author: Ed. P. McFaddin, Associate Justice.

text:
    Bray v. Willey.
    5-3645
    395 S. W. 2d 342
    Opinion delivered October 25, 1965.
    [Rehearing denied November 29, 1965.]

      Terral, Rawlings d> Matthews and John I. Purtle, for appellant.
    No brief filed for Appellee.
   Ed. P. McFaddin, Associate Justice.

This is a garnishment case; and the issue is the alleged liability of the garnishee to the judgment plaintiff. Although the amount here involved is very small in monetary value, the legal principles are so important that much time has been spent in research.

On January 10, 1963, appellant Bray recovered a damage judgment against Dave Haneline for $215.97. On January 25, 1963 Bray caused a writ of garnishment after judgment (Ark. Stat. Ann. § 31-501 et seq. [Repl. 1962]) to be served on Ed Willey & Son (hereinafter sometimes referred to as “garnishee” or as “Appellee”). On January 31, 1963 the garnishee filed answer to the interrogatories, stating that the garnishee was not indebted to the defendant on and after the service of the writ of garnishment. Shortly thereafter the garnishee paid the defendant $34.35. On February 8, 1963 Bray controverted and denied the correctness of the answer of the garnishee, claiming that the garnishee had been indebted to Dave Haneline. Trial to the Court on February 10, 1965 resulted in a judgment discharging the garnishee; and from that judgment Bray prosecutes this appeal, relying on one point:

“That the Court erred in discharging the garnishee.”

The evidence,, viewed in the light most favorable to the judgment, as is our rule in law cases, discloses: that some time prior to the writ of garnishment Haneline had borrowed $75.00 from Willey, and was “working it out”; that on January 25, 1963 when the writ of garnishment was served, Haneline was actually indebted to Willey for $75.00 for a bona fide debt; and that after Willey filed his answer on January 31, 1963 he let Haneline have $34.35 for living expenses. It is this payment of $34.35 that gives rise to this appeal. It is not claimed that there was any collusion or fraud between Haneline and Willey to cover up assets in order to defeat Bray’s judgment. It is a simple question of whether Willey had a right to deliver to Haneline $34.35 after the service of the writ of garnishment. Appellant insists that when the writ of garnishment was served on Willey, such service determined the status of the parties; and that Willey could not pay any amount of money to Haneline after that date; and appellant cites, inter alia, Harris v. Harris, 201 Ark. 684, 146 S. W. 2d 539.

Our cases hold with practical unanimity that if the garnishee makes any payment to the defendant after the service of the writ of garnishment he does so at his own peril. Adams v. Penzell, 40 Ark. 531; Hockaday v. Warmack, 121 Ark. 518, 182 S. W. 263; Fox v. Pinson, 172 Ark. 839, 81 S. W. 2d 833; and Harris v. Harris, 201 Ark. 684, 146 S. W. 2d 539. The authorities generally also recognize the right of offset; that is, if the defendant is indebted to the garnishee for some amount and the garnishee has in his hands any goods, credits, or money belonging to the defendant, then the garnishee can keep enough of same to satisfy his claim against the defendant. In 38 C. J. S. p. 409, “Garnishment” § 183, the holdings are summarized:

“A garnishment lien or right is subject to equities and demands existing in favor of the garnishee at the time the lien or right attached, but is superior to claims which came into existence thereafter.”

Likewise, in 6 Am. Jur. 2d p. 873, “Attachment and Garnishment” § 449, the holdings are summarized:

‘ ‘ As a general rule, a garnishee cannot be placed in any worse condition than he would be if the defendant’s claim against him were enforced by the defendant himself, except in cases of fraud and collusion between the defendant and the garnishee. Consequently, the liability, legal and equitable, of the garnishee to the defendant, or the property of the defendant in his possession, is a measure of his liability to the plaintiff, and the plaintiff can have no greater right against the garnishee than the defendant.”

We recognize all of these rules; but the question here is whether Willey has become liable to Bray for $34.35, which he could have offset against Haneline’s indebtedness to him. Again we emphasize that there is no evidence or indication of fraud or collusion between Willey and Haneline to defeat Bray’s judgment. If there had been, what we hereafter hold would not apply.

In view of what we have said, we therefore hold: that when Willey was garnished he had a right to offset $34.35 that he owed Haneline on the $75.00 debt that Haneline owed Willey. So when Willey paid Haneline $34.35 then as far as Bray was concerned, the debt of Haneline to Willey was reduced in that amount. If Willey had ever paid Haneline or credited to his account, more than $75.00, then for such excess over the $75.00 bona fide indebtedness Willey would have been liable to Bray. This is all in the absence of fraud or collusion. The situation here is not like that which existed in Mabry v. Manney, 190 Ark. 154, 77 S. W. 2d 978. We emphasize again that the record here shows a bona fide indebtedness of $75.00 due from Haneline to Willey, and only $34.35 due by Willey to Haneline for service rendered. The payment of $34.35 could not be in addition to same credit on the note, but was the full amount due by Willey to Haneline.

We adhere to our rule that whenever the writ of garnishment is served, any moneys, credits, goods, or effects, in the hands of the garnishee due the defendant must be reported to the Court, and if any such is surrendered by the garnishee to the defendant, such surrender is at the peril of the garnishee. But, here, all such surrender was less than the indebtedness the defendant owed the garnishee; so the judgment rendered by the Court in this case was correct.

Affirmed.

       Indicative of the research this ease has required, we call attention to the following cases, and/or notes: Coward v. Barnes, 232 Ark. 177, 334 S. W. 2d 894; Gossett v. Merchants Bank, 235 Ark. 665, 361 S. W. 2d 537; Day v. Bank of Del Norte (Colo.), 230 P. 785; Ralston v. King (Mo. App.), 101 S. W. 2d 734; Jacobs v. So. Bell Tel. Co. (Ga. App.), 193 S. E. 487; Orleans Mfg. Co. v. Hinkley (Tex. App.) 61 S. W. 2d 865; Russell v. Fred Pohl Co. (N. J.), 80 A. 2d 191; Paisley v. Park, 222 Ill. App. 96; Poncher v. Mohawk, 224 Ill. App. 218; Wunderlich v. Merchants Bank (Minn.), 18 Ann. Cas. 212, and case note following opinion; Wunderlich v. Merchants Bank (Min.), 27 L.R.N.S. 811 and case note following opinion.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Willingham v. Southern Rendering Co.
    5-3658
    394 S. W. 2d 727
    Opinion delivered October 25, 1965.

      Wood, Ghesnutt & Smith, for appellant.

      Wootton, Land & Matthews, for appellee.
   George Rose Smith, J.

The appellant’s wife and two foster children were killed in a head-on collision on 'the afternoon 'of November 15, 1961. This action for wrongful death and property damage was brought by the appellant, as an individual and as administrator of the three estates, against the owner and the driver of the tractor and tank trailer that collided with the Willingham car. The trial court directed a verdict in favor of the defendants. The question here is whether there was substantial evidence of negligence on the part of the defendant driver, Milton W. Winfrey.

Winfrey was the only survivor of the collision and thus was the only available eyewitness. He had delivered a tankful of tallow to Nashville, Arkansas, and was returning to Little Rock when the tragedy occurred. He testified that when he first saw the other vehicle it was coming toward him at great speed on the wrong side of the highway. Winfrey estimated his own speed at 40 or 45 miles an hour. The highway was wet. Winfrey says that he first applied only his trailer brakes and then applied his tractor brakes as well. He drove his rig completely off the pavement and onto the right-hand shoulder, but the Willingham car, out of control, carreened back and forth across the highway and was skidding sidewise down the shoulder when the collision took place. Winfrey estimated his speed at 10 or 15 miles an hour at the moment of impact.

The complaint alleged, among other things, that the tractor-trailer had defective brakes and that it was being driven at an escesive speed. We are of the opinion that there was substantial evidence to support both allegations.

Compressed air was used both to operate the trailer brakes and to empty the tank of tallow. There is proof that the two systems were so connected that it was possible for tallow to leak into the brake lines. There is also positive and disinterested testimony that when the trailer was repaired after the accident the mechanics removed two gallons of tallow from the brake system. The jury could have found that the compressed air hoses in the braking mechanism were so obstructed by tallow that the trailer brakes were ineffective.

There is also evidence to support an inference that the tractor-trailer was traveling much too fast at the moment of its collision with the Willingham car. Despite the speed at which the car was assertedly traveling it was pushed backward for fifty-five feet from the point of impact. Moreover, several photographs indicate that Winfrey’s 24,000-pound rig must have run over the automobile with inordinate force, for the body of the vehicle was so crushed that it was apparently only about a yard in height after the collision.

One of the children who were killed was four years old; the other was two. Any negligence on the part of Mrs. Willingham could not be imputed to them. Stockton v. Baker, 213 Ark. 918, 213 S. W. 2d 896 (1948); Lockhart v. Ross. 191 Ark. 743, 87 S. W. 2d 73 (1935). With respect to Willingham’s claim for the destruction of the automobile it may also be true that his wife’s negligence would not be imputable to him. Mullally v. Carvill, 234 Ark. 1041, 356 S. W. 2d 238 (1962). Hence, as far as these causes of action are concerned, it was enough for the plaintiff to adduce some substantial evidence of negligence in the defendants. From what we have already said it is plain that the proof presented issues of fact for the jury.

A more difficult question is raised with respect to Mrs. Willingham’s own comparative negligence as a proximate cause of her death. Ordinarily the matter of comparing the negligence of the two persons concerned is within the province of the jury. Wood v. Combs, 237 Ark. 738, 375 S. W. 2d 800 (1964). When, as here, one of the drivers is the only survivor of the collision, the plaintiff necessarily labors under great difficulty in his effort to prove that the defendant driver’s negligence exceeded that of the plaintiff’s intestate. Here, as we have seen, the plaintiff succeeded in proving that Winfrey may have been at fault in at least two particulars. In this situation we are reluctant to declare as a matter of law that Mrs. Willingham’s negligence was greater than Winfrey’s. The jury had the great advantage of observing Winfrey’s demeanor as he testified. We are of the opinion that the comparative negligence on the part of Mrs. Willingham and of Winfrey was a matter for the jury to decide.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Goforth v. Eads
    5-3653
    394 S. W. 2d 728
    Opinion delivered October 25, 1965.

      ILout, Thaxton & Hout, for appellant.

      Hoclges & Hodges, for appellee.
   Paul Ward, Associate Justice.

This litigation is the result of a dispute over the ownership of residential property in the City of Newport.

On May 30, 1959 appellant, Clara Andrews Goforth (referred to as “vendor”) executed a contract to convey the property to Mr. and Mrs. Eads (referred to as “purchasers”) for the price of $2,000, to be paid as follows: $50 per month for ten consecutive months beginning June 1st, 1959 and the balance payable thereafter at $25 per month.

The contract contained in essence the following additional pertinent provisions: (a) If the purchasers be in default it is agreed that the vendor shall retain the cash payments as liquidated damages, and the contract shall thenceforth be at an end; (b) If purchasers fail to pay any installment the entire debt, at the option of the vendor, may be declared to be immediately due and payable; (c) The purchasers were to have possession “not later than May 30, 1959,” and; (d) The purchasers were obligated to pay all taxes, pay for $1500. in insurance, and to keep the premises in good repair.

Mr. and Mrs. Eads promptly took possession of the property, but the $25 payments due on the first of October and November and December 1963 became delinquent. On December 28, 1963 the Eads executed a quit-claim deed conveying the property to Mr. and Mrs. Staton, who helped the Eads to make the delinquent payments and who have paid, or rather have attempted to pay, all accruing payments due appellant since that time.

On February 6, 1964 appellant filed a complaint in chancery court against Mr. and Mrs. Eads and Mr. and Mrs. Staton (appellees herein) alleging in substance: (a) On December 1963 Mr. and Mrs. Eads were in default; (b) She then declared the contract terminated and at an end; (c) The Eads abandoned the property, and Mrs. Eads signed a statement relinquishing all rights therein; (d) The Eads, without any interest in the property, conveyed it by quit-claim deed to Mr. and Mrs. Staton who forceably entered and took possession of the premises without her knowledge or consent, and; she has demanded possession of the property without success. The prayer was that the deed to the Statons be cancelled; that the sales contract be declared null and void, and that she be declared to have a clear title to the property. The issues raised by the complaint were properly controverted by appellees, and the cause was transferred to the circuit court for trial.

The trial judge (on exchange) who, by agreement, presided as a jury, made in substance the following findings: (a) The Eads did not surrender possession of the property to appellant; (b) Appellant waived the default payments; (c) The Eads made a bonafide effort to keep up the payments, and; (d) the Statons were entitled to the title and possession of the property.

For a reversal appellant relies on four separate points, but, in view of the decision we have reached, it becomes necessary to consider only the first three.

One. It is first contended that after the last three payments due in 1963 became delinquent, the Eads surrendered possession of the house. The findings of this disputed fact, resolved by the trial court against appellant, is, we think, supported by substantial evidence. Although appellant testified to the effect that Mrs. Eads said they were giving up the contract and surrendering possession of the property, and although the Eads concede they moved to an apartment, this testimony is contradicted and explained. Mrs. Eads testified:

“Q. At the time you sold this property to Mr. and Mrs. Staton did you have any possessions in the house itself?
££A. We had some furniture in there.
“Q. Did you have it under lock and key?
“A. Yes, Sii'.
‘£ Q. Who was carrying the key?
££A. I was.
££Q. After you sold to Mr. and Mrs. Staton what did you do with the key?
££A. I gave the key to Mr. Staton.
££Q. Did you then finally turn possession over to them?
££A. Yes, Sir.

Mr. Eads testified:

£ £ Q. At the time that you sold this property to Mr. and Mrs. Staton, did you and your wife still have this property under lock and key?
££A. Yes. Sir.
“Q. And yon had the key to the lock, is that right?
“A. That’s right, yes.
‘ ‘ Q. Yon and your wife had not given up possession of this house then at that time, had you?
“A. No, we did not.
“Q. And did you and your wife still have some property in the house under that lock and key?
“A. We did.”

Since the trial judge sat as a jury we must of course give his findings the same weight as the findings of a jury, and must approve them if they are supported by substantial evidence. In this instance there was substantial evidence to show the Eads had not surrendered possession of the house.

Tioo. Next, appellant says the trial court erred in finding that she waived the default payments, but we 'cannot agree. The contract provided that appellant had a right to declare the contract to “he at an end” if the purchasers became delinquent. However, she was not compelled to exercise that right. The undisputed testimony shows that Eads had previously been in default many times due to illness and other causes, hut no forfeiture was declared. On the occasion in question here, according to the Eads, appellant offered to take $100 and reinstate the contract, and that this offer was accepted. This testimony was disputed by appellant. It would vserve no useful purpose to set out all the testimony hearing on the question of waiver, because, as stated previously, the finding of the trial court on this question must he affirmed if supported by substantial evidence. Set out below is an excerpt from the testimony of Mr. Staton:

“Q. Did she (appellant) ever discuss with you the delinquent payments and whether or not she would accept the• delinquent payments?
“A. The second time, yes, Sir, she did.
“Q. What did she say at that time?
“A. She said they were behind a hundred dollars; said, ‘I told them if they would give me a hundred dollars that I would let them continue with the payments. ’
“ Q. Can you place that in time with relation to the date that you bought the property?
“A. It was the day before the contract was made.
“Q. In other words, the contract was made on the 28th day of December.
“A. Yes, Sir.
“Q. And she said that to you on the 27th day of December.
“A. Yes, Sir, she did.”

Three. Finally, it is contended that the “Eads had no interest in the real property in question at the time of the attempted sale to “the Statons.” To support the above it is stated that “the Eads” interest in the real property was terminated by appellant, Goforth. . . .,” meaning of course the sales contract was void because appellant did not waive the default payments. This issue however has already been resolved against appellant by what we have previously said and held.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Still v. Still
    5-3600
    394 S. W. 2d 733
    Opinion delivered October 25, 1965.

      J. Loyd Shoiose, for appellant.

      Kenneth R. Smith, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Andrew Still, is the owner of a small farm in Searcy County, lying immediately south and adjacent to the Marion-Searcy County line. The appellee, Archie Still, owns 60 acres immediately north and adjacent to the Marion-Searcy County line and directly across from appellant’s farm. In 1944, appellant, along with Roy Still, the then owner of - appellee’s property, caused a survey to he made in order to establish the true location of the Marion-Searcy County line. At the completion of the survey, fences were erected along the boundaries set out by the surveyor. Upon their agreement, however, Roy Still permitted appellant to erect a fence which deviated from the boundary so as to include about 114 acre of the Marion County land within appellant’s fences. This was done in order to keep Roy Still’s cattle away from appellant’s home and barn and away from appellant’s cattle.

Appellee, Archie Still, acquired the Marion County tract in 1961. Since that time he and appellant, Andrew Still, have continually disagreed as to the ownership of the l1/! acre tract. Appellee finally filed suit for its possession in the Marion.County Circuit Court. The cause was removed to equity, which court confirmed title in appellee, subject only to an easement in favor of appellant extending from appellant’s home and property to the county road. Since no cross-appeal was taken as to the Chancellor’s finding regarding the easement, the only question before this court is whether the Chancellor’s finding that appellant’s possession of the land was permissive and not adverse, is against the preponderance of the evidence.

Appellant relies on his original agreement with Roy Still and his subsequent use of the land for the required statutory period in order to establish title by adverse possession. We agree with the court below that no such title was established here. The testimony of several witnesses, along with the testimony of appellant himself, clearly indicates that appellant’s possession was permissive. When asked to relate the basis of his agreement with Roy Still, appellant testified: “. . . when I would go to feed my stock, his stock would come over and give me lots of trouble and he gave me permission to build the fence there for both our conveniences.” Appellant’s wife testified: “... we have it in our possession to use, that was the agreement.” Appellant’s uncle, Charlie Still, telling about his recollection of the agreement stated that: “He gave him permission to use that land, that is all.” It is well settled that the holding of land by permission can not ripen into an adverse or hostile right until notice is brought home to the owner and holding has continued thereafter for the statutory period. Fry v. Grismore-Hyman Co., 151 Ark. 44, 235 S. W. 373; Fulcher v. Dierks Lumber & Coal Co., 164 Ark. 261, 261 S. W. 645; Harp v. Christian, 215 Ark. 833, 223 S. W. 2d 778; Bailey, Trustee v. Martin, 218 Ark. 513, 237 S. W. 2d 16. A preponderance of the evidence does not show that appellant ever brought home such notice to Roy Still, or any other holder of record title. Appellant asserts that at one time in 1955 he forced appellee off the property, but the record shows that appellee did not acquire title until 1961.

The preponderance of the evidence supports the conclusions of the Chancellor that appellant’s possession was permissive and not adverse. The decree is accordingly affirmed.


author: Jim Johnson, Associate Justice.

text:
    Gilliam v. Gilliam
    5-3450
    394 S. W. 2d 725
    Opinion delivered October 25, 1965.

      Willis V. Lewis, for appellant.
    No brief filed for Appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a divorce decree. Appellee Sarah J. Gilliam filed suit for separate maintenance in Pulaski Chancery Court against appellant Claude E. Gilliam in 1959. Appellant cross-complained for divorce. The trial court denied the divorce, granted appellee’s petition for separate maintenance and awarded her $250.00 per month permanent alimony. This decree was affirmed by this court in 1960. Gilliam v. Gilliam, 232 Ark. 765, 340 S. W. 2d 272.

In October, 1961, appellee filed an amendment to the complaint in her separate maintenance suit, seeking a divorce. In November appellant filed suit (a separate suit) in Pulaski Chancery for divorce on several grounds and in October, 1962, amended his complaint to include the ground of three years separation. Eventually these cases were consolidated. After a number of motions and hearings (including one in which appellant obtained a reduction of the alimony to $150 on the allegation that he had been discharged from the Air Force and deliberately withheld the fact that he had applied for reinstatement and was within a month reinstated and promoted in rank), the chancellor in June, 1964, granted the divorce and. awarded appellee $200 per month permanent alimony, inter alia.

For reversal appellant argues a number of points concerned with the findings and awards of the trial court. Appellant’s conduct before the trial court entitles him to no relief on the matter of alimony. The trial court was subjected to harrassment, embarrassment and chicanery at the hands of appellant, and at least lack of cooperation from appellee. Our sympathies in this case lie with the judge. The trial court’s findings are careful, extensive and objective, and the awards are generally well supported by the evidence. However, on trial de novo on the record, there is one point urged by appellant with which we are forced to agree. The court’s finding that no partnership in a real estate agency existed between the parties is against the preponderance of the evidence. Testimony of both parties shows that in 1956, after the parties had moved to Little Bock from Texas, they took the real estate broker’s examination. Appellant passed and was licensed as a broker; appellee failed and was licensed as a salesman. (Appellee testified that appellant had studied real estate, including real estate appraisal, at T. C. IT. on the GI bill.) The real estate agency was opened on appellant’s broker’s license and appellee obviously ran the business and did the bulk of the work. It is also clear from testimony of the parties and four salesmen that appellant worked regularly in the business, hired and trained some of the salesmen, appraised property and assisted in the operation of the business. The agency purchased property and sold it; title to much of the property was taken in appellee’s name since appellant’s duties in the Air Force required his periodic absence. "When appellant was sent to. Japan he gave appellee his power of attorney, a forceful argument for the de facto existence of a partnership. Throughout the litigation, appellee contended that the property purchased in her name was her property alone, however at one point she testified: “I thought, I thought all of this property would be mine and Gil’s [appellant] and not mine alone and not Gil’s alone. We planned for him to take over this business at his retirement. ’ ’

Since it is not clear from the record what the assets of the partnership amounted to at the time of the 1959 divorce a mensa et thoro, that is, property, notes and other choses in action, the cause is reversed and remanded for determination and division of partnership assets.


author: Prank Holt, Associate Justice.

text:
    Cheney v. St. Louis Southwestern Railway Co.
    5-3596
    394 S. W. 2d 731
    Opinion delivered October 25, 1965.

      Lyle Williams and Tom Tanner, for appellant.

      Smith, Williams, Friday & Bowen, for appellee.
   Prank Holt, Associate Justice.

This action tests the validity of an income tax statute. The appellee, engaged in interstate rail transporation, filed its 1962 income tax return with appellant. Appellee computed its income tax liability ($338,673.78) pursuant to Act No. 413 of 1961, § 1 and §§ 3 — 19 inclusive [Ark. Stat. Ann. § 84-2055 and §§ 84-2057 — 2073 (Repl. 1960) and Act No. 118 of the Acts of 1929, § 15, as amended, § 84-2020]. Appellant contends that appellee’s taxable income should have been computed pursuant to the provisions of Arkansas Acts of 1929, No. 118, § 3 (e), Ark. Stat. Ann. § 84-2003 (e) and, therefore, a deficiency of $41,546.76 exists. Appellant and appellee agree that their respective mathematical computations are correct. In other words, appellant and appellee disagree as to which statute governs appellee’s income tax liability. Appellee asserts that § 84-2003 (e) is unconstitutional and the trial court sustained appellee’s contention.

On appeal the appellant first contends for reversal that the trial court erred in holding that § 84-2003 (e) is unconstitutional in that it delegates legislative power • to the federal government contrary to and in violation of Article 5, § 1, as amended by Amendment #7 and Article 4, §§ 1 and 2 of the Constitution of the State of Arkansas. We think the chancellor was correct.

It is agreed that: “The statute relied upon by the Defendant for the assertion of the deficiency was enacted as part of the Income Tax Law of 1929. The particular section of the 1929 Acts has not been amended. The statute, in general, provides that the income taxable in Arkansas of any corporation engaged in the business of operating a steam or electric railroad, express service, telephone or telegraph business, or other such forms of public service, shall.be a proportionate part of the corporation’s gross revenues, deducting therefrom a proportionate part of all deductions. The revenues, deductions and the allocations thereof are to be determined under the Interstate Commerce Act pursuant to the Interstate Commerce Commission’s standard classification of accounts.” This standard classification of accounts is a system promulgated by the Interstate Commerce Commission in which various account headings are designated for use by interstate carriers to assure uniformity in reporting for ratefixing purposes and not income tax purposes. Paragraph 3 of § 20 of the Interstate Commerce Act gives the Interstate Commerce Commission discretionary authority to prescribe this uniform standard classification of accounts applicable to appellant. Pursuant to this authority and by congressional enactment many changes have been made due to business operations and advances in technology. The changes have affected the Interstate Commerce Commission’s determination of “net income” for their rate-fixing purposes.

The tax deficiency here assessed by the appellant against the appellee was determined under the 1962 or the then current standard classification of accounts and not the standard that existed in 1928. This cannot be done since it in in effect surrenders to a federal agency the responsibility of determining for Arkansas the “net income” of appellee. This is a fluid formula since the standard varies as the Interstate Commerce Commission sees fit to make changes for its rate-making purposes. Thus, appellee’s tax liability to Arkansas is based upon a formula subject to prospective federal legislation or administrative rules. It is unconstitutional. Crowly v. Thornbrough, 226 Ark. 768, 294 S. W. 2d 62. There we disapproved a statute which provided that minimum wages to be paid must be predicated upon the minimum wages determined by the Secretary of Labor of the United States.

In the case at bar, as in Crowly v. Thornbrough, supra, the state retains no control over the future action of a federal agency. Section 84-2003 (e) in effect delegates power to such an agency that is expressly reserved to our legislature by our constitution. Article 5, 7 1, as amended by Amendment 7 and Article 4, 1 and 2, Constitution of Arkansas. See, also, McLeod v. Commercial National Bank, 206 Ark. 1086, 178 S. W. 2d 496; State v. Urquhart, 310 P. 2d 261 (Wash. 1957); Dawson v. Hamilton, 314 S. W. 2d 532 (Ky. 1958); and the annotation in 133 A. L. R. 401.

It is true that the constitutionality of the Act in question has previously been approved by us. Cook v. Taylor, 210 Ark. 803, 197 S. W. 2d 738; Commissioner of Revenues v. Transcontinental Bus System, Inc., 227 Ark. 811, 301 S. W. 2d 569; Cheney, Commissioner of Revenues v. East Texas Motor Freight, Inc., 233 Ark. 675, 346 S. W. 2d 513. However, a careful review of these cases reveals that the point at issue was never considered by us.

Appellant also urges for reversal that the trial court erred in holding that the statute in question is void by reason of making an illegal incorporation by reference and, also, is void for vagueness, indefiniteness or uncertainty. Since we are affirming the trial court’s holding that the statute is unconstitutional as an illegal delegation of legislative authority we deem it unnecessary to discuss these points.

The decree is affirmed.


author: George Rose Smith, J.,

text:
    Rush v. Smith.
    5-3611
    394 S. W. 2d 613
    Supplemental opinion on denial of rehearing delivered November 1, 1965.
   George Rose Smith, J.,

on rehearing. In a petition for rehearing the appellees make the point that even if our decision is correct the transfer of stock should be set aside only with respect to the appellant’s one-third interest. The case of Bell v. Wilson, 52 Ark. 171, 12 S. W. 328, 5 L. R. A. 370 (1889), is cited for the proposition that a fraudulent conveyance is nevertheless good not only between the parties but also against all the world except the defrauded creditors.

A statute adopted after the decision in the Bell case has been interpreted to reflect a legislative intention to assist the heirs of a fraudulent grantor. Ark. Stat. Ann. <§ 62-416 (1947), carried forward into the Probate Code, Ark. Stat. Ann. § 62-2402 (Supp. 1965); Ives v. Ives, 177 Ark. 1060, 9 S. W. 2d 1062 (1928); Moore v. Waldstein, 74 Ark. 273, 85 S. W. 416 (1905). Paul Rush’s heirs, however, are not parties to the present proceeding; so we are not in a position to render a final ruling upon the question now raised by the appellees. This is a matter that may be fully explored in further proceedings upon the remand of the case to the trial court, when, too, any other necessary parties may be brought into the case.

Rehearing denied.

Original opinion P. 706.


author: Carleton Harris, Chief Justice.

text:
    Shelton v. Jack.
    5-3616
    395 S. W. 2d 9
    Opinion delivered November 1, 1965.

      Harold C. Bains, Jr. for appellant.
    No brief filed for Appellee.
   Carleton Harris, Chief Justice.

On May 1, 1961, appellants instituted a suit in the Crawford County Chancery Court against appellees, alleging that appellants and appellees were the owners of adjoining lands, with a roadway running between said lands; that the roadway was a public road, and provided the appellants with their only access to the rear of their property. The complaint alleged that appellees had illegally closed this road, and had caused a fence to be constructed across it and onto the property of appellants, thereby closing the road, and also a portion of the property claimed by appellants. The prayer sought damages in the amount of $1,000.00, and asked that appellees be required to move the fence, and be permanently restrained from interfering with the use of the road by the appellants, their guests, and successors in title.

On January 3, 1962, this suit was dismissed without prejudice. Thereafter, on September 16, 1963, appellants filed another complaint in the Crawford County Chancery Court, alleging the same facts heretofore related, and, in addition, asserting adverse use of the roadway for more than seven years under a claim of right by appellants and their predecessors in title. It was prayed that the court find the road to be a public road, or, in the alternative, a private road, and the court was asked to require appellees to remove the fences, and to enjoin appellees from interfering with the complete and unrestricted use of the roadway, and the property, alleged to belong to appellants. Damages were sought for alleged destruction of flowers, plants, and a shade tree, damages for trespass; also damages for the reduced value of appellants ’ property, and for injuries occasioned by water drainage upon the property in the total amount of $15,000.

After the filing of all pleadings in the case, and the announcement that the parties were ready for trial, appellees, through counsel, moved that the complaint be dismissed because of the fact that the present action was filed about twenty-one months after plaintiffs had taken a non-suit in the earlier case mentioned at the outset of this opinion. This motion was based on Ark. Stat. Ann. § 37-222 (Repl. 1962), which provides, inter alia, that, where the plaintiff takes a nonsuit, ‘ ‘ * * # such plaintiff may commence a new action within one (1) year after such nonsuit suffered or judgment arrested or reversed.* * *” The court granted the motion, because the instant suit had not been filed within one year from the date of the taking of the nonsuit, and entered its decree, dismissing the complaint. From such decree, appellants bring this appeal.

The sole question before this court is whether Section 37-222 applies under the facts heretofore enumerated.

The complaint asserts that the fences were constructed in the early part of 1961, and appellants contend that accordingly, they have until the early part of the year 1968 in which to file an appropriate cause of action. This argument is sound, for this question has been determined in the manner argued by appellants. In Mitchell et al, v. Federal Land Bank of St. Louis, 206 Ark. 253, 174 S. W. 2d 671, we said:

“Appellants invoke the one-year nonsuit statute, which is § 8947 of Pope’s Digest, pointing out that the orders of dismissal in the first foreclosure suits were made in February, 1938, and that the second foreclosure suits were not filed until December, 1939 (22 months later). But this contention of appellants is without merit. Mr. Justice Frauenthal, speaking for the court, in Love v. Cahn, 93 Ark. 215, 124 S. W. 259, said: ‘But the statute (Kirby’s Digest, § 5083) which tolls the statute of limitation for one year where the plaintiff suffers a nonsuit does not narrow the period of limitation in which an action may be brought upon a claim which is not otherwise barred by the general statute of limitation applicable to such claim. This provision of the statute only applies to those causes of action which, under the general statute of limitation applicable to such causé of action, would otherwise be barred before the running of one year from the time of taking such nonsuit. The statute, instead of shortening the period of limitation, really extends the period provided by the general statute of limitation applicable to the cause of action. ’ To the same effect see Dressler v. Carpenter, 107 Ark. 353, 155 S. W. 108; K. C. S. Ry. Co. v. Akin, 138 Ark. 10, 210 S. W. 350; and annotation in 83 A. L. R. 486.”

Also, in Eades v. Joslin, 219 Ark. 688, 244 S. W. 2d 623, it is stated:

“In 1939 the appellee brought suit to quiet her title to one 40-acre tract; took a voluntary nonsuit in 1940; and filed no suit thereafter until the present one, in 1949. Based on these facts, appellants plead the one year non-suit statute (§ 37-222, Ark. Stats.) as a bar to the present suit. The case of Mitchell v. Fed. Land Bank, 206 Ark. 253, 174 S. W. 2d 671, decides this question against the appellants’ because they are here seeking to invoke the one year nonsuit statute to shorten the plaintiff’s rights, and such is not its purpose. The plaintiff could have brought suit to quiet title at any time before the defendants'acquired title by adverse possession.* * *”

It follows, therefore, that the court erred in granting the motion to dismiss.

Reversed and remanded.


author: Ed. F. McFaddin, Associate Justice.

text:
    Rush v. State
    5148
    395 S. W. 2d 3
    Opinion delivered November 1, 1965.

      Van B. Taylor, Donald Poe, Hardin, Barton, Hardin é Jesson, for appellant.

      Bruce Bennett, Atty. General, By: Fletcher Jackson, Asst. Atty. General, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellant, Fred Bush, was convicted of second degree murder in the killing of his stepfather, Paul Bush; and there is this appeal. This is the second time this case has been before us. The first appeal was in Rush v. State, 238 Ark. 149, 379 S. W. 2d 29 (Opinion of May 18, 1964), wherein Fred Bush had been tried in the Sebastian Circuit Court and convicted of first degree murder and sentenced to life imprisonment. We reversed for the reasons stated in the Opinion and remanded the cause for new trial. Of course, on the second trial the greatest punishment the defendant could have received would have been life imprisonment. Sneed v. State, 159 Ark. 65, 255 S. W. 895.

On remand the case was transferred to Scótt County, where Rush was tried and convicted of second degree murder; and from that judgment there is this appeal. The motion for new trial contains 53 assignments of error, but appellant’s counsel have confined the argument to three points, which we now list and will discuss in the same order:

“I. The Court Erred in Refusing to Direct a Verdict of Acquittal.
‘ ‘ II. The Court Erred in Refusing to Admit Defendant’s Exhibits Gr’ and ‘H’.
III. The Trial Court Erred, and Denied Appellant his Constitutional Rights to a Fair Trial, in Instructing the Jury on Lesser Degrees of Homicide after the Case had been submitted to the Jury for more than 28 hours.”

I.

The information filed by the Prosecuting Attorney on March 14, 1963 charged “the’defendants, Frederick L. Rush, Raymond Wood, and Carolyn Brown, of the crime of murder in the first degree committed as follows, to-wit: the said defendants in the County, District, and State aforesaid, on the 13th of Máy, 1962, did unlawfully, wilfully, and feloniously and with premeditation and malice aforethought kill and murder Paul Rush by shooting him with a gun against the peace and dignity of the State of Arkansas.”

The defendants sought and obtained a severance, and each was tried separtely. In both the first trial and the present trial of Fred Rush the State insisted that Fred Rush, Raymond Wood, and Carolyn Brown had formed a conspiracy to kill Paul Rush; that in keeping with the conspiracy Carolyn Brown drove the getaway car for Raymond Wood so he could flee without being seen after the murder; that Fred Rush lured Paul Rush to the basement of the V. & R. Sales Company building; that Raymond Wood fired the shot that killed Paul Rush and also fired a shot into the arm of Fred Rush to provide him with, a better defense against being suspected of the murder of Paul Rush.

When this theory of the State was announced by the Prosecuting Attorney in his opening statement to the jury in the present case, the defendant moved for an acquittal, which motion was denied. The basis of the motion for acquittal was because the State had to admit that Raymond Wood and Carolyn Brown had each been acquitted of the murder of Paul Rush; and therefore since Raymond Wood was the man who fired the fatal shot and had been acquitted, Fred Rush could not be convicted. In other words, the defendant took the position that Fred Rush was at most an accessory to the killing that Raymond Wood committed, and that the acquittal of Raymond Wood as the actual murderer ipso facto worked the acquittal of Fred Rush.

We find no merit in the appellant’s position. Under the evidence a jury could have found that Fred Rush was present, aiding and abetting in the killing, and without his work there would have been no killing. At the General Election in 1936 the People of Arkansas adopted Initatied Act No. 3, captioned, “An Act to Amend, Modify, and Improve Judicial Procedure and the Criminal Law, and for Other Purposes.” Section 25 of that Act, now found in Ark. Stat. Ann. § 41-118 (Repl. 1964), reads:

“ACCESSORIES AND PRINCIPALS. The distinction between principals and accessories before the fact is hereby abolished, and all accessories before the fact shall be deemed principals and punished as such. In any case of felony, when the evidence justifies, one indicted as principal may be convicted as an accessory after the fact; if indicted as accessory after the fact, he may be convicted as principal.”

Some of our cases considering the 1936 Initiated Act are Wilkerson v. State, 209 Ark. 138, 189 S. W. 2d 800; Fields v. State, 213 Ark. 899, 214 S. W. 2d 230; and Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422. In each of these cases we held that one who stands by, aids, and abets, may be tried as a principal. So when the State offered testimony that Fred Rush was standing by, aiding and abetting in the murder of Paul Rush, he could be tried as a principal regardless of what had happened in the cases of the State against Raymond Wood and Carolyn Brown.

II.

The appellant’s second point relates to the refusal of the Trial Court to allow the defense to introduce in evidence certified copies of the judgments of acquittal of Raymond Wood and Carolyn Brown. As heretofore stated, Fred Rush, Raymond Wood, and Carolyn Brown were charged with the murder of Paul Rush; and each defendant claimed and received a severance; After the first trial of Fred Rush the State then tried Raymond Wood and he was acquitted on May 25, 1963. The State then tried Carolyn Brown and she was acquitted on July 11, 1963. At the present trial of Fred Rush he sought to introduce in evidence a certified copy of the judgment of acquittal of the said Raymond Wood, and a certified copy of the judgment of acquittal of Carolyn Brown. These were the Exhibits Gr and H, referred to heretofore. The Trial Court refused to allow such exhibits to be introduced, and the correctness of such ruling is the point now argued.

The Trial Court was correct. We do not know what the evidence was in either the Wood trial or the Brown trial. We do not know what the instructions were in either of those cases. To allow a certified copy of a judgment of acquittal to be introduced^would shed no light on the evidence in those eases. In Smith v. Dean, 226 Ark. 438, 290 S. W. 2d 439, there was an attempt to introduce a certified copy of a judgment in a criminal case to support a claim against a party in a civil case. The Trial Court refused to allow such certified copy to be introduced ; and in affirming the ruling we said:

“At the trial below the appellees introduced a certified copy of the judgement of conviction, but it is the settled rule in this State that such a .judgment is not admissible to prove the fact on which it was based. Horn v. Cole, supra; Washington Nat. Ins. Co. v. Clement, 192 Ark. 371, 91 S. W. 2d 265.”

In People v. Kief, 126 N. Y. 661, 27 N. E. 556, the situation was quite similar to the one in the case at bar. There, the defendants were jointly charged but tried separately. The copy of the judgment acquitting one defendant was held to be inadmissible when offered at the trial of the other defendant. The reasoning of the New York Court is so clear that we quote at length:

“But with the change effected by the Penal Code the distinction between principal and accessory disappeared, and thenceforward he who aided, abetted, or counseled in the commission of a crime became equally guilty with him who committed it, and could be indicted, tried, and convicted as a principal. If it is immaterial, therefore, upon the question of his guilt, whether a party, engaged in the commission of a felony, directly committed the crime alleged, or only abetted in its commission, it must be quite immaterial whether one jointly indicted with him for the offense has been acquitted or not. The question of the one defendant’s guilt cannot turn upon the establishment of the other’s guilt; it is an independent issue, to be tried out alone. . . . “Now, the fact that Carrie Howard [the other indicted person] had been acquitted or convicted could not legally prove anything for or against this defendant, for he was not a party to that record. The general principle upon which the admissibility of evidence rests is its relevancy or its tendency to establish the issue upon trial. Carrie’s acquittal would not prove this defendant’s innocence of the charge in the indictment. At the most it would only prove that, being tried first, for some reason, she escaped conviction at the jury’s hands.”

The Supreme Court of Massachusetts in Commonwealth v. Tilley (Mass.), 99 N. E. 2d 749, in reaching the same conclusion as the New York Court, stated that what happened in the case of the other defendant was “res inter alios acta” in the trial of the current defendant. In line with these cases, we hold that the Trial Court committed no error in refusing to allow the Exhibits G and H to be introduced.

III.

The third point by the appellant relates to the action of the Court in waiting until the jury had been out 28 hours before giving an instruction on second degree murder. Originally the Court instructed the jury that they should either find the defandant guilty of first degree murder or acquit him. The State requested no instruction on second degree murder, and none was given.

The case was submitted to the jury at 2:00 P.M. on January 29, 1965 on the sole issue of guilt or innocence of first degree murder. At 8:00 P.M. the jury announced that it was “hung.” The Court at that time inquired of the foreman as to how the jury stood numerically, and the foreman replied, “ten and two.” After further deliberation that night the jury was sent back to the motel for a night’s rest, and returned to the Court for further deliberation at 9:00 A.M. Saturday, January 30, 1965. At 11:30 A.M. the jury returned to the courtroom, where inquiry was made by the Court as to progress in their deliberations; and the foreman announced, “We are locked.” Thereupon, the Court proceeded to give the jury the so-called “get-together” instruction, which has been sanctioned in many cases.

The jury then returned to its deliberations until 12:45 P.M., at which time the jury went to lunch and then returned for further deliberations. At 3:50 P.M. the jury was again returned into Court and announced that they were hung. The Court said to the jury: ‘ Are there any questions that' you all have you feel you might properly ask the Court, or are there any questions pertaining to the law in this matter?” The foreman replied: “We have our instructions in there with us. Is that right?” The Court said, “Yes.” The foreman then said: “I believe it is clear. We have the instructions and they are final in the ways to go?” The Court: “Those instructions embrace the basic law and they are final in that respect and I will be frank with you, I don’t know of any way I can enlarge upon them or explain them. If there is some particular part that you don’t understand the legal terms or terminology that you don’t understand, I might be able to help you with that. If the questions are put to me as to the forms of verdict I cannot, offer you any alternative on that. ’ ’

The jury took a brief rest and at 6:00 P.M. the Court called the jury back into the courtroom and, over the objection of the defendant, instructed the jury on second degree murder and manslaughter. The defendant’s counsel said: “I am going to object to the giving of such instructions at this time; to the Court’s instruction on second degree murder, on the ground that this lawsuit has been tried solely upon the theory that it was murder in the first degree, or that the man was innocent; and at this late stage, after the evidence has been adduced, instructions given, arguments made, and the jury has been out better than 26 hours and deliberated a great deal of time . . ,”

At all events, the Court gave an instruction on second degree murder and manslaughter at 6:00 P.M. Saturday January 30, 1965; and at 7:00 P.M., one hour later, the jury brought in the verdict of guilty of murder in the second degree and fixed the punishment at twelve years in the penitentiary.

We cannot put the stamp of approval on the action of the Court in first ascertaining that the jury was hopelessly deadlocked on first degree murder, and then offering a charge on second degree murder. It was almost the same as “bargaining” with the jury. It is not a question of whether the Court should have given the instruction on second degree murder at the time the other instructions were given: the question, here, is the challenge to the Court’s action, in waiting 28 hours and ascertaining that the jury was deadlocked, and then charging the jury on a lesser degree of the offense.

We find no Arkansas case directly in point on this, but we have found cases from other jurisdictions that bear on the matter. In People v. Stouter (Calif), 75 P. 780, the defendant was charged with a “lascivious act on the body of a child under the age of 14 years.” He was tried for that offense and at conclusion of the evidence the Court told the jury it should render one of two verdicts: either guilty as charged, or not guilty. The jury retired at 9:00 P.M. on January 18th and was out fourteen hours without being able to agree. The jury came in and asked if the verdict must be either guilty or innocent, to which the Court gave an affirmative answer. Twenty-four hours after the case had been submitted to the jury they announced that they could not’agree; and then, for the first time, the Court gave a new instruction to the jury to the effect that the defendant might be found guilty of an attempt to commit the crime charged; and a form of verdict was offered the jury on that phase of the case. In a very short time the jury returned a verdict of guilty of attempt to commit the crime. In holding that the Trial Court had committed error, the Supreme Court of California said:

“There is no doubt of the general rule that after a jury have retired for consultation they may be called into court for further instructions; but we think that it was erroneous and unfair to defendant to give the last instruction as to the attempt, at the time and under the circumstances at and under which it was given. The jury had been out for a very long time without being able to agree under the instructions which had been given them, and which had been on subsequent occasions repeatedly reiterated, and many of the jurors had practically told the court what their opinions were, and that if the instructions were changed so as to meet their views they could find a verdict of guilty, contrary to the former instructions. The project of instructing the jury for the first time, after they had been unable to agree for 24 hours, that they might, notwithstanding the former instructions, convict the defendant of the attempt, was clearly an afterthought suggested by the statements of the jurors as to how they then stood, and apparently intended to help them, not generally to arrive at a verdict, but to arrive at some sort of a verdict of guilty. Such a proceeding is, we think, a most dangerous interference with the right of a defendant to a fair trial. . . . Jurors exhausted by a long confinement, and naturally desirous of being released, are not in a suitable frame of mind to thoroughly consider an entirely new phase of the case under a new instruction which might fairly be construed as an expression of the court hostile to the defendant. ’ ’

In the case of State v. Anderson (W. Va.), 185 S. E. 212, the Supreme Court of West Virginia had before it a case wherein the defendant was tried for murder and the Court instructed the jury that it must bring in one of three verdicts: murder in the first degree, murder in the second degree, or not guilty. After the jury had deliberated parts of two days and been unable to agree, the Court then instructed the jury on manslaughter; and the jury promptly rendered a verdict of manslaughter. The Supreme Court of West Virginia held that the Trial Court had committed an error prejuricial to the rights of the defendant in giving the instruction of the lesser offense under the facts and circumstances in the case.

In Brown v. Commonwealth (Ky.), 224 S. W. 362, the defendant was charged and tried for “detaining a female against her will for the purpose of having carnal knowledge of her.” After the jury had deliberated for some time and informed the Trial Court of inability to agree on a verdict, the Court; for the first time, instructed. the jury on assault and battery. A verdict was quickly returned for such lesser offense. The Court of Appeals of Kentucky held that the action of the Trial Court was improper in giving such additional instructions at the time and under the situation existing. In 16 C. J. p. 1089, and also in C. J. S. Vol. 23A, p. 1004, the text reads:

“It is error to give a new instruction covering a different, phase of the case, after the jury have been deliberating for some time and have had the instructions repeated to them, but are unable to reach a verdict.”

After carefully studying the record in this case, we are thoroughly convinced that when the Court gave the instruction on second degree murder it had the effect of bargaining with the jury, and that the Court violated the rights of the defendant in giving the instruction after first ascertaining that the jury was unable to reach a verdict on the charge of first degree murder. For this error we reverse the judgment and remand the case for a new trial.

       Our holding in Sneed v. State is because of the wording of Ark. Stat. Ann. § 43-2153 (Repl. 1964). The holdings in some other jurisdictions are contrary to our holding. See Stroud v. U. S., 251 U. S. 15, 64 L. Ed. 103, 40 S. Ct. 50.

       The full text of this Act may he found on Page 1384 et seq. of the Acts of 1937.


text:
    Cathey v. Robertson.
    5-3666
    395 S. W. 2d 22
    Opinion delivered November 1, 1965.

      Ed B. Cook, for appellant.

      H. G. Partlow, Jr. for appellee.
   George Rose Smith, J.

In this proceeding the appellant, James M. Cathey, is contesting the will of his brother Barton on the ground of testamentary incapacity. Barton died January 8, 1964, at the age of 74. He was survived by the appellant, by a half sister, and by several nieces and nephews. His will, executed September 26, 1963, left all his property to one of his nieces, Erma Lorene Mays, aged 60. The probate court upheld the will. The only question on appeal is whether the trial court’s decision is against the weight of the evidence.

For some three years, beginning in 1940, Barton was of unsound mind and was confined to the State Hospital. It does not appear that after his release from that institution any physician had an opportunity to consider the matter of Barton’s sanity. No medical expert testified at the trial. The contestant sought to establish by lay testimony that Barton was still suffering from insane delusions during the latter part of his life, when the will was executed.

The contestant called eleven witnesses, among whom the most outspoken were related to the Cathey family by blood or marriage. The proof most favorable to the appellant’s attack upon the will indicates that Barton often made irrational declarations about himself and his powers. At times he claimed to be God, to possess supernatural gifts, and to have spirits available to do his bidding. He made various absurd claims, such as the ability to control the universe, to bring World War II to an end, to destroy every living person on earth, to use the lightning for his own purposes, and to silence a radio station. It is perhaps odd that the witnesses do not intimate that. Barton appeared to he especially vehement or excited or overwrought in making these assertions. To the contrary, the witnesses seem to he narrating statements made in a conversational manner.

Regardless of what Barton may have said from time to time, we are impressed by the almost total lack of irrationality in what he is shown to have done. The' contestant, James Cathey, testified that upon one occasion Barton set fire to one of James’s fields and burned up seven or eight acres of beans, but this is about the only indication of activity that might he regarded as evidencing unsoundness of mind.

There is, we think, sufficient proof in the record, including some testimony adduced by the contestant, to support the decision reached by the trial court. Long-before the execution of the challenged will Barton had inherited from his mother forty acres of farm land and from his father an undivided one-third interest in another forty. For years Barton managed his property himself, farming part of it and renting part of it to tenants. He looked after his own finances and, living with great frugality, accumulated a modest estate. In addition to his farming operations Barton had a blacksmith shop and is shown to have been an unusually skillful mechanic. He had only a third grade education, but he read extensively and was able to follow the directions in magazine articles in carrying out creative projects in his shop.

An accountant who prepared Barton’s income tax returns from 1957 through 1961 testified that he seemed to be mentally normal. A grocer with whom Barton traded for ten years described him as a sensible man. A neighbor who sold Barton farm machinery on credit testified that although Barton was eccentric he was always sharp in his business dealings. A salesman who sold Barton a car for $i,995 cash in 1960 or 1961 considered him to be “as sane as anybody.” Albert Ellis, one of the contestant’s witnesses, was recalled for cross-examination and testified that he considered Barton to be sane.

In our opinion the will does not, as the appellant contends, involve an unnatural disposition of the testator’s estate. Barton is shown to have had a controversy with his brother, the contestant. He also bore a grudge against his sister, who predeceased him by a few months, because she had caused him to be committed to the State Hospital in 1940. In the circumstances there is nothing especially unusual in the testator’s election to leave his property to his niece. With respect to the will itself we may add that both the attorney who prepared it and the secretary who acted as the other attesting witness testified in favor of the validity of the will.

It will be remembered that the will was executed in September of 1963. At that time there was a dispute between Barton and his brother and sister about the title to the forty acres they had inherited from their father. In October and November, after the execution of the will, this brother and sister negotiated, through their attorney, for an exchange of deeds by which the dispute about the title would have been settled. There is a manifest inconsistency between the appellant’s insistence that Barton was incapable of making a will in September of 1963 and his efforts to obtain a- deed from Barton later in the same year.

We are of the opinion that the judgment must be affirmed; it is so ordered.


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Ark. State Highway Comm. v. Cunningham, Judge
    5-3655
    395 S. W. 2d 13
    Opinion delivered November 1, 1965.

      Phil Stratton and Mark E. Woolsey, for appellant.

      Murphy,:Arnold S Purtle, for appellee.
   Paul Ward, Associate Justice.

This litigation stems from an attempt by T. H. Weaver to enforce an alleged oral promise by the Arkansas State Highway Commission (hereafter referred to as Commission) to “blacktop a loop of highway” through Charlotte in Independence County.

When a complaint was filed in chancery court by Weaver against the Commission for the purpose mentioned above, the Commission filed in this Court a “Petition for Writ of Prohibition,” asking us to prohibit said chancery court and the Judge thereof from trying the cause of action. The only issues are the questions of law raised by the pleadings.

The complaint filed by Weaver sets out, in substance, the following allegations: (a) Plaintiff is a resident of Independence County and is the owner of certain (described) land; (b) The defendants are (naming the five members of the Commission), and certain agents of the Commission — both, “individually and in their representative and official capacities”; (c) State Highway No. 25 (which by-passes Charlotte) is located on Weaver’s property; (d) When No. 25 was being relocated (to cross his land) he “entered into an agreement with” the defendants wherein he (Weaver) “would furnish the right-of-way (for No. 25) through his said property free of charge to the defendants and to Independence County” and in consideration thereof “the Arkansas Highway Commission would blacktop a loop of the highway through Charlotte”; (e) Pursuant to the above agreement he allowed defendants to construct No. 25 which severs his land and diminishes the value thereof; (f) After No. 25 was completed through his land the Commission failed and now refuses to fulfill its obligation to construct the “loop”; (g) He has no recourse except against these defendants, since the county is wholly without funds. The prayer was for specific performance of the said agreement, or (as alternatives) that the defendants individually and the general public be enjoined from using that portion of No. 25 which crosses his land, or that the right-of-way be restored to him, or that he be awarded damages in the sum of $20,000.

There are presented for our consideration two principal questions: One, does the Respondent have jurisdiction of the parties and the subject matter; and, Two, is prohibition the proper remedy.

One. We agree with the Petitioner that the Respondent has no jurisdiction to try any of the issues raised in the complaint filed by AVeaver. The Arkansas Constitution, Article 5, § 20 provides: “The State of Arkansas shall never be made defendant in any of her courts.” Certainly that language is too plain to require comment. The pertinent issue then is whether this suit against the Commission amounts to a suit against the State. This issue had been clearly resolved against the Respondent by many descisions of this Court. See: Pitcock v. State, 91 Ark. 527, 121 S. W. 742; Watson v. Dodge, Ark. 1055, 63 S. W. 2d 993; Arkansas State Highway Commission v. Nelson Bros., 191 Ark. 629, 87 S. W. 2d 394; Bryant v. Ark. State Highway Comm., 233 Ark. 41, 342 S. W. 2d 415.

In the Pitcock case, which involves a contract entered into by the State Penitentiary, this Court said:

“The first and only question necessary for us to determine in this case is whether or not this is a suit against the State; for, if it is, then the chancery court was wholly ivithout jurisdiction to proceed, and all orders and judgments attempted to be rendered therein were void.”

The court then held the suit to be against the State. In the Watson case, there appears this paragraph:

In addition to the authorities just cited, this court held in Caldwell v. Donaghey, 108 Ark. 60, 156 S. W. 839, that the State could not be sued in her courts for specific performance of a contract made in her behalf.”

In the Bryant opinion there appears a statement which is pertinent to the matter here under consideration:

“Indeed, the present proceeding has no purpose execpt to force the Highway Commission into court, Avhere a claim for damages can be asserted against it by the appellants. We must conclude that this proceeding falls within the constitutional inhibition against suits against the State. If the appellants have a right to compensation —a point upon Avhich Ave need not express an opinion— they are limited, as Ave said in the Part am case, supra, to filing an administrative claim for such relief as the State may see fit to provide.”

It is pointed out that Weaver is not attempting to seek relief from anyone except the Highway Commission. In the complaint it is stated “that the Ark. Highway Commission Avould blacktop a loop highway through Charlotte.”

Two. Respondent makes a Avell reasoned contention to the effect that prohibition is not the proper remedy because the Petitioner had the right of appeal from any adverse decision that might have been made by the trial court. In our opinion, however, the uniform decisions of this Court refute such contention. In Monette Road Improvement District v. Dudley, [Judge], 144 Ark. 169 (pp. 175-176), 222 S. W. 59, there appears the following statements:

“So it is thus settled that where it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the superior court exercising supervisory control over the inferior court may prevent such unauthorized proceedings by the issuance of a writ of prohibition. The essential thing is, that it must be shown that the inferior’ court is about to proceed beyond its jurisdiction, and that fact is said to be the jurisdictional one upon which the right of the supervising court to issue the writ of prohibition depends. “It is contended by counsel for the respondent that the remedy by prohibition not being an absolute .one, but discretionary, the writ should be denied where there is a remedy by appeal or otherwise, even though the court sought to be restrained was about to proceed beyond its jurisdiction.
“If the absence of the right of appeal was essential to the issuance of a writ of prohibition, then that remedy would be entirely unavailable in any case, for under our Constitution the right of appeal is granted in all judicial proceedings. The true test is, as stated in the case already cited, whether or not the court is proceeding beyond its jurisdiction; and when that state of facts is shown to exist, the remedy by prohibition is the appropriate one.”

Likewise in Ark. State Highway Commission v. Dodge [Judge], 181 Ark. 539 (p. 541), 26 S. W. 2d 879, we said: “The practice is well settled that, when it appears that an inferior court is about to proceed in a matter over which it is entirely without jurisdiction under any state of facts which may be shown to exist, then the Supreme Court, exercising supervisory control over the inferior court, may prevent such unauthorized proceeding by the issuance of a writ of prohibition.”

In the case of Faver v. Golden, 216 Ark. 792 (p. 796), 227 S. W. 2d 453, this Court said:

“It is also true that the remedy by prohibition is discretionary with the court and is used cautiously . . . . Issuance of the writ depends on the inadequancy, rather than the absence, of the remedy by appeal. Monette Road, Imp. Dist. v. Dudley, 144 Ark. 169, 222 S. W. 59. Hence, we have held that the great expense of money and length of time required in an election contest render the remedy by appeal inadequate as to petitioners.”

In accordance with what we have said above, the Petition of the Commission is hereby granted.

McFaddin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). I respectfully dissent on at least two grounds: (1) this is not a suit against the State; and (2) the Chancery Court had jurisdiction to enjoin the trespass. These two matters will now be discussed.

I.

The complaint filed by T. H. Weaver in the Chancery Court was captioned as follows:

“T. H. Weaver .........................Plaintiff
vs. No. 3490
Charlie Matthews, George Cavenass,
Ward Goodman, Floyd R. Oliver, Director,
Arkansas Highway Commission and Armil
Taylor, Glen F. Wallace, J. E. Crain,
Truman Baker and Wade Hampton, Members oe
the Arkansas Highway Commission......Defendants.”

It will be observed that Floyd R. Oliver was identified as a Director of the Highway Commission, and Taylor, Wallace, Crain, Baker, and Hampton were identified as members of the Highway Commission. The Highway Commission itself, as cm entity, was not sued.

The situation here is the same as it was in Federal Compress v. Call, 221 Ark. 537, 254 S. W. 2d 319. In that case Mr. Call was the State Commissioner of Labor and' Mr. Adkins was the Administrator of the Employment Security Division. The Federal Compress Company filed suit against these persons in the Pulaski Chancery Court, identifying their official capacities, and alleging that Call and Adkins had erroneously paid seasonal workers certain benefits. The prayer was for an injunction against the defendants. It will be observed that Call and Adkins were each State officials; and the question presented to us on appeal was whether the suit against Mr. Call and Mr. Adkins was a suit against the State. We held that the suit was not against the State, citing as our authority Hickenbottom v. McCain, 207 Ark. 485, 181 S. W. 2d 226; Call v. Luten, 219 Ark. 640, 244 S. W. 2d 130; and Pitcock v. State, 91 Ark. 527, 121 S. W. 742, 134 A. S. R. 88. Our quotation from the last cited case shows the distinction between a suit against an officer and a suit against the State:

1 ‘ ‘ The only distinction found in these cases is that where the suit is against an officer to prevent him from doing an unlawful act to the injury of the complaining party, such as the taking or trespass upon the property belonging to the latter, the former cannot shield himself behind the fact that he is an officer of the state; and also where the officer refuses to perform a purely ministerial act, the doing of which is imposed upon him by statute. In either of such cases a suit against such an officer is not a suit against the State. ’ ’

I submit that the case at bar is a suit against employees and officers of the State, and not a suit against the State Highway Commission, which was not named as a defendant. The individuals were identified as to their connection with the State Highway Commission, just as Mr. Call was identified as State Commissioner of Labor and Mr. Adkins as Administrator of the Employment Security Division in Federal Compress v. Call. Certainly since the Highway Commission was not sued as such in the Chancery Court, it could not properly ask us to issue a writ of prohibition in favor of the Highway Commission, which was not a defendant in the Chancery Court.

II.

My second ground for dissent is that the Chancery Court had jurisdiction to enjoin the trespass. To demonstrate this point I copy certain allegations of the complaint in the Chancery Court:

“3. That State Highway No. 25 traverses the lands belonging to the plaintiff as above set out in its new location; that before the highway was moved to its new location it did not cross these particular lands; that at the time that Highway No. 25 was proposed and the relocation thereof contemplated the plaintiff entered into an agreement with Charlie Matthews, George Cavenass, Ward Goodman and the then members of the Arkansas Highway Commission and its Director, which agreement was in substance as follows: That the plaintiff would furnish the right-of-way through his said property free of charge to the defendants and to Independence County in consideration, however, that the Arkansas Highway Commission would blacktop a loop of highway through Charlotte, Arkansas, entering Charlotte from the Northeast and leaving Charlotte from the Southwest to join Highway No. 25 at each end of said loop; that this agreement was exceedingly important to the defendants and to Independence County because the action of this plaintiff was considered by all parties as the determinative factor in obtaining right of way for the length of the highway.
“4. Pursuant to this agreement the plaintiff allowed the defendants in their individual and representative capacities to enter upon his land and build, prepare, grade, roll, pack, sealcoat and pave a new roadway for Highway No. 25, which completely severed his lands and greatly diminished the value of his lands from its highest and best use.
“5. That after Highway No. 25 was built the defendants all the while re-assuring plaintiff of their obligation conducted two surveys for this loop, but that the defendants have not as yet paved said loop or located said loop and have now refused to fulfill their obligation' to the plaintiff.
“6. That because of this the plaintiff states that an unconscionable fraud has been perpetrated upon him in the securing and taking of his land without just compensation as required by the Constitution of Arkansas, and further, that the defendants and each of them wilfully, wrongfully and fraudulently deprived the plaintiff of his land; that the plaintiff further alleges that Independence County has no funds with which to pay plaintiff for this land, but that said County could have been made liable for the damages but for the fraud of the defendants; that plaintiff has no recourse whatever except as against these defendants.
“7. Plaintiff states further that he has no adequate remedy at law because the County is wholly without funds with which to make compensation to the plaintiff and, further, that a court of law cannot set aside the agreement for fraud; that the plaintiff further states that numerous and daily continuing trespasses are being-committed by the defendants and the public at large to the great and irreparable harm of the plaintiff.
“Wherefore, the plaintiff prays that .... the plaintiff is entitled to an injunction to prevent the defendants individually and the general public from trespassing upon the lands unless sufficient bond be posted in open court to cover the fair market value of the land taken at its highest and best use as of the date it was taken . . . .”

Certainly the Chancery Court has jurisdiction to enjoin individuals from trespassing on the property of another. We can forget everything in the case except the prayer that these defendants individually be prohibited from trespasing on Weaver’s lands. That makes a case for equity, and therefore a writ of prohibition should not issue. We have a number of cases recognizing the right of an owner of land to prevent persons from trespassing, particularly where the complaint alleges— as it does here — that suit for damages is unavailing and the only adequate relief for the plaintiff is injunction. One such case is Gray v. Malone, 142 Ark. 609, 219 S. W. 742, wherein we said:

“The first contention of appellant is that the chancery court was without jurisdiction. This contention cannot he sustained for several reasons. True, the original complaint was defective and did not state facts sufficient to give the chancery court jurisdiction, because it failed to allege that the appellant was insolvent, and therefore failed, to allege facts showing that the appellee had no adequate remedy at law for the trespasses of appellant of which the appellee complained. Burnside v. Union Saw Mill Co., 42 Ark. 118, and cases there cited. But the chancery court had jurisdiction of the parties, and it had jurisdiction of the subject-matter of restraining trespasses on the lands of appellee if the pleadings raised the issue that the trespasser was insolvent. The pleadings did raise that issue.”

Since equity had jurisdiction to -enjoin a trespass, the writ of prohibition herein should not be granted. There is another good reason why this case should be heard and the facts developed in the Chancery Court. The plaintiff, T. H. Weaver, alleged that the employees and officers of the Highway Commission had made a contract with him whereby, if he would allow a road over one part of his land, he would receive a blacktop loop on another portion; that the employees now refuse to carry out the agreement; that such refusal nullifies the original contract for a road over his land; and that he is entitled to an injunction against trespassing.

The facts should he developed. The State should either require its employees and officers to fulfill their agreement, or to return to the landowner what the employees and officers received from him. Did these employees and officials of the State make this agreement? If they did, the facts should be developed. If they did not, they should be the last people on earth to keep the facts from being developed. By coming into this Court and asking- for a writ of prohibition they leave the impression that they do not want the facts developed; that they did make such an agreement but now seek to hide under the mantle of the sovereignty of the Arkansas Highway Commission. I maintain that the Sovereign should be just to the subject, and that the State should deal fairly with its citizens. I would like to see the facts in this case fully developed.

For the reasons herein stated, I respectfully dissent.


text:
    Hoover v. Garrison.
    5-3657
    395 S. W. 2d 19
    Opinion delivered November 1, 1965.

      Ciarle, Ciarle & Ciarle, for appellant.

      Guy H. Jones, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Paul Hoover, is the 14 year old son of appellant, James Hoover, Jr. On the 17th day of May, 1963, Paul, while driving his father’s car, ran into an automobile owned by the appellee, Cecil Garrison. On November 12, 1963, Garrison’s attorney wrote to James Hoover stating that his client’s car had been damaged in the sum of $115.00 by the aforesaid collision, and demanded the payment of that amount. Hoover made no offer of settlement. On March 3, 1964, Garrison filed suit alleging the damages to his car amounted to $150.00. He asked for judgment for double that amount and for an attorney’s fee under the provisions of Ark. Stat. Ann. 75-918 (Repl. 1957), which provides:

“In all cases wherein loss or damage occurs to property resulting from motor vehicle collision amounting to two hundred ($200.00) dollars or less, and the defendant liable therefor shall, without meritorious defense, fail to pay the same within 60 days after written notice of the claim has been received, such defendant shall be liable to pay the person entitled thereto, double the amount of such loss or damage, together with a reasonable attorney’s fee which shall not be less than fifty dollars ($50.00), and court costs. This liability which is limited to damage to property, attaches when liability is denied and suit is filed.”

The cause was tried to a jury. There was a verdict for the plaintiff in the sum of $150.00. On authority of the aforementioned statute, the court assessed an additional $150.00 by way of penalty, and an attorney’s fee of $150.00.

On appeal, the Hoovers concede that the evidence is sufficient to support the jury verdict, but they contend that the trial court erred in giving effect to the foregoing-statute by assessing an additional $150.00 as damages, and an attorney's fee. We see no valid reason why the statute' should not apply in this ease. The notice required by the statute was given, and the jury returned a verdict for the full amount asked by plaintiff. True, the notice stated damages in the sum of $115.00 and the suit was filed asking- for $150.00, but appellants never at any time offered to pay any amount. This is not a case of plaintiff demanding a very small amount of damages thereby lulling the defendants into believing that only a trifle was involved and then filing suit for a much greater amount. Here, there is only $35.00 difference in the amount claimed as damages before suit was filed and the amount asked in the complaint. Moreover, when appellee filed suit for $150.00 appellants made no offer to pay the original amount demanded, or any other sum.

The court read to the jury the above mentioned statute providing for double damages and attorney’s fee. Although it was not necessary to read the statute to the jury, we fail to see how the appellants were in any manner thereby prejudiced. In fact, it appears that by informing. the jury regarding the statute, the appellee’s case could have been prejudiced.

Finding no error, the judgment is affirmed.


text:
    Shepherd v. Kerr.
    5-3634
    395 S. W. 2d 11
    Opinion delivered November 1, 1965.

      Giles D earing, for appellant.

      James Robertson, for appellee.
   Jim Johnson, Associate Justice.

This appeal arises from a probate court judgment which denies payment of administratrix’ fees, attorney’s fee and court costs.

Preston Shepherd of Forrest City died intestate on December 18, 1962, leaving a widow and eight children, two of whom are minors. The widow, appellant Yirgie Shepherd, petitioned for appointment as administratrix of Shepherd’s estate in St. Francis Probate Court and letters of administration were thereafter issued to her. Mr. Shepherd owned eighty acres of land and a quantity of farming tools, machinery and equipment (inventoried at $22,870). Each year Shepherd had rented a number of farms and farmed extensively. Appellee W. O. Kerr had financed Shepherd in his farming operations, taking a mortgage on Shepherd’s equipment and crops every year to secure payment of Ms advances. Kerr also held a second mortgage on Shepherd’s eighty acres, .the first mortgage being held by the First National Bank of Eastern Arkansas.

Appellee’s pleadings reveal that it was the-custom of appellee Kerr to allow Shepherd to sell his crops, deposit the proceeds in his (Shepherd’s) personal account and then pay Kerr. Just before Shepherd died he had sold most of his crops for that year and had deposited the money in his account. After paying Kerr $25,000 (leaving $27,999.68 owing on his 1962 account), there was $13,154.23 in Shepherd’s bank account at the time of his death, which in due course was transferred to the administratrix’ account. Following an order of the probate court, appellant administratrix employed labor, harvested the remaining crops, sold them for about $5,000 and deposited these funds to her account as administratrix.

Appellant on January 9, 1963, petitioned the court for authority to employ an attorney, which was granted. This attorney served until January 31, 1963, at which time the court permitted him to withdraw. In March, 1963, one of Shepherd’s landlords, Edgar, filed suit in chancery against appellant for his rent of $4,000 and joined the bank and appellee as parties defendant. Appellant then requested instructions from the probate court relative to Edgar’s chancery action and was authorized by the probate court to offer no defense. After payment of the $4,000 by appellant as administratrix, Edgar withdrew from the suit. Appellee Kerr filed an answer and cross-complaint in Edgar’s chancery suit setting up his account (which totaled some $188,000 over a four-year period), mortgage and security agreement on the crops and farming equipment, alleging that he had a lien on the land, on all of Shepherd’s personal property including the funds in the administratrix’ account and twelve bales of cotton being sold by cotton factors, and prayed the court to direct appellant and the bank to pay him the balance in the administratrix’ account. (On May 22, 1963, appellant petitioned the probate court for instructions and on May 23rd the court ordered her to offer no defense to foreclosure of the liens held by Kerr on the decedent’s real and personal property. (The record before us is silent as to any final disposition of this chancery action.)

On July 25, 1963, appellant again petitioned for authority to employ an attorney, stated that she needed counsel in passing on claims against the estate amounting to almost $200,000 and for defense in circuit court suits filed- against the estate, and was given permission to employ her present counsel.

On September .27, 1963, appellant filed her final report as administratrix showing property of the estate in her hands including cash in the bank in the sum of $13,792.79, setting out class “a” and “b” claims, allowed and disallowed, asked that she be directed to pay first the class “a” claims, then “b” claims as far as the funds would go, and for discharge as administratrix. Kerr filed objections to the final account, alleging that he had a lien on all of the funds and farming equipment in appellant’s hands and that the estate is without funds to pay any claims. On December 19, 1963, the probate court ordered appellant to pay without delay certain class “a” claims for labor (performed in the 1962 harvest) totaling about $1,700. The court also found that no fees, costs or expenses had been paid to appellant or her attorney, allowed these as class “a” claims in the amounts fixed by statute, and added that “such claims [for administratrix’ and attorney’s fees] are not to be paid until further order of this court.” On January 14, 1965, the probate court entered its judgment on the final report, finding that appellee Kerr had filed his secured claim against the estate in the sum of $188,000, that appellee had filed an answer and foreclosure in Edgar’s chancery action claiming security on all of decedent’s personal property, foreclosure of his second mortgage, and also that appellant insisted that attorney’s fees, court costs and administratrix’ fees should be paid prior to the lien held by appellee. The court ordered “that administratrix and attorneys fee should be allowed according to Statute but said attorneys fees and administratrix fee are not paramount claims of Kerr, holder of secured claim on specific property. The specific property under Financing Statement, Security Agreement or mortgage cannot be used to pay such claims.” From the judgment appellant has prosecuted this appeal.

For reversal appellant urges first that appellee waived his lien on the proceeds of the crop sale made by decedent by permitting decedent to sell the crops and to deposit the proceeds in his (decedent’s) personal bank account and then later pay appellee. The contention, in esse, is that the funds in the decedent’s bank account, prior to his death, were free of appellee’s lien and therefore passed to the administratrix free of the lien. This court has consistently held that where a mortgagee authorizes or gives consent to the mortgagor to sell the mortgaged property, the mortgage lien thereon is discharged (Fincher v. Bennett, 94 Ark. 165„ 126 S. W. 392; Vaughn v. Hinkle, 131 Ark. 197, 198 S. W. 705; Mitchell v. Mason, 184 Ark. 1000, 44 S. W. 2d 672; May Way Mills Inc. v. Jerpe Dairy Products Corp., 202 Ark. 397, 150 S. W. 2d 615; Farm Bureau Co-op Mill & Supply v. Swift & Co., 227 Ark. 182, 297 S. W. 2d 107; Bank of Bentonville v. Swift & Co., 233 Ark. 808, 348 S. W. 2d 881); however, all reported Arkansas cases on this point of law involve the .rights of some third party, usually a purchaser from the mortgagor. We find no cases and have been cited none applying this rule to an action solely between a mortgagor and mortgagee. A decision on this point is not necessary for a determination of this case. We defer passing on the point urged until such time as it is better presented inasmuch as the only question we are called upon to answer here is confined solely to the validity of the claims for administratrix fees, attorneys fees and court costs.

Appellant next contends that appellee is estopped from objecting to payment of the fees of the administratrix and' the attorney for the estate by having acquiesced in and consented to their actions and accepted their sendees. With this contention we agree. Throughout the administration of decedent’s estate, appellee has accepted appellant’s services in marshalling and conserving the assets of the estate, never sought appointment of Receivers in foreclosure of Ms various mortgages although entitled thereto by the terms of his mortgages. Appellee did not ask that the administratrix be stopped from selling the crops on which appellee had a mortgage, but allowed her, if he did not in fact encourage her, to hire labor, harvest and sell the crops (and made no objection to payment of the laborers or the rent). Having accepted and taken advantage of the services of the administratrix and the attorney for the estate, appellee is estopped to deny them payment for these services. Adams v. Woods, 128 Ark. 441, 194 S. W. 849; Harris v. Thackery, 201 Ark. 881, 147 S. W. 2d 355. Accordingly, the cause is hereby reversed and remanded for entry of an order allowing payment of administratrix’ fee, attorney’s fee, and court costs, together with an additional attorney’s fee for services to appellant in this court.


author: Frank Holt, Associate Justice.

text:
    Continental Southern Lines v. Moses.
    5-3665
    395 S. W. 2d 20
    Opinion delivered November 1, 1965.

      Warren & Bullion, for appellant.

      Howell, Price & Worsham, for appellee.
   Frank Holt, Associate Justice.

Appellee brought this action to recover damages allegedly sustained in a collision between his automobile and a bus belonging to appellant, a foreign corporation. This incident occurred in Memphis, Tennessee. A jury awarded damages in the sum of $10,000.00 to the appellee who had only sued for $9,999.00. Upon a remittitur of $1.00 being entered, a judgment was accordingly rendered against the appellant from which this appeal is brought.

At the time of the accident in 1963 appellee suffered from a slipped disc due to an injury in 1959. According to his evidence, by 1960 he had recovered to the extent that his physical áctivities were largely unimpaired. As a traveling salesman he was servicing his entire sales territory which consisted of parts of five states. As a result of the injuries received by him in the 1963 accident, his physical condition required him to reduce his territory to such an extent that his gross income was reduced by $2,000.00 per year and that his pre-existing disability has increased approximately 10%.

For reversal appellant contends the court erred in giving appellee’s instruction #4 relating to aggravation of a pre-existing injury. The instruction reads as follows :

“If you find that the plaintiff is entitled to recover you are instructed that'if you find from a preponderance of the evidence that the plaintiff received injuries which aggravated a condition or conditions from which he was suffering and.that such injuries, if any, from which he was suffering or to which he was predisposed, if any, excited or caused the condition from which he now suffers, if you find he is suffering disability, then he is entitled to recover to the full extent of whatever you find his injury so received to warrant, notwithstanding the fact that you may find he was suffering from some abnormalities prior to the injuries sustained by him. ’ ’

Appellant objected generally and specifically contending that the instruction was ambiguous, confusing, misleading, and an incorrect statement of the law. "We agree with the "appellant. This instruction can be construed to tell the jury that if it finds the pre-existing condition of appellee’s health caused the condition from which appellee now suffers, without considering any subsequent injury from the accident complained of, then the jury could compensate appellee to the full extent of his present disabilities.

A clear and concise statement of the law as to the aggravation of a pre-existing condition is stated by us in Owen v. Dix, 210 Ark. 562, 196 S. W. 2d 913, where we said:

‘ ‘ The rule appears to be well settled that when a defendant’s negligence aggravates, or brings into activity, a dormant or diseased condition or one to which the injured person is predisposed, the defendant is liable to the injured person, for the full amount of -the damages which ensue, notwithstanding such diseased or weakened condition.”

Appellee’s- instruction # 4 incorrectly presented the applicable law to the jury concerning the aggravation of a pre-existing physical condition.

Appellant also contends the court erred in giving appellee’s instruction # 5 to which appellant made general and specific objections. This instruction relates to the measure of appellee’s permanent and future damages. Since we hold that the giving of appellee’s instruction # 4 constituted reversible error it is unnecessary for us to discuss any defectiveness of instruction # 5. The subjects of both instructions are now covered by our recently adopted Arkansas Model Jury Instructions [AMI]. Therefore, the issues presented to us by instructions 4 and 5 should not arise again upon a retrial of this cause.

Appellant’s final contention for reversal is that the jury verdict was contrary to the evidence. There was evidence presented by the appellee that he was proceeding in his proper lane of traffic and the driver of the bus negligently pulled in front of appellee’s vehicle causing the accident and resulting in his personal injuries and property damage. Appellant contended to the contrary that appellee’s injuries resulted from the negligent manner in which he was driving when following the bus. We think there was ample evidence to support appellee’s theory of the accident in the event the jury chose to believe his evidence.

The judgment is reversed and the cause remanded.