to the action as plaintiff will be regarded as the institution of a new action as regards the statute of limitations.

The attempt to substitute another party or parties for Ark-Homa Foods was more than three years after the insurers paid the losses. There is no doubt but that the three year statute of limitations had run. Ark. Stat. Ann. § 37-206 (Repl. 1962).

Affirmed.


author: John A. Fogleman, Justice.

text:
    J. H. SHAW v. Mary Gay SHAW
    5-5672
    473 S.W. 2d 848
    Opinion delivered December 20, 1971

      Tackett, Young, Patton ir Harrelson, for appellant.

      Harkness, Friedman ir Kusin, for appellee.
   John A. Fogleman, Justice.

Appellee filed a suit for divorce against appellant in Miller County, Arkansas, on June 12, 1970. In it she sought custody of their minor children. Appellant, appearing specially, demurred on the ground that an action between the parties involving the same subject matter was pending in Texas. This appeal was taken from the court’s refusal to order the appellee to deliver the children into the custody of their father, the appellant. Appellant contends that, by not doing so, the chancery court failed to give full faith and credit to a judgment in the Texas case awarding the custody to appellant. We cannot say that the court failed to give full faith and credit to the Texas decree, under the circumstances prevailing, so we affirm.

Appellee filed a suit for divorce in Brazoria County, Texas, on July 21, 1969. She then had custody of the three minor children involved and asked that permanent custody be awarded to her. She was awarded temporary custody in that action. This action was tried to a jury on January 12, 1970. In its verdict on interrogatories, the jury found that both parents were fit persons to have custody of the children, but that custody should be awarded to the father instead of the mother. A divorce was granted to appellant. The decree, based upon the jury verdict, was dated May 7, 1970. Appellee took an appeal which was never perfected.

On November 19, 1970, a hearing was had in the Chancery Court of Miller County. It was then suggested that appellee had given notice of appeal in the Texas case and that her motion for new trial had been overruled on August 24, 1970. Testimony was given that appellee had lived with her mother in Fouke since July 1969, that the children were all enrolled in school there, attended regularly and their grades were better than ever before, that appellant was substantially delinquent in the payment of child support granted in the Texas proceeding, and that appellant had made no attempt to visit his children. Mrs. Shaw, the appellee, was attending an adult education class studying to qualify as a medical records clerk. Mrs. Shaw’s mother had lived in the community for 32 years and was employed. It was stipulated that the home was adequate and that appellee was taking good care of the children. The court then took appellant’s demurrer under advisement until it was shown that a decree in the Texas case had become final. It awarded temporary custody of the children to appellee in the interim.

On September 28, 1970, appellee amended her petition to seek permanent custody of the children on the basis of changed circumstances. She alleged that the children had resided in Miller County for more than one year, that appellant had failed and refused to pay child support to the extent that arrearages of $3,000 had accumulated. She asserted that the welfare of the children would, best be served by their remaining with her in Arkansas.

Appellant’s petition that the chancery court give full faith and credit to the Texas decree was served on appellee on December 28, 1970. He alleged that appellee’s motion for new trial and amended motion for new trial had been overruled on June 4, 1970, and that appellee’s right of appeal had been foreclosed by her failure to file a bond for costs. At a hearing on this petition held February 1, 1971, appellant asked that the court direct the sheriff to deliver the children into his custody pursuant to the Texas decree. Appellee then directed the court’s attention to the fact that she had filed a petition in another proceeding which was then pending in the Chancery Court of Miller County, seeking custody of the children upon the basis of changed circumstances since the Texas decree was entered. She asked that the children be left in Arkansas until that petition was heard. The chancellor then sustained appellant’s demurrer and dismissed appellee’s original petition, but declined to order delivery of the children to appellant because of the new proceeding which he then consolidated with the original one when appellant requested that the pleadings be made a part of the record.

In the new proceeding filed January 14, 1971, she alleged appellant’s failure to pay support and medical bills for the children, their school attendance in Miller County, that they were under the care of local physicians, and her own ability to provide a proper home for them. She asserted that removal from the jurisdiction of the Miller Chancery Court would be detrimental to their welfare. She also alleged that appellant was unfit to have custody of the children.

Appellant contends that the trial court did not give full faith and credit to the Texas decree. He relies upon cases in which we have held that a decree of a court of a sister state is final upon conditions existing at the time of its rendition, citing Coder v. Coder, 226 Ark. 478, 290 S. W. 2d 628; Turner v. Dodge, 212 Ark. 991, 208 S. W. 2d 467; Hamilton v. Anderson, 176 Ark. 76, 2 S. W. 2d 673. However, this argument overlooks the effect of our holdings in those very cases, i.e., that the foreign decree is final, only on conditions existing at that time, but not res judicata where conditions and circumstances have changed since rendition of the original decree or where material facts existed at the time of the decree but were unknown to the foreign court, and the best interests of the child require modification. These holdings clearly permit modification of a foreign child custody decree upon the same terms upon which modification of a domestic decree may be made. In Tucker v. Turner, 195 Ark. 632, 113 S. W. 2d 508, cited in Turner v. Dodge, we said:

Foreign judgments could have no greater force and effect than the judgments of the courts of this state, acting within their jurisdiction. The judgment of a chancery court in this state, awarding the custody of an infant child to one of the parents, or to any other person, is a final judgment, from which an appeal lies, but it is not res judicata in the same or another court of this state involving the custody of the same child, where it is shown that the conditions under which the former decree was made have changed, and that the best interests of said child demand a reconsideration of said order or decree. If then, a former decree of a court of this state, involving the custody of a minor child, is not res judicata in a subsequent proceeding in the same or some other court of this state, how could it be said that a foreign judgment would be res judicata?

Appellant argues that since there was no evidence in the original Arkansas proceeding which would have justified a change in custody, the chancery court acted erroneously, and that no testimony has been adduced in the later proceeding, and no service obtained. He also asserts that it is obvious that no testimony indicating a change of circumstances warranting a change in custody can be adduced. We do not agree with these assertions. We have no means of knowing what testimony may be adduced when appellee’s petition is heard. The record discloses that warning order was published in the new proceeding and that an attorney ad litem was appointed for appellant.

The real question here turns upon whether the Miller Chancery Court was correct in holding that it- had jurisdiction to entertain appellee’s latest petition. According to Dr. Leflar, awards of custody in states other than the child’s domicile are constitutionally permissible even in the absence of personal jurisdiction over both parents. Leflar, American Conflicts Law 586, et. seq., § 245 (1968). He cites respectable authority to the effect that the presence of the child alone is sufficient if due process is not denied absent claimants. Dr. Leflar refers to the rule stated in Restatement of the Law. Restatement, Second, Conflict of Laws (1971), § 79 reads:

A state has power to exercise judicial jurisdiction to determine the custody, or to appoint a guardian, of the person of a child or adult
(a) who is domiciled in the state, or
(b) who is present in the state, or
(c) who is neither domiciled nor present in the state, if the controversy is between two or more persons who are personally subject to the jurisdiction of the state.

We find the reasoning in the accompanying Comments to be apt. Some of them are:

a. Rationale. The subject of jurisdiction over custody and guardianship is made complex by the different interests involved, and by the number of states which may be concerned. First, there is the welfare of the child, which is of paramount importance. Second, there is the interest of the state of the child’s domicil and, if he is absent from that state at the time of suit, there is the interest of the state where he happens to be physically present at the time. Third, there are the interests of those (normally the parents) who are disputing among themselves for the child’s custody.
The existence of these conflicting interests has given rise to three different bases of jurisdiction. One proceeds on ground that custody is a question of status and hence is subject to the control of the state where the child is domiciled. This basis is supported by the fact that usually the state of a child’s domicil is the one most deeply concerned with his welfare. A second jurisdictional basis is the presence of the child in the state. The state where the child is physically present has the most immediate concern with him; its courts also have direct access to the child and may be most qualified to decide what will best redound to his welfare. Finally, a state has power to determine a child’s custody or guardianship as between persons (normally the parents) who are competing for it and over whom it has personal jurisdiction. This jurisdictional basis places emphasis upon the interests of those who are seeking control over the child. It does not, however, lose sight of the child’s own welfare, since a court can better determine which of two parties is more fitted to have control over the child when it has both of them before it.
When all three bases of jurisdiction are found in a single state, that state may exercise jurisdiction to determine the child’s custody. So a state may determine a child’s custody if the state has personal jurisdiction over the contending parties and the child is both domiciled and physically present within its territory. Complexities arise, however, when these bases are divided. Statements are often to be found in the opinions that one or another of these bases must be regarded as exclusive and that no other one will do.
In point of fact, each of these bases of judicial jurisdiction provides a reasonable and suitable basis upon which a court may proceed in a proper case. The state in which the child is physically present must have power to take the necessary steps for his protection; the state which has personal jurisdiction over those competing for the custody provides a convenient forum in which to try the issue; and lastly the state of the child’s domicil will usually have the greatest concern with his welfare. As a result, there will be situations where three states have concurrent judicial jurisdiction: namely, the state of the child’s domicil, the state where he is physically present at the time of suit and the state which has personal jurisdiction over those (normally the parents) who are competing for his custody.
This is not to say, however, that a court which has jurisdiction on any one of these bases will necessarily entertain the suit. A court of the state of the child’s domicil will usually do so because of the obvious interest of this state in the child’s welfare. On the other hand, a court of a state where the child is only physically present at the time will refuse to entertain the action unless it believes this to be necessary for the best interests of the child. A suit may likewise be dismissed if the court has reason to believe that its decree would not be effective as might be the case if both the child and the defendant parent are in another state.

In cases discussing the three different jurisdictional bases, other courts have supported the quoted Restatement position on the basis that any state which has a sufficient social interest in the welfare of a child has jurisdiction in custody matters, even though.jurisdiction may exist in two or more states simultaneously. See, e.g., Casteel v. Casteel, 45 N. J. Super. 338, 132 A. 2d 529 (1957); Wallace v. Wallace, 63 N. M. 414, 320 P. 2d 1020 (1958); Sampsell v. Superior Court, 32 Cal. 2d 763, 197 P. 2d 739 (1948). The language of Mr. Justice Tray-nor in Sampsell seems particularly applicable. He said:

In the interest of the child, there is no reason why the state where the child is actually living may not have jurisdiction to act to protect the child’s welfare, and there is likewise no reason why other states should not also have jurisdiction.
# # #
Thus, if the child is living in one state but is domiciled in another, the courts of both states may have jurisdiction over the question of its custody. It does not follow, however, that the courts of both states will exercise that jurisdiction and reach conflicting results. The courts of one state may determine that the other state has a more substantial interest in the child and leave the matter to be settled there. On the other hand, if the jurisdiction of one state has been exercised over the child, there is no reason why, if the welfare of the particular child is a matter of real concern to the courts of another state, those courts may not also have jurisdiction, which might be exercised in the interest of the child “with respectful consideration to the prior determination of other courts similarly situated.” Stansbury, 10 Law and Contemp. Problems, supra at 830-831. See Foster v. Foster, 8 Cal. 2d 719, 726, 68 P. 2d 719; Titcomb v. Superior Court, supra, 220 Cal. 34, 39, 29 P. 2d 206. In any event, there is no reason why courts of one state should not be able to “assume with confidence that the courts of the other jurisdiction will act with wisdom and sincerity in all matters pertaining to the welfare of this child.” Miller v. Schneider, Tex. Civ. App., 170 S. W. 2d 301, 303.
The problem is not one of rendering custody decrees for the courts of other states to regard as final and conclusive determinations. Indeed such decrees are not given conclusive effect in our own courts, ***.

We hold that physical presence of the children in this state is a proper basis for the exercise of jurisdiction by the Miller Chancery Court to determine whether there should be a change in custody of the children involved. The fact that the decree of that court might not be accorded extraterritorial effect should not limit the power of the courts of this state to act for the best welfare of children physically present within their territorial jurisdiction and to treat them as its wards, at least when their presence is not purely transient. See Keneipp v. Phillips, 210 Ark. 264, 196 S. W. 2d 220; Pope v. Pope, 239 Ark. 352, 389 S. W. 2d 425; Tucker v. Turner, 195 Ark. 632, 113 S. W. 2d 508. The General Assembly has clearly made a policy determination which supports this view. A guardian who would have custody of a minor may be appointed by the probate court of a county in which he resides, even though he may be domiciled elsewhere. Ark. Stat. Ann. §§ 57-601, 606, 620, 625 (Supp. 1969). This statutory determination can only be based on the premise that this state has such an interest in the welfare of a minor living within its borders that its courts should take such action as may be necessary to provide for its best welfare.

Since the chancery court had jurisdiction to act upon appellee’s petition, its decree denying immediate delivery of the children to appellant is affirmed.

Byrd, J., dissents.

      The current rule is all the more persuasive because it represents a complete “about-face” from the former rule which eliminated all jurisdiction-fixing factors except domicile of the child. Restatement, Conflict of Laws (1934) 177, § 117. The change seems to have resulted from the frequent judicial rejection of the earlier Restatement rule. (Footnote ours.)


text:
    OAK LAWN FARMS et al v. Louis H. PAYNE
    5-5763
    474 S.W. 2d 408
    Opinion delivered December 20, 1971

      Riddick Riffel, for appellants.

      Reinberger, Eilbott, Smith ir Staten, for appellee.
   John A. Fogleman, Justice.

The circuit court reversed the Workmen’s Compensation Commission findings that appellee had not met requirements 2 and 3 of Ark. Stat. Ann. § 814313(e) (Repl. 1960) and that his claim of disability on account of a hernia was noncompensable. Since we find substantial evidence to support the commission’s findings, we reverse the circuit court judgment.

Appellee was employed as a route salesman for appellant Oak Lawn Farms, Inc. He drove a truck from Pine Bluff to Clarendon delivering poultry products to retail outlets. On May 21, 1970, at about 4:00 p.m. he experienced a twisting type of pain while lifting a box of packed chickens at Stuttgart. Thereafter, he continued his route to Clarendon and returned to Pine Bluff.

Payne testified that when he picked up the 95-pound box of chickens and twisted to drop it to the floor, he experienced pain. His description was:

I had a severe pain, not a severe, but a pain, a soreness pain that I thought that I had strained myself.

Thereafter, he went to Clarendon where he did some unloading and felt a continuation of the pain, “strain, hurt and soreness.” He said that at the time he thought he had just strained himself, and the pain did ease up until he again noticed it at Clarendon. He then drove his truck home. While at home, he realized that something was wrong because he experienced soreness and swelling below the beltline on his left-hand side. The next morning he got up and went to work at 6:00 a.m., but did not do any lifting because He picked up a helper who regularly assisted him on that day each week. He returned from his route at about 5:00 p.m. and reported his experience to his supervisor. Payne then went to his physician, Dr. Reid, who advised him that he had a small Hernia which might heal in about two weeks if he returned to work. Payne did as the physician advised, but had a helper to load and unload his truck every day, rather than the customary one day per week. After this time, the doctor found surgery necessary. Although appellee’s pain had been confined to the left side, the surgeon checked and found that both sides needed repair.

Payne admitted having told a Mr. Stackhouse, a representative of the company, who called upon him to inquire about his claim, that he didn’t have any severe pain. He also admitted that it was possible that he told Stackhouse that he didn’t have any pain at all.

It is easy to see that the commission could reasonably conclude that there was not severe pain in- the hernial region from appellee’s own description of it. We cannot say that there was no substantial evidence from which the commission might have found that the pain did not cause appellee to cease work immediately, particularly in view of his physician’s directing him to return to work. '»• .

Appellee argues vigorously that the commission’s findings and construction of the Workmen’s Compensation Act penalize those claimants with a-high pain threshold, those who are candid and sincere in their testimony, those who are not either a gifted linguist, a professional, malingerer, a hypochondriac- or a memorizer of statutory words, and those who have- a high sense of responsibility to the employer’s interests. We agree that appellee is to be commended for his. honesty and candor and high sense of responsibility, but the weight, to be accorded his testimony and the inferences to be drawn from it were to be considered by the commission and are not for de novo determination by the, courts. See Stout Construction Co. v. Wells, 214 Ark. 741, 217 S. W. 2d 841; Wilson v. U.A.W., 246 Ark. 1158, 441 S. W. 2d 475; International Paper Co. v. Tidwell, 250 Ark. 623 (1971), 465 S. W. 2d 691, to require more strict com-248 Ark. 661, 453 S. W. 2d 43; J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82.

Appellee also makes an impassioned plea that we reverse what he perceives as a trend in our decisions in Harkleroad v. Cotter, 248 Ark. 810, 454 S. W. 2d 76, and Lashlee Steel Company v. Dodridge, 250 Ark. 520 (1971), 465 S. W. 2d 691, to require more strict compliance by a claimant with the five statutory requirements than we have in the past. We do not so interpret these decisions. We take them to be a direct recognition of a policy determination first made by the people in the adoption of the act and respected by the legislative branch of the government in not changing - this section. This determination was that, because of the uncertainty inherent in determining which of the many possible causes may have actually produced a hernia, only those which occurred dramatically should be compensable so that there will be little doubt that they are within the course of the employment and are the immediate result of a sudden effort, severe strain or force applied to the abdominal wall. The legislative intent may have been to keep the required coverage from becoming hernia insurance. We declined in Harkleroad to invade what we considered to be the legislátive province, and still do, without any suggestion that legislative action is or is not appropriate.

It is just as important that the judiciary respect the province of the Workmen’s Compensation Commission as it is that we observe the boundary between the legislative and judicial departments of government. For that reason, we must continue to determine whether reasonable minds could reach the conclusion reached by the commission, not whether the evidence would have supported another conclusion, or even whether the preponderance indicated a different result. Wilson Lumber Co. v. Hughes, 245 Ark. 168, 431 S. W. 2d 487; J. L. Williams & Sons v. Smith, supra. For these reasons, we must reverse the judgment of the circuit court.

Chief Justice Harris, not participating.


text:
    Lester Earl RIMES v. STATE of Arkansas
    5658
    474 S.W. 2d 115
    Opinion delivered December 20, 1971

      William C. McArthur, for appellant.

      Ray Thornton, Attorney General; John D. Bridgfor'th, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Appellant argues two points for reversal of his sentence under the habitual criminal act. We affirm because we find no merit in either contention.

Appellant’s initial contention is that the circuit court followed an erroneous procedure in permitting the jury to first consider only the question of his guilt or innocence of the crime for which he was on trial, and, after finding him guilty, to determine his sentence only after hearing evidence of previous convictions. He relies upon Miller v. State, 239 Ark. 836, 394 S. W. 2d 601, decided October 18, 1965, which prescribed a different procedure. The General Assembly promptly changed that procedure by Act 639 of 1967 [see Ark. Stat. Ann. § 43-2330.1 (Supp. 1969)]. We have held that the procedure followed in this case was proper and in accord with this statute. Ridgeway v. State, 251 Ark. 157 (1971), 472 S. W. 2d 108.

Appellant then urges that the circuit court erroneously admitted evidence of previous convictions because the authentication certificate relating to records of alleged previous convictions identified the person convicted as Lester Ease Rimes while he was charged in this case as Lester Earl Rimes. The circuit judge stated that the records accompanying the questioned authentication certificates showed that the judgments of conviction were against Lester Earl Rimes.

We find no reversible error in the admission of this evidence, under these circumstances. This court has held that insertion or omission of a middle initial is immaterial and that a wrong letter may be stricken or disregarded, because the law knows but one Christian name. State v. Smith, 12 Ark. 622, 56 Am. Dec. 287. While this rule has been held inapplicable where an initial only is used in lieu of the first or Christian name, particularly where there are other persons in the area who have similar names, its efficacy has not otherwise been questioned. See Garner v. Cluck, 209 Ark. 912, 193 S. W. 2d 661.

Courts ordinarily apply the principle that a middle name or initial is immaterial unless a material issue of identity is raised. See Annot., 15 A. L. R. 3d 968, 974 (1967). Identity of name is prima facie evidence of identity of person, but if appellant was not the person referred to in the record introduced, he was free to offer evidence to that effect. Higgins v. State, 235 Ark. 153, 357 S. W. 2d 499. Since he did not do so, we cannot say that the evidence of these convictions was not sufficient to support the jury’s finding. Henson v. State, 248 Ark. 992, 455 S. W. 2d 101.

The judgment is affirmed.