author: Paul Ward, Justice.

text:
    Walter J. SARDIN v. E. W. ROBERTS
    5-4490
    424 S. W. 2d 889
    Opinion delivered March 11, 1968

      W. M. Herndon, for appellant.

      Smith, Williams, Friday & Bowen, for appellee.
   Paul Ward, Justice.

Walter J. Sardin (appellant) sued E. W. Roberts (appellee) to recover for personal injuries, allegedly caused by the negligence of appellee in an automobile collision. The trial resulted in a jury verdict in favor of appellee.

Appellant was driving a Cadillac automobile across Broadway bridge toward North Little Rock and appellee was following in a Volkswagen. When appellant reached the end of the bridge he turned to his right and appellee followed in the same lane a short distance behind, both cars traveling approximately fifteen miles per hour. Shortly after the turn was made the left front fender of appellee’s car collided with the right back bumper of appellant’s car.

On appeal appellant seeks a reversal on the sole ground that there was no substantial evidence to support the jury verdict.

Appellant and appellee were the only eye witnesses who testified as to what caused the collision. In substance, appellant stated: It had snowed the night before and I didn’t know whether the streets were still slick or not so when I came off the bridge I slowed down to go around the curve when appellee’s car struck my ear from the rear; by the time I set my brakes “my car stopped some thirty feet or so from where I was struck”; I was moving very slowly at the time my car was struck; my car didn’t appear to be damaged at all.

A city policeman, who arrived at the scene shortly after the collision, testified: I found the two cars entangled; it did not appear that appellant’s vehicle had moved any substantial distance after the impact; it appeared to have stopped on impact. He further stated that appellee appeared to be drunk at the time but later learned this was not true, and that he had been taking medicine for an ailment.

Appellee, in substance, testified: The turn at the end of the bridge had been completed but before we got leveled out appellant stopped Ms ear and I couldn’t stop, so I swerved to the right to avoid hitting him hut my left front fender caught his right hack humper; appellant gave no signal that he was going to stop; his car was not knocked forward, hut stayed right where they hit and they stayed there until the policeman arrived; both cars were traveling between twelve and fifteen miles per hour.

The above conflicting testimony presented a question of fact for the jury to resolve. On appeal we view the evidence “in the light most favorable to the jury verdict”, as stated in Whiteside v. Tyner, 238 Ark. 985 (p. 987), 386 S. W. 2d 239. Therefore, in view of the above, we are unwilling to say there was no substantial evidence to support the jury verdict in this case.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Albert HARRIS v. STATE of Arkansas
    5314
    425 S. W. 2d 293
    Opinion delivered March 11, 1968
    [Rehearing denied April 8, 1968.]

      George Howard, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant Albert Harris received a death sentence in April 1963. That sentence was here affirmed in Trotter and Harris v. State, 237 Ark. 820, 377 S. W. 2d 14 (1964). Certiorari was denied by the United States Supreme Court. Shortly thereafter, Jackson v. Denno, 378 U. S. 368 (1964) held that Jackson’s case should be remanded because the same jury passed on both his guilt and the voluntariness of his confession. On the strength of that pronouncement in Denno-, Harris filed a petition in the United States District Court, alleging error because the record in his trial showed that the voluntariness of his alleged confessions, together with the question of guilt or innocence, were submitted to the same jury. Pursuant to the directive of the Federal Court, the State trial court conducted a hearing to determine the voluntariness of Harris’ oral admissions. Harris brings this appeal from an adverse ruling.

It is not necessary to reconstruct the entire case. The facts are detailed in our Trotter and Harris decision. We are here concerned with two rather brief instances in which Harris is alleged to have made admissions pointing to his guilt. The first episode occurred at his home just before daylight and about four hours after the rape. As a result of there being questioned by officers, Harris was placed under arrest for investigation and taken to the city jail in Monticello. About two hours later he was there questioned by Jerry Wilson, the escort of the rape victim, who went to the jail for the purpose of identifying the prisoner. For clarity the testimony concerning those two episodes will be discussed in sequence.

1. The Incident at the Harris Home. After apprehending Trotter, the officers received information that Harris and Trotter had been together that night. Two men were alleged to have committed the crime in concert. Sheriff Towler, State Patrolman Griffin, and City Officer Newton proceeded to Harris’ home in Monticello. They had no search warrant. Harris and his wife were in bed and the lights were out. After several knocks on the door the wife responded and the officers entered. There is considerable variance between Harris’ and the State’s version of the conversations and transactions.

Harris was his only witness at the Denno hearing. The essential parts of his testimony were as follows:

“That morning when they come to my house and knocked on the door, my wife opened the. door and they just came on in. Ain’t nobody asked them in. I was laying on the bed .... Lieutenant Griffin . . . said ‘nigger, get up out of that bed.’ I just got up and he had his hand in his coat pocket and I seen a pistol. The Sheriff told him that there ain’t going to be no rough stuff .... The Sheriff, he said he knew my wife, he said he’s been knowing her so many years and wanted to talk to us private. . .. We went back in the kitchen and closed the door. He said ‘Albert, you are in a bad fix.’ I said, ‘Mr. Jack, what do you mean by a bad fix?’ He said that Trotter said that me and him attacked Joyce Binns. ... He told me, ‘Trotter is a bad boy, he’s getting’ into trouble all the time.’ He said, ‘I can help you, but I can’t help him.’ ... I said, ‘I want to see an attorney.’ He said, ‘Well, you give me time and you’ll see one.’ He never advised me of no kind of rights at all. He told me, he said, ‘If you want any help, you got to cooperate with me.’ I said, ‘I don’t see why I have to cooperate with you when I haven’t done anything. I’ve been in bed with my wife.’ . . . He told my wife, ‘I’m going to take him down to the city hall and I’ll bring him right back.’ He said he was carrying me down for investigation. ... I haven’t seen no watch, no more than my wife’s watch. . . I didn’t have no watch in my wallet in the first place. ... I never admitted nothing to no one. ’ ’

On cross-examination Harris testified he was not struck; no one cursed him; the Sheriff did not speak disrespectfully; and the discussion was in normal tones.

The 'State offered as witnesses the three officers who went to the Harris home. The Sheriff’s version was that the wife, who answered the door, was advised that they wanted to talk to her husband and that she invited them in the house; the Sheriff had known Harris’ wife a number of years; Harris propped himself in bed and the Sheriff inquired where he had been during the night and with whom he came home; Harris replied that he had been to Dermott and had ridden back to Montieello with one Sonny Hall; the 'Sheriff asked to see the clothing he had worn during the night; Harris pointed to a pair of trousers on a hanger in the corner; inspection disclosed that they had not been recently worn; Harris was admonished to produce the right clothing; he got out of bed and started to the kitchen and the Sheriff and Harris’ wife followed; Harris picked up a pair of trousers from a table and handed them to the Sheriff; blood was observed on the fly of the pants; when the Sheriff took the pants he felt a billfold in the pocket with a “bulge” in it. The bulge proved to be a lady’s wristwatch. Harris’ wife stated that it was not her watch; at that point the Sheriff told Harris the presence of the watch required “some explaining”; the Sheriff told Harris “he didn’t have to tell me anything and that if he did it probably would be held against him in court”; Harris said he wás willing to tell him and explained that he received it from Orion 'Trotter; he admitted he was with Trotter at the time of the crime; that the two of them put Joyce Binns in Trotter’s car and drove away; he said he drove the car bnt denied having raped the girl; the Sheriff then opened the door and called in the other two officers; in their presence he again advised Harris of his rights and asked Harris if he would repeat his statement.

Officers Newton and Griffin corroborated the testimony of Sheriff Towler. Officer Newton’s testimony varied with that of Towler and Griffin with respect to Sheriff Towler having a private conference with Harris. Newton’s best recollection was to the effect that all present heard the first conversation; however, he conceded that the lapse of time (four years) conld have well affected his recollection of details. The only difference of note is that Sheriff Towler made no reference to suggesting to Harris that he could talk to a lawyer; on the other hand, the other two officers testified they heard the Sheriff so advised Harris.

2. The Incident at the City JaAl. After being questioned at his home, Harris was taken to the Monticello city jail at approximately six o’clock of the same morning. There Officer Newton was placed in charge of the prisoner. Harris testified the cell was comfortable and he was not abused.

Jerry Wilson, a college senior and escort of Miss Binns, was treated for injuries received in resisting her assailants and was discharged. He learned of Harris’ arrest in approximately two hours after Harris was jailed. Apparently on his own initiative he went to the jail to see if he could identify the accused. Jerry testified that he was admitted “reluctantly” by Officer Newton.

“. . . I looked through the door at the defendant Harris. I asked him had he ever seen me before. He said, ‘Yes, I saw you last night.’
“Q. That was your conversation?
“A. Yes, it was. I asked him again if they planned what had happened and he said, ‘No, we didn’t.’ ”

The only other statement Jerry recalled was by Officer Newton. As the two men were about to leave the jail, Newton advised Harris to stand away from the window “for his own safety.” Officer Newton corroborated all of Jerry Wilson’s testimony. The only variance in their versions of the incident was that Newton said he gave the admonition about Harris standing in front of the window before Harris’ conversation with J erry.

Harris gave a different version of the incidents at the jail. Summarizing, he said when he was brought to jail, Newton told him to “stay away from the window if you don’t want your head blowed off, because people are mad around here”; shortly, Jerry Wilson came to the jail “and was raising sand”; Newton took Jerry by the arm and opened the door to where Harris and Jerry could see each other. Harris continued:

“. . . The white boy asked did I know him and I said, ‘No, this is the first time I ever seen you.’ He said, ‘You don’t know me from last night?’ I said, ‘How can I know you. I was at home.’ . . . Officer Newton told me, lie said, ‘Be sure and stay away from that window, because people around here is mad.’”

It was conceded that no “warnings” were given Harris as a preface to the two questions propounded by Jerry Wilson. Officer Newton was in uniform and armed.

When the voluntary nature of a confession is disputed on federal constitutional grounds, the weight ordinarily given to a factual determination by the trial judge cannot be applied. It becomes the duty of the appellate court “to examine the entire record and make an independent determination of the ultimate issue of voluntariness.” Davis v. North Carolina, 384 U. S. 737 (1966). That does not mean that the findings of the trial judge must be shunned. They are entitled to considerable weight in resolving evidentiary conflicts and to respectful consideration on the crucial issue of voluntariness. However, that respect cannot be permitted to frustrate the independent responsibility of the appellate court to determine the voluntariness of a confession. See Haynes v. Washington, 373 U. S. 503, 515 (1963). Because of the recited requirements we have searched the entire record and narrated the essential testimony.

The prerequisites for the admission in evidence of any statements made by a defendant when he is in custody of officers are found in Boyd and Byrd v. State, 230 Ark. 991, 328 S. W. 2d 122 (1959). There is a presumption that it is involuntary; and the burden is on the State to show the statement to have been voluntary, that is, freely and understandably made without hope of reward or fear of punishment. In making those determinations the court looks “to the whole situation and surroundings of the accused.” Although Miranda v. Arizona, 384 U. S. 436 (1966), was subsequent to the defendant Harris’ trial, the nonretroactivity of Miranda “does not affect the dity of courts to consider claims that a statement was taken under circumstances which violate the standards of voluntariness which had begun to evolve long prior to our decisions in Miranda and Escobedo . . Davis v. North Carolina, supra.

The record in this case has been examined in light of all the cited precedents and we are convinced that the trial court was correct in holding Harris’ statements to have been voluntary. Further, we have examined the cases, state and federal, cited by appellant. Those cases were reversed because confessions were tainted with such incidents as prolonged questioning, inspiring fear, questioning mentally retarded persons, and holding out hope of clemency. Appellant relies heavily on Payne v. State, 231 Ark. 727, 332 S. W. 2d 233 (1960); and Payne v. Arkansas, 356 U. S. 560 (1958). In Payne v. Arkansas the court emphasized the totality of treatment of a mentally dull 19-year-old youth. He was arrested without a warrant, did not have a hearing before a magistrate, was not advised of any rights, held incommunicado for three days, denied food for long periods, and was told that a mob was approaching.

A comparison of Harris’ overall situation with that of Payne is appropriate. But first we must resolve the conflict in evidence. For three reasons we think the State’s evidence is more credible: (1) To say that Harris, under his own testimony, ever became excited, would be without foundation; (2) he was contradicted in most of his accusations of mistreatment by from two to three witnesses; and (3) the trial judge is “closest to the trial scene and thus afforded the best opportunity to evaluate contradictory testimony.” Haynes v. Washington, supra.

Harris ’ age and education are not shown in the record. It does show him to have been a married man. The manner in which he conducted himself under examination leaves no doubt as to his mental alertness. Harris’ arrest and the search of his apartment are discussed in Trotter and Harris v. Stephens, 241 F. Supp. 33 (1965). Harris attacked the legality of his arrest and the search. Judge Young rejected both points, and we think correctly so. ¡With reference to being advised before making any statement, three witnesses testified Harris was informed that he did not have to make any statement and that if he did, that statement could be used against him in court; and that after being so advised, Harris stated he was willing to explain his participation. Further, two witnesses testified that he was asked if he wanted to first talk to a lawyer. Unlike Payne, Harris made his statements in the course of brief questioning. There is no credible evidence of threatened mob violencebJEEarris was advised at the jail to stand away from the window for his own safety. That precaution could just as well have been motivated by the enormity of the crimes which .had been committed, namely, the armed robbery of two persons and the criminal assault of one of them. If Harris heard or saw a crowd he did not so testify. Officer Griffin was asked by Harris’ counsel whether people were milling around outside. He answered, “Just some people out there. I don’t think there were too maily at that time.”

Appellant contends that his statements at the city jail were induced by threats of mob violence, and further that he was not advised of his right to remain silent. When Jerry Wilson, a private citizen as opposed to an officer, went to the jail to see Harris, it was for the purpose of identification. 'We have not been cited to any rule of law which would require that Harris be informed that Jerry was about to ask him a question. If Jerry had an intent at the time he entered the jail to ask a question, we are convinced that Officer Newton was not aware of it. In fact, Jerry requested “to see the little Negro.” Notwithstanding Harris testified Jerry came in “raising sand,” no fear was aroused in Harris. He testified that he told Officer Newton to “let him on in the cell.”

Other than questioning the voluntariness of Harris ’ admissions, only one other point is raised. Sheriff Tow-ler’s death intervened between the jury trial in 1963 and the Denno hearing in 1967. The trial judge permitted the introduction of Sheriff Towler’s testimony which was given at the trial. Harris was adequately represented at the 1963 trial and his counsel had the opportunity to cross-examine the Sheriff. Harris’ present counsel contends that his inability to cross-examine Sheriff Towler at the hearing deprives his client of due process. We are cited no authority. All the statutory requirements for the admission of testimony from a prior trial were present. The original transcript was introduced, the death of the witness was established, the defendant and his counsel were present at the 1963 trial, and they had the opportunity to cross-examine the witness. Ark. Stat. Ann. § 28-713 (Repl. 1962).

Affirmed.

Byrd, J., disqualified and not participating.


text:
    CITY OF LITTLE ROCK v. Robert MARTIN
    5-4503
    424 S. W. 2d 869
    Opinion delivered March 11, 1968

      City Attorney, Joseph C. Kemp; Perry Whitmore, Asst. City Attorney, for appellant.

      Spitzberg, Mitchell & Hays, for appellee.
   Lyle Brown, Justice.

Robert Martin, for forty-four years a nonuniformed employee of the City of Little Rock, instituted this action to recover disability retirement benefits as provided by city ordinances. The chancellor awarded Martin 44.3 months disability pay and the City appeals. The City here contends that the disability payment authorized by the ordinances is a mere gratuity to be paid a disabled employee only if the City adjudged the payment to be warranted.

Ordinance No. 6775 was adopted in 1945. It “announces and adopts the following policy and procedure for those employees who, because of permanent disability, retire from the city’s employ.” Continuing, the ordinance states that a nonuniformed city employee who is compelled to retire because of sickness, or because of permanent disability growing out of an injury incurred in line of duty, shall be retained on the payroll. The period of retention is fixed at a number of months equal to the number of years of service.

Ordinance No. 10783 was enacted in 1958. It reiterated the policy of the City to continue to pay disabled employees of the nonunifoumecl group as in the past “until such time as a better retirement plan is adopted. ” It is there required that the retiring employee fnrnish a certificate from his physician and submit to examination by the city health director. The latter must approve the request for retirement. The approval by the city health director could only mean that the director must find the employee physically disabled.

The City has not subsequently adopted any retirement plan to cover nonuniformed employees who are compelled to retire because of sickness or injury. It did, by resolution in 1960, approve a group retirement plan funded by an insurance company. The City and its employees pay the premiums and it enables participating employees who attain 65 years of age and meet other requirements to draw retirement pay. The insurance program is not a sickness and disability retirement plan and therefore does not affect the provisions of the recited ordinances. The plan is here mentioned because the City, in denying Martin’s claim, stated (through its manager) as the reason “that there was no city policy to pay employees who have regular retirement.” Martin was eligible to draw under the insurance plan at the time of his retirement. For reasons not here pertinent, Martin elected to take a lump sum payment, which amounted to a return of his premiums and a small rate of interest.

Martin supplied the City with a letter from his physician and submitted to examination by the public health director. The diagnosis was osteoarthritis, chronic and generalized arteriosclerosis, and “rapid and forceful heart beat.” The health director stated Martin’s condition to be chronic and progressive and ended with this conclusion: “I doubt that he can continue his present occupation.” It was the duty of ¡Coy Adams, City Personnel and Civil Service Director, to examine the documents, calculate the employee’s years of service, and transmit the information to the city manager. Mr. Adams testified that Martin conformed to, and met, all procedural requirements. Mr. Adams informed the city-manager that ‘ ‘Robert ought to have his disability retirement. ’ ’ It was stipulated that Martin duly conformed to required procedures and that “he was compelled to ,retire from his employment due to sickness and permanent disability to perform his job.”

Only one point for reversal is properly raised. Appellant contends that the lower court erred in ruling that Robert Martin is entitled to the 44.3 months disability pay as provided by the recited ordinances. Before discussing that issue we point out that generally before a board’s decision will be reviewed it must be alleged that the board has acted arbitrarily. Dunn v. Dauley, 232 Ark. 17, 334 S. W. 2d 679 (1960). Appellee failed to allege in his complaint arbitrariness or capriciousness on the part of the Board. However, since appellants have at no time raised that point it is deemed waived.

We revert to the only reason shown by the trial record for disallowing Martin’s claim, namely, not to pay employees who are eligible for old-age retirement pay under the insurance plan. The undisputed proof gleaned from the City’s only witness (who was expertly qualified) is that the City has continued to pay disability retirement under the ordinances since the adoption of the old-age retirement plan, i/ncluding those employees who joined the insurance program (old age retirement). So far as the record discloses, Robert Martin is being shunted aside while others in his identical category continue to be paid. We do not hesitate to label that action as creating differences in rights where there is absolutely no difference in situation. That action was condemned in Application of Wallace, 199 N. Y. S. 2d 526 (1960). The ordinances cannot be ravished to the detriment of one qualified employee by a mere resolution of the City Board of Directors which denies only that employee his authorized benefits.

We would emphasize that the single question here presented is whether, as a matter of law, Robert Martin has a vested right to disability benefits. Under the recited ordinances and the undisputed facts, Robert Martin qualified himself to be maintained on the payroll of the 'City of Little Bock for a period of 44.3 months from November 30, 1966, subject to approval of the Board of Directors. Since the Board’s approval was denied arbitrarily, we hold that beginning with that date Martin became entitled of right to each periodic installment as it accrued, that obligation to continue at least so long as the ordinances remain in force.

Affirmed as modified.


author: John A. Fogleman, Justice.

text:
    Sarah K. GIBSON v. Elizabeth (Scott) GIBSON
    5-4471
    424 S. W. 2d 871
    Opinion delivered March 11, 1968

      Arnold, Hamilton & Streetman, for appellant.

      John F. Gibson, for appellee.
   John A. Fogleman, Justice.

This is a suit by the former wife of J. A. Gibson II against his present spouse seeking to recover damages for alienation of his affections. It was filed July 23, 1964. In Gibson v. Gibson, No. 5-3904, 240 Ark. 827, 402 S. W. 2d 647, it was held that the five-year statute of limitations was applicable in this case. Upon remand, appellee filed a motion to dismiss upon the ground that the cause of action was barred by this statute of limitations. This appeal is from the order of the trial court granting that motion.

The gist of an action such as this is loss of consortium, which includes the husband’s society, companionship, love and affection, and aid. Weber v. Weber, 113 Ark. 471, 169 S. W. 318; Watson v. Davidson, 141 Ark. 591, 217 S. W. 777; Hammond v. Peden, 224 Ark. 1053, 278 S. W. 2d 96. The cause of action accrues when this loss occurs without reference to. the date of the words or acts causing the loss. Miller v. Miller, 165 Md. 425, 169 Atl. 426 (1933).

Appellant alleged in her complaint that appellee engaged in acts of enticement and inducement directed toward J. A. Gibson II between January 1958 and June 1962, for the purpose of alienating his affections, resulting in abandonment of appellant, the institution of a suit for divorce by him, and the dissolution of the bonds of matrimony between them on June 29, 1962. A specific allegation is made with reference to conduct of appellee between August 3 and August 8, 1959, said by appellant to have been adulterous.

Prior to the filing of the motion appellant had admitted, in response to a request by appellee, that her former husband ceased to occupy the marital bed with her sometime in June 1958. She said, however that he neither left nor deserted their home then, but continued to reside with her for some period thereafter. She also admitted that he instituted a divorce suit on January 29, 1959, but stated that she felt and believed that a reconciliation could and would be effected, until the alleged acts in August 1959. She also stated that a divorce decree granted her husband December 18, 1960, was reversed and ultimately a divorce was granted her. In response to an additional request for admissions, appellant admitted that Gibson left the marital bed on or about June 13, 1958, but that she had no knowledge at that time that he intended to permanently abandon the home. She stated that he was in the home on numerous occasions, taking meals and occupying a bed until August 1959. She reiterated her belief that there was a possibility and hope of reconciliation until the August 1959 occurrences.

Hearing was held upon objections of appellee to these responses and a motion by her to require that appellant’s complaint be made more definite and certain. The court overruled the motion and ordered the taking of a discovery deposition of appellant. In this deposition appellant stated that she had not slept in the same bed with her former husband since June 12, 1958, and that they had not cohabitated as husband and wife since that date. She admitted that he had not kissed her since that time, but said that up until his marriage to ap-pellee, the meals he had eaten at their home were too nuimerous to count and named specifically Christmas and birthdays of children as special occasions. She testified that while they had not occupied the same bed at the same time, G-ibson had slept in their bed and she had seen him asleep in bed with the children at the home both day and night. She did not recall having seen him with his clothes off on any of these occasions. According to her testimony when Gibson, took a suitcase and left home on June 13, 1958, he said he was leaving because he had to get away for a while to think. She further stated that since that date they had discussed the possibility of his return to live with her as his wife, that he had asked permission to come to the home where she was residing many times, that she had tried to persuade him to come back and that he had actually come to the house many times, but not to live with her as his wife. She claimed to have first learned of adultery in August 1959. She said that she hoped and believed a reconciliation was possible until August of 1959 and actually until Mr. Gibson married appellee.

The plea of the statute of limitations must be raised by answer or demurrer. It can be raised by demurrer only when the pleading to which the demurrer is taken clearly shows that the cause of action is barred. Herpin. v. Webb, 221 Ark. 798, 256 S. W. 2d 44. Where the bar of the statute of limitation does not appear upon the face of a complaint, the issue cannot be raised by demurrer. Cranna v. Long, 225 Ark. 153, 279 S. W. 2d 828. It cannot be raised by demurrer unless the complaint shows not only that sufficient time has elapsed to bar the action, but that there are no facts or grounds for avoidance of the statute. State v. McIlroy, 196 Ark. 63, 116 S. W. 2d 601; Rogers v. Ogburn, 116 Ark. 233, 172 S. W. 867. For example, it was held that a complaint to cancel a contract for fraud, which did not indicate when the plaintiff discovered the fraud, did not show on its face that the cause of action was barred by limitations. Driesbach v. Beckham, 178 Ark. 816, 12 S. W. 2d 408. If appellee’s motion to dismiss was considered as a demurrer, it should have been overruled as there is nothing in this complaint which shows that the cause of action was barred.

Generally, where the facts in a complaint do not show the action is barred by the statute of limitations, the defense must be raised by answer. Sanders v. Flenniken, 172 Ark. 454, 289 S. W. 485. In a proper case, however, a motion for summary judgment should be granted where it is clearly established that a claim is barred by the statute of limitations. Norwood v. Allen, 240 Ark. 232, 398 S. W. 2d 684. Since a discovery deposition was considered at the hearing of the motion and since appellant’s attorney considered that the proceeding was one for summary judgment when the discovery deposition was taken, it seems that the trial court must have considered appellees motion to dismiss as a motion for summary judgment. But the dismissal of appellant’s complaint whs error because we find that there is a genuine issue of fact as to the time when this alleged cause of action .accrued. According the weight of authority, the statute of limitations begins to run when the loss of affections or loss of consortium is sustained. It begins when alienation is fully accomplished, i. e., when love and affection are finally lost.. See, Annot., 173 ALR, 772, 774. The law presumes that there is always a possibility of reconciliation of husband and wife and this the law encourages. Amellin v. Leone, 114 Conn. 478, 159 Atl. 293 (1932). The mere fact that the spouses separated prior to the acts complained of does not constitute a defense in such actions where they are still married, as there might he a reconciliation. Michael v. Dunkle, 84 Ind. 544, 43 Am. St. Rep. 100 (1882). Since, even after a separation or estrangement, there is a possibility of reconciliation, an action will lie for conduct which prevents a reconciliation. Cooley on Torts, 4th Ed. % 167, p. 8. The actionable offense may consist of conduct which prevents a reconciliation. Cooley on Torts, 4th Ed. § 170, p. 22. A canse of action will not be defeated because a wife was estranged from her husband at the time of illicit relations with the husband, as the marriage relation and rights exist until the parties are separated by death or divorce. Rott v. Goehring, 33 N. D. 413, 157 N. W. 294, Anno. Cas. 1918 A. 643 (1916). See, also, Miller v. Pearce, 86 Vt. 322, 85 Atl. 620 (1912), 43 LRA (n. s.) 332 (1913). One spouse has the right to the possibility of regaining the conjugal society and affection of the other and a third person has no right to intermeddle between them even though they are estranged. 27 Am. Jur. 127, Husband & Wife, § 524.

This court has previously indicated that these marital rights do not survive divorce, by approving an instruction that acts and relationship after divorce of a husband and wife should not be considered as contributing to the alienation of affections. Hardy v. Raines, 228 Ark. 648, 310 S. W. 2d 494. It was said there that testimony as to such acts might, under the circumstances, be considered only as an aid to a determination of relationships prior to the divorce.

Inasmuch as the parties were divorced within five years next preceding the filing of this action, we cannot say that the cause of action is barred as a matter of law. Rather, the jury should determine as a question of fact when appellant lost her conjugal rights, including the right to regain the conjugal society and affection of her husband through reconciliation. We think that under the facts now before the court that this must have been sometime between the separation June 13, 1958, and the granting of the divorce to appellant, but other facts will likely be developed from which, a jury can make a proper determination.

Reversed and remanded for further proceedings not inconsistent with this opinion.

Byrd, J., dissents.


author: J. Feed Jones, Justice.

text:
    Dale E. SCATES and Terrell BLAYLOCK v. STATE of Arkansas
    5326
    424 S. W. 2d 876
    Opinion delivered March 11, 1968

      Harry Robinson, for appellants.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   J. Feed Jones, Justice.

On December 9, 1966, the appellants, Dale Scates and Terrell Blaylock, were charged with the crime of burglary in an information filed by the prosecuting attorney of Pulaski County. They were tried and convicted on July 19, 1967, and have appealed.

The facts briefly are these: On June 4, 1966, at approximately 2:15 a.m., the North Little Rock police were advised that a burglary was in progress at the Southern Grill, 18 Railroad Avenue. Upon arrival at the cafe, the police found Terrell Blaylock, one of the appellants, inside the restroom of the cafe, behind the door, with a tire tool on the floor behind him. The owner of the cafe was called and she unlocked the back door. The officers searched the cafe and the appellant, Dale Scates, was found hiding under a raincoat in the kitchen inside the cafe. A window had been broken out about eight feet above ground level over the front door of the cafe and was of sufficient size to allow a man to enter through it. All doors were locked and the broken window was the only means of entrance found. An automobile belonging to appellant Blaylock’s mother was found parked behind the building. The cafe owner testified that nothing inside the cafe was missing or broken into, but _also testified that appellants had no permission to be inside the building.

Appellants were arraigned on January 4, 1967, and were informed of the nature of the charge against them. They entered their pleas of not guilty, waived a jury trial, and the eases were set for a court trial on July 19, 1967. At the trial on July 19, 1967, the court found the appellants guilty of burglary and they were sentenced to two years each in the state penitentiary. On appeal to this court appellants urge the following three points for reversal:

“There is no proof or semblance of proof in the record that the defendants entered the place at 18 and Railroad, North Little -Rock, with the intention to commit a crime.
“The Court should have granted a continuance.
“The Court abused its discretion in refusing to .give the defendants a jury trial.”

As to the first point, we find no merit in appellants ’ contention that there is no proof of the requisite intent to commit a crime. Ark. Stat. Ann. § 41-1001 (Repl. 1964) defines burglary as follows:

“Burglary is the unlawful breaking or entering a house, tenement, railroad car, automobile, airplane, or any other building, although not specially naimed herein, boat, vessel or water craft, by day or night, with the intent to commit any felony or larceny.”

And Ark. Stat. Ann. § 41-1002 (Repl. 1964) provides as follows:

“The manner of breaking or entering is not material, further than it may show the intent of the offender.”

This 'court in the case of Clay v. State, 236 Ark. 398, 366 S. W. 2d 299, said:

“We have held that the offense of burglary is complete' even though the intention to commit a felony is not consumated, Thomas v. State, 107 Ark. 469, 155 S. W. 1165, and eases cited therein. * * * As stated in Duren v. State, 156 Ark. 252, 245 S. W. 823, ‘It is not essential that the state prove by direct evidence an intention to commit a felony, for this fact may be, and generally is, established by proof of circumstances which indicate the intention of the burglar. . .”

In the case at bar, we are of the opinion that a larcenous intent can fairly be inferred where the appellants were discovered, one with a tire tool and the other hiding under a raincoat, at 2:15 a.m. inside a locked cafe containing amusement and vending machines, and when they had no permission or lawful right or reason, to be inside the cafe. We are of the opinion that the correct law and proper conclusion was stated in the words of the trial court, as follows:

“I can assume their intent from their actions of being in the place in the middle of the night without permission, and with a tire tool. The logical conclusion would be that they hadn’t had time to break into those machines, because I understand the officers’ testimony was that somebody gave them a call about them breaking in just about the time they broke in the place, and they hadn’t been in there long enough to do anything.”

Appellants’ second point is based on their contention that a continuance should have been granted because one of the attorneys for appellants was employed only two or three days before the trial and that the prosecuting attorney had not assented to a waiver of trial by jury under Ark. Stat. Ann. § 43-2108 (Repl. 1964), which provides:

“In all criminal cases except where a sentence of death may be imposed, trial by a jury may be waived by the defendant, provided the prosecuting attorney gives his assent to such waiver. Such waiver and the assent thereto shall be made in ©pen court and entered of record. In the event of such waiver, the trial judge shall pass both upon the law and the facts.”

With this contention we cannot agree. The docket shows that the appellants were represented by counsel at their arraignment on January 4, 1967, some _ six months prior to the trial, and that the appellants waived a jury trial with their counsel present. Although the record does not specifically set out that the prosecuting attorney affirmatively gave his assent, it does show that an assistant prosecuting attorney was present and did not object to the waiver, nor did counsel for appellants object to the absence of the prosecuting attorney’s affirmative assent at that time. Furthermore, the proviso for the prosecuting attorney’s assent is for the benefit of the state, and not the defendant who waives his right to a jury trial. Therefore, any error as a result of the prosecuting attorney’s failure to assent to a defendant’s waiver of his right to a jury trial would be an error against the state and not against the appellants. The prosecuting attorney’s failure to assent to appellants’ waiver of a jury trial does not constitute error prejudicial to the appellants and does not constitute error of such nature that appellants can complain. We have so often held that the granting of a continuance is within the sound discretion of the trial court, that citation of cases is not necessary. We cannot say that the trial court abused its discretion in the case at bar.

Under appellants ’ third point, they contend that the trial court erred in failing to allow appellants to withdraw their waiver of a jury trial. The motion to withdraw the waiver was not made until the date on which the trial was set, and the trial court denied the motion as being too late. We fail to find error in this holding.

While the Arkansas 'Constitution provides in Article 2, Section 7, for the right of trial by jury, it also provides for waiver of this right under the same provision in accordance with Ark. Stat. Ann. § 43-2108, supra. After the defendant’s right to trial by a jury has been duly waived, as in the case at bar, it is within the discretion of the trial court to permit or deny a withdrawal of such waiver.

The authorities are uniformly to the effect that a motion for withdrawal of waiver made after the commencement of the trial is not timely and should not be allowed. Whether the motion is timely when made prior to the actual commencement of the trial, is held to depend upon the facts and circumstances of the individual case. (See annotation in 46 ALB 2d 919 and cases there cited.)

In the case at bar, appellants made their waiver at a time when they were represented by counsel and some six months prior to the date set for trial. When this case came on for trial by the court, Mrs. Myrtle L. Wallace, who owned the cafe which had been burglarized, appeared in behalf of the appellants and recommended that the cases be dismissed. She had previously recommended suspended sentences. On this point Mrs. Wallace testified:

“Q. What are your wishes about the matter? Do you wish to prosecute them?
A. Well, they haven’t harmed me. I don’t want to cause them any trouble. I think they are sorry.”

The appellants in this case were charged with the commission of the crime of burglary “against the peace and dignity of the State of Arkansas,” and not against the peace and dignity of Mrs. Wallace or the owner of the premises burglarized. The criminal laws of this state against burglary were not enacted for the benefit of Mrs. Wallace or any other particular individual or property owner, but such laws were enacted for the protection and benefit of the entire community. It was not necessary for the trial court to even hear, or consider at all, the recommendations of Mrs. Wallace in this case, hut since the trial court apparently did consider the recommendations of Mrs. Wallace, the court was justified in taking judicial notice of previous burglary convictions of both of the appellants in considering the recommendations made by Mrs. Wallace.

Appellants did not seek a continuance nor did they attempt to withdraw their waiver of a jury until after the trial court refused to follow the recommendations of Mrs. Wallace on the day previously set for the trial of the case. The record bears out the trial court’s lack of prejudice against appellants because of prior convictions. Both appellants were given minimum sentences of two years in the penitentiary when the statute provides for a maximum of twenty-one years. Ark. Stat. Ann. § 41-1003 (Bepl. 1964).

The judgments are affirmed.


author: Conley Byrd, Justice.

text:
    O. U. GREEN et ux v. Edwin P. HIGGINS et ux
    5-4416
    424 S. W. 2d 882
    Opinion delivered March 11, 1968

      Murphy & Burch, for appellants.

      Hugh R. Kincaid, for appellees.
   Conley Byrd, Justice.

This boundary dispute between appellants, O. U. Green et ux., and appellees, Edwin P. Higgins et ux., revolves around the location of the Wyman and Elkins Public Road in the SW 14 of the NW^ of Sec. 14, T 16 N, R 29 W, in Washington County, Arkansas.

The record shows an 1880 conveyance to Round Mountain School trustees of a portion of the said SW 14 NW 14 of Sec. 14 described as commencing 8 Rods South of NW corner, thence 20 Rods South, thence 16 Rods East, thence 20 Rods North, and thence West to the place of beginning. Thereafter Thomas C. Hastings, a common owner of both parties, on May 31,1915, conveyed by warranty deed to J. M. Jackson as follows:

“Part of the South West (14) of the South West (14) of Section (14) fourteen Township (16) Sixteen Range (29) West Beginning at the Corner Stone at S. W. of the S. W. of Section 14 as aforesaid, Running East 40 Rods to the ‘Senter’ of the road then North Westerly along the road (58) Rods to the School ground then West (16) Rods to the Section Line then South to Corner or place of Beginning.” (Emphasis supplied.)

That instrument was acknowledged before B. N. Wood, a Justice of the Peace. Thereafter before a Notary Public, on August 3, 1918, Hastings quitclaimed to W. M. Meredith the following lands:

“A part of the South West quarter of the North West quarter of Section Fourteen (14), Township Sixteen (16) North, Range Twenty, nine (29) West and more particularly described as — Beginning at the South West corner of said forty acre tract and running thence East Forty (40) rods, more or less, to the center of the Wyman and Elkins Public Road as the same now runs; thence in a North Westerly direction following the center of said Road, to the School House grounds, thence due West Sixteen (16) rods, more or less, to the West line of said forty acre tract and thence South Fifty two (52) rods, more or less, to the South West comer of said forty acre tract, the place of beginning — containing nine (9) acres, be the same more or less.”

The quitclaim deed to Meredith obviously was given to correct the erroneous quarter section description in the deed to Jackson.

Appellants acquired their title to the lands here in dispute under the identical metes and bounds description set-out in the quitclaim to Meredith.

On June 25, 1918, Thomas 0. Hastings conveyed by warranty deed to Geo. Bartle under the following description:

“. . . and the South West quarter of the North West quarter of Said Section — Except two acres out of the North West Corner of Said Forty acre Tract occupied as School house property and also Except the following tract of land, to-wit. Beginning at the South West Comer of said Forty acre Tract, running thence East Forty Rods to the Center of the road; thence North Westerly with the road fifty Eight rods to the School ground; thence West Sixteen rods to the Section line, thence South to the Place of Beginning, ...”

All conveyances of the lands in appellees’ title were made with this description until 11/17/1933 when N. W. Smith conveyed to Cora Lovelace under the following description:

“A part of the Southwest quarter of the Northwest quarter of Section Fourteen (14), described as follows, to-wit; beginning at a point which is forty (40) rods West of the South East corner of said forty acre tract, and running, thence North sixty-three (63) rods to the center of public road; thence West with the center of said road nineteen and one-half (19%) rods; thence Southwesterly seven (7) rods to the South East corner of the school ground; thence West with South line of School ground seven and three-fourths (7%) rods to center of another public road; thence Southeasterly with the center of said road fifty-eight (58) rods to the place of beginning, containing eig’ht (8) acres, more or less; . . .’

Conveyances thereafter carried this description up to and including a deed dated 12/20/60 from W. B. Higgins et ux. to appellees. For some reason not explained by the abstract of the record, W. B. Higgins et ux. on 8/18/65 again conveyed to appellees under the following description:

“. . . Part of the Southwest quarter of the Northwest quarter of Section 14, in Township 16 North, of Range 29 West, described as beginning 40 rods west of the South East corner of said forty acre tract, and running, thence North 604.5 feet, more or less, to Myers South line; thence West 321.75 'feet, more or less to the existing Wyman And Elkins Public Road; thence Southeasterly with said road to the point of beginning. Also, beginning at a point on the South line of a Public road which is 1039.50 feet North and 981.75 feet West of the South East corner of said forty acre tract, and running, West bearing South with said road 115.50 feet to the SE corner of the School Ground Lot; thence continuing Westerly with said road 127.875 feet to the Existing Wyman and Elkins Public Road; thence Southeasterly with said road to a point due South of the point of beginning; thence North to the point of beginning. ’ ’

The only ownership claimed by appellees in this litigation is in the foregoing described lands. However, it will be noted that the Wyman to Elkins Public Road is the common boundary between the lands of appellees and their predecessors in title holding under Thomas C. Hastings, and those of appellants and their predecessors in title holding under the same common owner.

Some two 'years before appellees commenced this suit, appellants employed an engineer to survey their lands. He found that the center line of the existing county road from Wyman to Elkins crossed the southern boundary of the forty-acre tract 500 feet east of the SW corner and 820 feet west of the SE corner thereof. He also found that it meandered northwesterly until it crossed the southern boundary of the school prop¿rty at a distance of 7.75 rods or 127.87 feet west of the SE corner of the school lot. He also discovered what he considered to be an old abandoned roadway which crossed the southern boundary of the forty-acre tract at a point 40 rods or 660 feet east and west of the respective SW and SE corners of the forty and meandered northwesterly to the SE corner of the school lot. Based upon the premise thát the surveyor had found an old abandoned road which coincided with the metes and bounds descriptions, appellants erected the fence along the same which precipitated this litigation.

William Duncan, age 86, testified that he had been acquainted with the Wyman-Elkins Road since 1900 and that it still ran in the same place that it had run every since he could remember. He referred to the old abandoned road found by the surveyor as a pathway used by “foot-backers” and folks on horseback when the regular road got muddy. He had never seen a vehicle on the old road or pathway. The southernmost end of the path left the “Wyman-Elkins Road pert near a quarter of a mile south of the schoolhouse, southeast.”

Mrs. Fannie L. Calico, who has lived at Round Mountain for 65 years, testified that the Wyman-Elkins Road still ran the same place that it had run ever since she could remember, and that there was a path from the east side of the school ground that went up across the mountain and came out over there at a little store, but that it was at no time the Wyman-Elkins Road. Cows were driven down the path and it was a by-pass for school children when the main road was muddy.

Roxie Hastings Campbell, daughter of Thomas C. Hastings, testified that the Wyman-Elkins Road had always been located at the same place it is today. She stated that her father had sold the land on the southeast side of the Wyman-Elkins Road to Jackson. She referred to what the surveyor thought was an old abandoned roadway as a footpath across the hill, and was definite in stating that her father owned the land between the path and the Wyman-Elkins Road.

Witnesses on behalf of appellants stated that they had ridden horseback over the old abandoned road found by the surveyor and that they had seen wagons using it. They also stated that they had never heard the present public road referred to as the Wyman-Elkins Road until this lawsuit came up. Neither had they heard the surveyor’s old road referred to as the Wyman-ElHns Eoad.

The chancellor found that the present existing county road was the “Wyman-EUdns Eoad” and that it was the. common boundary between the parties’ lands.. This finding is not contrary to a preponderance of the evidence.

Appellants point out that under the facts as developed, appeUees’ metes and bounds description, beginning with the deed from N. W. Smith to Cora Lovelace, lacked 160 feet in coming to a close, since the center of the road is 820 feet west of the SE corner of the forty and the point of beginning is only 40 rods or 660 feet west of the SE corner.

In contending the chancellor was in error, appellants make the following argument:

“The property description in appellants’ deed is four-sided. The beginning point is the Southwest corner of the Southwest Quarter (SW %) of the Northwest Quarter (NW/^) and the first call extends forty (40) rods East. This point is same as the point of beginning in the appellees ’ description, which is forty (40) rods West of the Southeast corner of the same forty (40) acre tract. The Court will take judicial notice that a quarter section is eighty (80) rods on each side, there being no evidence to the contrary. This places the appellants’ Southeast corner and the appellees’ point of beginning in the exact identical spot. The appellees ’ point of beginning is measured from the Southeast corner and the appellants’ from the Southwest corner of the forty (40) acre tract, which further verifies the certainty of this identical point.
“The point of conflict in the descriptions is the Northeast corner of appellants’ property and the Northwest corner of appellees’ triangularly shaped property. Both are, by t heir respective metes and bounds descriptions in the center of ‘a road’ (the appellants in the center of the ‘"Wyman and Elkins Public Road as the same now runs’, and the appel-lees ‘to center of another public road’). According to appellants’ next to last call this point should be 16 rods east of the west side of the forty (40) acre tract, which coincides with the southeast corner of the School Grounds as shown by stipulated Exhibit No. 11. According to appellees’ metes and bounds description the northwest corner of appellees ’ property would fall in the center of the ‘public road.’
Assuming this ‘public road’ is the Wyman-Elkins Road, by measurement, this point varies the 7% rods which is approximately the appellees’ next to last call.”

This argument ignores the fact that the courses and distances in appellants’ chain of title are to and from an ascertainable monument and that consequently the distances given in their deed must yield to the monuments. Rodger v. Grain, 235 Ark. 211, 357 S. W. 2d 527 (1962). For this reason, we hold appellants’contention to be without merit, and need not examine his “next to last call” argument which he bases on Irby v. Drusch, 220 Ark. 250, 247 S. W. 2d 204 (1952). From the whole record, it is obvious that appellants are not entitled to claim any land east of the Wyman-Elkins Road, and that appellees’ predecessors in title owned the lands and were attempting to convey to appellees that land lying immediately east of the road.

Next, appellant argues that the trial court obviously erred because the two triangles described in its decree overlap and the decree encroaches upon the school property. We do not understand the description in the decree as encroaching upon the school property. Furthermore, the overlapping of land calls in appellees’ deed would not prevent the removal of the fence, since the trial court’s only responsibility in this respect would be to determine that appellants had fenced the land of ap-pellees.

Lastly, appellants argue that the trial court erred in requiring them to meet the same burden of proof as appellees, the plaintiffs below. This argument results from a statement in the chancellor’s memorandum opinion which we do not interpret in the same light as do appellants. Even if appellants were correct in their interpretation of the chancellor’s statement, we would have to find it a harmless error since it went only to the issue of whether appellees owned the land/¡.fenced, and the overwhelming evidence is that appellees owned the lands east of the Wyman-Elkins Boad fenced by appellants.

Affirmed.

       Their contention is to the effect that we should ignore that portion of the last call running .. Southeasterly with the Center of said road...,” and return in a straight line from appellees' northeasternmost call to his point of beginning.


author: Carleton Harris, Chief Justice.

text:
    WEST TREE SERVICE, INC. et al v. Carl D. HOPPER, Employee
    5-4477
    425 S. W. 2d 300
    Opinion delivered March 18, 1968

      Wright, Lindsey & Jennings, for appellants.

      Pecurson & Pearson and Fitton & Meadows, for ap-pellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Carl D. Hopper, appellee herein, was, on December 22, 1965, an employee of West Tree Service, Inc., and was working with a tree-trimming crew near Bentonville, Arkansas, engaged in trimming trees and brush along a telephone company right-of-way. The crew consisted of five persons, including claimant and the foreman, Lee Perry. After eating lunch together, and before returning to work, Perry took a .22 rifle from the truck the men were using in performing the work, and fired it at a tin can; the rifle was then handed to J. C. Jones, an employee, who also fired it, and handed it to appellee. When Hopper fired the rifle, the breech lock slipped, and a shell exploded, causing injury to, and eventual loss of sight of appel-lee’s right eye. Hopper filed a claim for compensation, which was denied by the referee. This finding was appealed to the full commission, which affirmed the decision of the referee, finding that the accident did not arise out of appellee’s employment. On appeal to the Benton County Circuit Court, the commission was reversed, the court finding that the injury did arise out of the employment. From this judgment, appellants, West Tree 'Service and Tri-State Insurance Company, bring this appeal. For reversal, it is simply asserted that the commission’s holding that the injury did not arise out of the employment is sustained by substantial evidence, and the ’Circuit Court, therefore, erred in reversing that finding.

On the aforementioned date, the crew had returned to the job site after having lunch, and Perry took the rifle from the truck (where he had placed it two or three days before) for the purpose of aligning the sights, if this adjustment were needed. He fired the rifle one time. According to Perry, Hopper asked if the others could shoot, and the foreman consented for this to be done. As previously stated, he passed the rifle to one of the crewmen, Jones, who fired it, and Jones then handed it to Hopper, who, upon firing it, received the injury. Hopper denied that he had asked to shoot the rifle, stating that he neither said that he wanted to shoot it or didn’t want to shoot it; however, admittedly, he was not directed to fire it, and he agreed that he could have turned down the invitation to shoot if he had so desired. Most of the workmen testified that the suggestion for firing the gun came from Perry, and they said he gave each man a shell to be used, but it is apparent from the evidence given by the workers that the matter of shooting the rifle was a voluntary act on the part of these employees; i. e., they did not feel that they were being ordered, or compelled, to discharge the firearm. The crew ordinarily took approximately thirty minutes for lunch; on this particular day, that time had been exceeded, but the foreman had not ordered the men back to work. The rifle was the personal property of Perry, and there is no contention by appellee that it had previously been used in any manner by the members of the crew, either.»for recreation, or while engaged in trimming trees and bushes along the telephone company right-of-way.

In reversing the commission, the trial court held:

“The Court further finds that the injury arose out of the regular course of employment in that it would only be natural to expect young men working in the out-of-doors trimming trees to engage in normal recreation during rest periods, which are common and incident to out-of-doors living, including the firing of a .22 rifle.
“The Court further finds that the rifle belonged to the foreman of the claimant and that claimant was encouraged to participate in this form of rest, recreation and relaxation during the rest period and that such rest, recreation and relaxation during the rest period was of benefit to the employer.”

We do not agree. There is nothing in the record to suggest that the company should have expected these employees to shoot at tin cans with a .22 rifle during either a work period or during a lunch break. It might also be pointed out that the evidence is conclusive that this activity had never been engaged in previously. Ap-pellee cites the case of Southern Cotton Oil Division v. Childress, 237 Ark. 909, 377 S. W. 2d 167, which was a case involving the death of an employee while engaging in “horseplay” with a fellow employee. Strictly speaking, this is not a horseplay case, but if it be so considered, there are important distinctions between the two. In the first place, the work had commenced when the horseplay started between Childress and the other employee. In the next place, the instrument that caused the fatal injury was an air hose which was used in the employment. Still further, these employees had previously, on five or six occasions, engaged in these friendly; “scuffles.” It is at once apparent that these circumstances, pertinent to recovery in the Childress case, are not here present, and it might also he added that no fellow employee caused Hopper to receive the injury since the firing of the weapon was a voluntary act on his part.

Appellee seems to depend, in large measure, upon the fact that the foreman was present, participating in, perhaps encouraging, but, at least, acquiescing in the act that precipitated this claim. Let it first he said that we attach no more significance to the fact that the foreman owned the rifle, and first commenced using it, than if it had been one of the other employees. Certainly, the firing of the rifle was not connected in any manner with the work of the crew or the foreman, nor did it in any manner advance the interests, or inure to the benefit, of the "West Tree Service 'Company. Of course, an employer is charged with the knowledge of his representative concerning matters within the scope of employment of the employer’s representative. In Texarkana Telephone Company v. Pemberton, 86 Ark. 329, 111 S. W. 257, this court said:

“Notice to the wire chief (he being a vice-principal) of the dangerous condition of the wires [the telephone lines] was notice to the company.”

As stated in 35 Am. Jur., Master and Servant, §, 364, p. 789:

“ * * * The employer, also, is charged with the knowledge of such representative concerning the condition of the employer’s plant, his appliances, etc., at least so far as that knowledge was gained in the course of employment and the representative is not acting adversely in such way as to rebut any presumption of divulgence to the employer.”

However, the decisive and controlling point in this litigation is how we answer the question, “Did Hopper’s injury arise out of his employment?” The answer is definitely, “No.” Numerous cases are cited by appellants involving injuries to employees sustained from firearms, and where claims for compensation were filed. In these cases, benefits were denied because of the fact that the accident bore no relationship whatever to the nature of the employment. In the Mississippi case of Earnest v. Interstate Life and Accident Insurance Company, 119 So. 2d 782, the appellant was employed by a life and accident insurance company to solicit and sell insurance policies. Earnest drove to the home of a prospect for the purpose of taking him to a doctor for a medical examination (pursuant to selling a policy). The prospect requested appellant to wait until he could shave. While waiting, appellant observed the prospect’s son, with whom he had previously discussed a policy of insurance, working near the barn. He walked a short distance toward the son, then returned to his car, picked up his shotgun, and lifted the gun from the auto, for the admitted purpose of shooting a crow. After taking about four steps toward the son, the gun accidently discharged, and struck Earnest in the left ankle, as a result of which the lower part of the leg had to be amputated. The Workmen’s Compensation Commission denied coverage, and on appeal, the Mississippi Supreme Court affirmed, stating:

“An injury arises out of the employment when there is- a causal connection between it and the job. 58 Am. Jur., Workmen’s Compensation, Sec. 211; Brookhaven Steam Laundry v. Watts, 1952, 214 Miss. 569, 55 So. 2d 381, 59 So. 2d 294. Claimant was not required to carry the gun. Its possession by him when it discharged was not connected with his employment. The injury did not arise out of the employment. * * *
“Earnest admitted he carried the gun for his own personal pleasure, and it had no connection with his job. The risk was unrelated to the employment* * *.”

In the instant litigation, the aligning of the sights and firing of the rifle were entirely alien to the employment.

Onr own case of Woodmansee v. Frank Lyon Company, 223 Ark. 222, 265 S. W. 2d 521, is somewhat pertinent to the case at hand. There, Woodmansee, a high-ranking employee, and some furniture salesmen for the company went on a duck hunt, and Woodmansee was injured. The background is set out in the court’s opinion:

“Sometime during November, 1951, a duck hunt for the salesmen was proposed in lieu of one of the regular Saturday morning sales meetings. It is not clear whether appellant or the president of the Company originated this proposal but at any rate it was made with the consent of all concerned. O. A. Mallett, a vice president, said appellant first mentioned the hunt and appellant says he thinks Mr. Lyon did, although he was not positive. In all events appellant brought the matter up in one of the meetings and Saturday, December 1, 1951, was selected by all present as a convenient date for the hunt. While, as above stated, salesmen were required to attend the regular Saturday morning sales meetings yet it seems to be agreed that no salesman’s job would have been materially affected if he had declined to go on the duck hunt. It is not seriously denied by anyone that such an outing by the salesmen would have some tendency to build up their morale.
“Just before leaving one of the salesmen decided that he could not make the trip because of illness, but appellant and the other four salesmen went in cars belonging to appellant and to Mr. O. A. Mallett. While appellant was engaged in hunting ducks he stumbled and fell, causing, as he contends, a serious injury to his back.”

After a rather lengthy discussion, and the citing of numerous decisions, this court said:

“ (a)' Even though it was desirable on the part of appellant and the company that the salesmen should all go on the -duck hunt, yet it can not be said that they were required to go, and it is not contended that the company required appellant to go. The Commission was justified in finding that appellant himself proposed the trip, and it also appears that all of the salesmen were enthusiastically in favor of it.
“(b) So far as the record reflects this is the first time that appellant and the salesmen , had ever hunted ducks on the company’s land. It can not be argued therefore that this recreational activity was a part of their employment or that it was a plan or system of recreation to be habitually indulged in. * * *
“In view of what has been said we affirm the judgment of the trial court which in turn affirmed the findings of the Commission.”

In the case before us, to paraphrase Woodmcmsee, it is undisputed that Hopper was not required to fire the rifle, and, in fact, this is not even contended. The commission was justified in finding that this wás a voluntary act on his part. The record reflects that this is the first time that this activity was engaged in, and it cannot be successfully argued that it was a part of the employment or that it was a plan or system of recreation to be consistently indulged in.

It is evident, from what has been said, that we are of the view that the court erred in reversing the commission.

Accordingly, the judgment of the Benton County Circuit Court is reversed, and the cause is remanded to that court with directions to reinstate the order of the commission.


author: George Rose Smith, Justice.

text:
    Lee PARKER v. Fred JOHNSTON
    5-4454
    426 S. W. 2d 155
    Opinion delivered March 18, 1968
    [Rehearing denied April 29, 1968.]

      McMillen, Teague, Bramhall & Davis, for appellant.

      Reed & Blackburn, for appellee.
   George Rose Smith, Justice.

In October, 1965, Johnston sold to Parker a vending-machine business that Johnston had been operating in Cleburne county. The purchaser made a down payment of $20,000 and executed a monthly-installment note and a security agreement for the unpaid balance of $22,000. Within about six months Parker refused to make any further payments on the debt. Johnston brought this foreclosure suit to enforce the contract. By counterclaim Parker asked for rescission and consequential damages. This appeal is from a decree granting relief to Johnston and rejecting Parker’s counterclaim.

We can materially compress our discussion of the issues by explaining at the outset the posture of the case as it reaches us. At the trial Johnston rested after having made a prima facie case by introducing the note and security agreement and proving the amount due. Parker then introduced a great deal of testimony to establish his right to a rescission, for fraud. At that point counsel for the plaintiff asked that the counterclaim be dismissed, “because they have not established, by any clear, convincing proof, any misrepresentation of a material fact, any right to rely. . .” The chancellor, over the defendant’s objections, sustained the motion to dismiss the counterclaim, which ended the trial.

As the case now stands our discussion of the issues must be prefaced by two observations. First, fraud such as that asserted by Parker need not be established by clear and convincing evidence; a preponderance of the proof suffices. That point was fully discussed and settled beyond any possibility of doubt in Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256 (1963). ¡Secondly, under our decision in Carrick v. Gorman, 232 Ark. 729, 340 S. W. 2d 377 (1960), the plaintiff, at the stage of the case that was reached below, is not entitled to test the counterclaimant’s proof by a demurrer to evidence. Such an attempt, when sustained by the chancellor, waives the plaintiff’s right to adduce additional proof and brings the case to us for final trial de novo on the record made below. Hence in the case at bar Parker’s proof, except for its own inherent weaknesses or contradictions, is substantially undisputed.

In September of 1965- Parker, a resident of California, came to Arkansas to visit a wartime friend and look for a ranch near Heber Springs, where excellent hunting and fishing are to be had. The real estate agents that Parker consulted did not have a suitable ranch for sale, but they interested Parker in Johnston’s vending-machine business, which Johnston had listed with them a few days earlier.

Negotiations were conducted from time to time over a period of more than a month. The vending-machine business consisted essentially of 33 juke boxes, 22- pinball machines, and 38 cigarette machines. Most of the machines were on location in cafes and other places; the rest were in a warehouse. Johnston represented the. value of the machines to be equal to the $42,000 purchase price. According to the record, the machines were actually worth not more than ' $18,000 (less than the down payment) and perhaps as little as $5,000. Some of the machines were demonstrably worthless, such as 10-year-old juke boxes that would play only 78-rpm records, which are no longer made.

The prospective income from the business was of paramount concern to Parker. The 36 monthly principal payments were to be $668.68 each. Parker explained to Johnston that he knew nothing about the business and that he was relying on Johnston for correct information. According to the undisputed testimony of four witnesses — Parker and three of the real estate agents— Johnston assured Parker that the business would produce a net income of $1,200 to $1,600 during the summer months and ¡of not less than $1,000 a month during the rest of the year, so that the $22,000 debt would be paid off within about fifteen months.

Upon the proof before us no conclusion is possible except that the representations were false, were material, and were relied upon by Parker. During the six months that elapsed before Parker made the second of the ¡only two full-scale principal payments that he made, he was able to make a profit, above his expenses and depreciation, in only one month. The record indicates that the depreciation upon 93 secondhand machines, for which. Parker was to pay $42,000, must have been not far from the monthly allowance of $700 claimed by Parker as proper depreciation. "We have no hesitancy in saying that Parker clearly established his right to rescission under the principles announced in several recent cases. Clay v. Brand, supra; Miller v. Porter, 218 Ark. 841, 238 S. W. 2d 940 (1951); Kotz v. Rush, 218 Ark. 692, 238 S. W. 2d 634 (1951).

We have studied the appellee’s arguments for af-firmance, but they are not convincing. The contention that a purchaser is not entitled to rely upon the seller’s assurances about the past profits of a business, especially when the matter is peculiarly within the seller’s knowledge, was rejected in the Kotz case, supra. Here, just as in that case, Parker asked to see the seller’s records during the negotiations, but Johnston evaded the inquiry by saying that no records were available. We are not impressed by Johnston’s suggestion that Parker should have obtained Johnston’s past income tax returns by discovery procedure and introduced them, in evidence. As we have seen, Parker made a strong case for relief upon his counterclaim. If the missing tax returns would have supported Johnston’s assertions about past profits it was his duty to go forward with the evidence by producing them.

Finally, Parker did not waive his right to rescission by- making all or part of two principal payments, one on March 30 and the other on May 2, 1966. His continual complaints to Johnston were met by assurances that the business would pick up, if given time, Johnston had repeatedly said that the summer months — the resort season in the county — would be especially profitable. We realize, of course, that in many instances a buyer who deliberately continues to make installment payments with full knowledge of the seller’s misrepresentations may thereby waive his right to rescission. But here the issue is one of fact. Parker’s position is fully as strong as that of the purchasers in the Clay case, supra, who made three monthly payments before “they became convinced the water supply and sewage facilities were inadequate.” The Uniform Commercial Code recognizes the buyer’s right to revoke his acceptance of the goods under circumstances such as those present here. Ark. Stat. Ann. § 85-2-608 (Add. 1961). We cannot say that Parker slept on his rights.

The decree is reversed and the cause remanded for the entry of a decree rescinding the contract and restoring the parties to their original positions. We find no proof of consequential damages, which are denied.


text:
    Harold E. MEEK et ux v. UNITED STATES RUBBER TIRE COMPANY etc.
    5-4508
    425 S. W. 2d 323
    Opinion delivered March 18, 1968

      Harold C. Bains Jr., for appellants.

      Daily & Woods, for appellee.
   George Rose Smith, Justice.

In 1963 Harold E'. Meek and Clint Spencer organized a corporation, M & S Royal Tire Service, Inc., and entered the service statjon and tire business together. In order to establish the corporation’s credit with United States Rubber Company the two men and their wives executed agreements with the latter company, guaranteeing to pay any amounts that might be owed by M & S' Royal to United States Rubber Company for merchandise. In 1964 Meek withdrew from M & S Royal and sold his stock therein to Spencer. Thereafter M & S Royal was adjudicated a bankrupt and was discharged of its indebtedness.

United States Rubber Company then brought this action against the Meeks and the Spencers to enforce their guaranties with respect to the unpaid balance of the M & S Royal open account, amounting to $19,546.31. Upon facts established by requests for admissions the trial court granted a motion for summary judgment against'all four defendants. The Meeks have appealed, urging three grounds for reversal.

First, it is contended that United States Rubber Tire Company is not the proper plaintiff, because the guaranty agreements were made with United States Rubber Company. The record does not support this contention. The complaint describes the plaintiff as “United States Rubber Tire Company, a Division of United States Rubber Company.” There is no indication that United States Rubber Tire Company is a separate corporation. Quite the contrary. The complaint alleges that the- defendants executed guaranty contracts with the plaintiff, a corporation. The guaranty contracts themselves, which are exhibits to the complaint, refer only to United States Rubber Company. Thus the complaint and the exhibits, construed together, identify the plaintiff as United States Rubber Company. Moreover, the Meeks’ answer expressly admits that they executed a guaranty in favor of “the plaintiff.” Inasmuch as tlie plaintiff’s status as a corporation was not specifically denied, it must be taken as admitted. Ark. Stat. Ann. § 27-1121 (Repl. 1962). There is at most some slight elaboration of the plaintiff’s exact corporate name, but such an error is immaterial when no separate party is actually involved. Evans v. List, 193 Ark. 13, 97 S. W. 2d 73 (1936).

Secondly, the Meeks argue that United States Rubber Company waived its rights under the guaranty contracts by asserting in its claim in the bankruptcy court that it was an unsecured creditor of M & S Royal. That statement, however, was true, because in bankruptcy law a secured creditor is one who holds a direct or indirect security interest in property of the bankrupt. The existence of a guaranty agreement by a third person, who holds no security interest in the bankrupt’s property, does not render the primary creditor “secured.” Collier on Bankruptcy, § 1.28 (14th Ed. 1967).

Thirdly, the Meeks insist that their liability under the guaranty contract was discharged when Mr. Meek sold his stock in M & S Royal and withdrew from the business, because in that transaction Meek and Spencer signed an agreement which recited that Spencer assumed the debts of the corporation and agreed to hold Meek “blameless and free” from any such liabilities. The trouble is that United States Rubber Company was not a party to that release and thus was not bound by its provisions. The Meeks argue in substance that United States Rubber Company was bound by the Meek-Spencer contract, because it knew about the transaction and nevertheless' continued to deal with M & S Royal. Even so, the record is completely devoid of facts to indicate any conduct on the part of the appellee that would raise an estoppel or otherwise preclude it from enforcing its guaranty contract. We find no merit in this defense.

Affirmed.


text:
    Charles BROWN and Jim JENKINS v. Carl McDANIEL et al
    5-4614
    427 S. W. 2d 193
    Opinion delivered March 18, 1968

      Griffin Smith, for petitioners.
    Prosecuting Attorney R. B. Adhisson; Clay Robinson, Asst. Pros. Atty., for respondents.

      Steele Hays and Attorney General Joe Purcell; Thomas A. Glaze, Asst. Atty. Gen., Amici Cnriae.
   George Rose Smith, Justice.

This began as a taxpayer’s suit brought in the Pulaski Circuit Court by Camille Lamar to enjoin the Pulaski County Board of Election Commissioners from conducting an election on March 12, 1968, for the selection of two directors of the Little Rock school board. When the parties realized that the proposed election of school directors involved in itself no avoidable expenditure of tax money, because an election had to be held anyway to submit another matter to the people, the plaintiff, as a patron of the district, amended her complaint to seek a declaratory judgment with respect to the validity of the proposed election of school directors and, if appropriate, an injunction to prevent the submission of that issue to the voters.

On the merits the question for decision was whether two incumbent directors who had been elected to three-year terms in September, 1965, were required to run for re-election in March of this year as a result of the passage of Act 171 of 1967, which changed the date iof the annual school election from the last Tuesday in September to the second Tuesday in March. Ark. Stat. Ann. § 80-301 (Supp. 1967).

The two incumbents and their opponents, the appellants, intervened in the case. The trial court concluded that the incumbents are not required to stand for reelection this month. Upon that finding he enjoined the commissioners from going ahead with the election of school directors. This appeal was lodged, argued, and submitted to this court within a period of three days after the circuit court’s decision. At the outset we issued a temporary stay of the trial court’s order, to provide for the possibility that the proposed election might be found to be lawful. A day later we handed down a per curiam order reversing the circuit court’s judgment “on the ground that the courts are without authority to enjoin the bolding of a regular election, regularly called.” We stated that a formal opinion would follow. This is that opinion.

We have not decided this exact point in any earlier case. An analogous situation, also involving the assertion of excessive power over the election process, was presented in Irby v. Barrett, 204 Ark. 682, 163 S.W. 2d 512 (1942). There the chairman and secretary of the Democratic State Committee had refused to allow Irby to qualify as a candidate in the Democratic primary, because those party officials had decided that even if elected Irby would not be eligible to hold the office he soug’ht. After concluding that the statutes did not vest in the party chairman and secretary the authority they attempted to exercise, we went on, in language appropriate to the case at bar, to explain why such sweeping power ought not to be conferred upon two persons:

“If the chairman and secretary of the committee have the right to say that because of the decision of this court petitioner is ineligible to be a candidate for office, they may also say, in any case, that for some other reason a candidate is ineligible. For instance, it has been held by this court in many election contests that one must pay his poll tax; that he must do so after proper assessment in the time and manner required by law, and that otherwise he is not eligible even to vote, and unless he were a voter he could not hold office. So with other qualifications, such as residence. May this question be considered or decided by the chairman and secretary of the committee? It may be that such power can be conferred upon them by laws of this state or the rules of the party; but it is certain that this has not yet been done. If this can be done, and should be done, the door would be opened wide for corrupt and partisan action. It might be certified that a prospective candidate has sufficiently complied with the laws of the state and the rules of a political party to become a candidate, and, upon further consideration, that holding might be recalled; and this might be done before that action could be reviewed in a court of competent jurisdiction and reversed in time for the candidate to have his name placed on the ticket. It would afford small satisfaction if, after the ticket had been printed with the name of the candidate omitted, he have a holding by the court that the name should not have been omitted.”

The situation now before us embraces an even greater threat to democratic government than that considered in the Irby case. If a court, trial or appellate, can at the eleventh hour prohibit a regular election, regularly called, it is at once apparent that the control of judges over the election process goes far beyond reasonable limits. In many states the courts themselves have been quick to recognize the absolute necessity of severe restrictions upon their own discretionary authority. We wholly agree with those decisions, as epitomized in the following quotations:

“The jurisdiction of any court, or of the whole judicial department of the government, to enjoin the expression of the popular will at a time and in the manner provided by statute, may well be doubted. If the election, when held, was not according to statute, or if the statute was enacted without any constitutional authority, the courts might very well hold the election invalid. But that is quite another thing from enjoining the people from peaceably assembling and casting their votes for or against any proposition submitted to them under the color of law.” Lamb v. The B., C. R. & M. R.R., 39 Iowa 333 (1874).
“But the attempt to check the free expression of opinion — to forbid the peaceable assemblage of the people — to obstruct the freedom of elections — if successful, would result in the overthrow of all liberty regulated by law. The mere effort to assume such power is dangerous to the rights of the citizen. If the courts can dictate to the officers of the people that they shall not hold an election from fear of some imaginary wrong, then people and officers are entirely subservient to the courts, and the consequences are too fearful to contemplate.
“The principle which would authorize the mighty mandate of a court of chancery, in this case, would justify it in every election to be held by the people, and thus the whole administration of the government might be obstructed and all power and authority placed at the footstool of the judge.” Walton v. Beveling, 61 Ill. 201 (1871).
“The mere fact that the present suit was brought as a suit under the Uniform Declaratory Judgments Act . . . does not alter the situation, as it was not the purpose of such Act to extend the jurisdiction of the courts over matters which are purely political. The rule still obtains in this State that ‘an election is essentially the exercise of political power, and, during its progress, is not subject to judicial control. This comprehends the whole election, including every step and proceeding necessary to its completion.’” Killam v. Webb County, Tex. Civ. App., 270 S. W. 2d 628 (1954).

We do not imply that a declaratory-judgment action or a taxpayer’s suit might not in some instances be used to settle questions involved in an election to be held in the future. It is essential, however, that the proceeding be brought in sufficient time to permit the issues to be fully considered, on their merits, with adequate time for both sides to prepare and present their contentions. It may be remembered that in 1952 we dismissed an attack upon a referendum petition on the ground that the time remaining before the election was too short for the completion of testimony upon the issue of fraud. Ellis v. Hall, 221 Ark. 25, 251 S. W. 2d 809 (1952).

When the present case was presented to us, four days before the scheduled election, our only sound course was to let the election be held, leaving the parties to their post-election remedies, which are unquestionably adequate. The attack upon the validity of the election came so late that there was no possibility whatever of our giving sufficient study to the merits of the parties’ substantive contentions. Indeed, counsel for the appellants frankly admitted in oral argument that he was unprepared, owing to the extreme haste with which the case had been processed. Hence our per curiam order, reversing the trial court’s decision, was expressly without prejudice to further proceedings in the matter.

The per curiam order of March 8,1968, is confirmed.


text:
    Ores HEAD et ux v. Jess FARNUM
    5-4426
    425 S. W. 2d 303
    Opinion delivered March 18, 1968

      Joe H. Hardegree, for appellants.

      James R. Hale, for appellee.
   Paul Ward, Justice.

This is an appeal from a judgment (based on a jury verdict) awarding Jess Famum (appellee) a fee simple title in 120 acres of land. To better understand how the litigation arose and the issues raised, we set out below the background facts which are not in dispute.

Facts, (a) Jacob Stottler was the owner of the land in 1900. He died intestate in 1919, survived by his wife (now deceased) and by two sons and one daughter, viz: Edward, George, and Elizabeth.

(b) Elizabeth, in 1920, conveyed her one-third interest in the land to George. She married a Mr. Head and they had one son, named Ores Head, who is the appellant here.

(c) Edward died, intestate, in 1944, leaving no children.

(d) George, with his wife Florence, lived together on the land until he died, intestate, in 1953, leaving no offspring. At his death Florence (later married to Baucom) continued to live on the land for an undisclosed period of time, but conceded to be less than seven years. However, she continued to pay the taxes until 1963 when she deeded the land to Howard P. Yates, Jr. for $1,000. In the same year Yates deeded the land to appellee for $4,000.

Litigation. In 1966 appellee filed a complaint against Ores Head and wife, alleging: (a) Appellee is the owner in fee simple of the said 120 acres of land, based on the deed from Yates who had received the deed from Florence; (b) In 1965 Ores and his wife unlawfully entered upon the land and wrongfully cut and removed therefrom large amounts of timber valued at $2,-000. The prayer was for (1) possession of the land, and all other proper relief, (2) and judgment for the timber removed. [Item (2) is not an issue here.]

In answer to the above complaint Ores entered a general denial, and further stated that he “owns and occupies the land in question by right of heirship and that he has a title superior to the title, if any, of the Plaintiff, to said lands”. He also reserved the right to make further answer.

The trial court, over appellants’ objections, allowed appellee to introduce testimony to show Florence obtained title to the land by adverse possession, and that she had a fee simple title when she deeded the land to Yates in 1963. Appellants’ objection was based on the ground that appellee did not plead title based on that ground, but, under our view hereafter expressed, we deem it unnecessary to decide that issue. Thus the matter was tried, and then presented to the jury on the following instruction:

“Do you find by a preponderance of the evidence that Florence Stottler Baucom held the lands in question by adverse possession for seven years or more from death of George Stottler in 1953 to sale of property in 1963?”

The jury’s answer to the above interrogatory was “Yes”. Then the court entered judgment in accord with the verdict, hence this appeal.

Seeking a reversal of the judgment, appellants rely on seven separate points. The first six points pertain to the instructions given by the trial court, to the right of appellee to introduce testimony as to adverse possession on the part of Florence, and to the court’s refusal to direct a verdict in favor of appellants. We deem it unnecessary to discuss these points because v^e have concluded the case must be reversed on the seventh point, which challenges the sufficiency of the evidence to support the jury verdict.

The undisputed facts set out previously reveal that: Ores was the owner of an interest in the land. He inherited a l/6th interest from Edward and he was the sole heir of George. The extent of this last interest depends on the extent of the interest which George held as an ancestral estate. See Ark. Stat. Ann. § 61-206 which gives Florence (his widow) one-half of the portion held by her husband as a new acquisition. From this it follows that while Florence remained on the land after the death of her husband she had a legal right to do so, as his widow, and she was also occupying the land as a co-tenant with Ores.

In view of the above situation it is our conclusion that the record reveals no substantial evidence to support the jury verdict. The pertinent parts of appellee’s testimony is set out below.

Florence testified:

“Q. Did you claim to own it?
A. I did. I was his only heir.
Q. Now, you say after Mr. Stottler died, you claimed to own the property?
A. Well, I thought I did.
You thought you owned it? <©
I sure did. >
Q. How long did you think you owned it?
A.. Well, after he passed away I was left as his heir. I was his widow and I’d he his heir and his mother told me and him both time and time again that for taking care of her, she wanted me to have her part.
Q. Well, you continued to think you owned it, as I understand it.
A. I did.
Q. Well, Mrs. Drain (Florence), yon did say yon claimed the property?
A. Yes, everybody told me it was mine.
Q. How long did yon claim it?
A. After he died? Well, I claimed it as long as I paid taxes on it. I was told it was mine if I paid the taxes and I paid the taxes for abont ten years before anybody come np and said they wanted it.
Q. Mrs. Drain, at the time yon sold it to Howard and Billie Lon Yates, did yon claim to own it?
A. I certainly did. I paid the taxes.”
# # #
“Q. Yon took it? Yes, ma’am, yon took it and yon thonght yon had a right to sell it?
A. I certainly did.”

Orville Yates, who was familiar with the land and knew George Stottler, testified:

“Q. Mr. Yates, following the death of George Stottler, do yon know who claimed to own that land?
A. Well, his widow.
Q. Florence Baucom?
A. Yes.
Q. Did yon ever know of anyone else making any claim to it at any time from the time of the death of George Stottler np until the time she sold it?
A. No, sir, I didn’t.”

The above testimony, falls far short of meeting the requirements set out in many decisions of this Court, some of which are noted below.

In Watson v. Hardin, 97 Ark. 33 (p. 36), 132 S. W. 1002, this Court quoted with approval the following statement:

‘“It is well settled by the authorities that this possession must be actual, open, continuous, hostile, exclusive and be accompanied by an intent to hold adversely and in derogation of and not in conformity with the right of the true owner. . . It must be hostile in order to show that it is not held in subordination and subserviency to the title of the owner.”’ -

There, the Court also said:

‘ ‘ The widow is entitled to the possession of the land as her homestead during her life; she holds the life estate and the heir the reversion; the possession of the widow is therefore not adverse to the heir.”

In Brinkley v. Taylor, 111 (p. 309) Ark. 305, 163 S. W. 521, we find this statement:

‘‘It is settled that if a widow conveys her dower interest before it is assigned to her, the heir may recover the land from her vendee, and the statute of limitations is set in motion against the heir when her vendee enters into the possession.”

In Mills v. Pennington, 213 Ark. 43 (p. 47), 209 S. W. 2d 281, we said:

‘ ‘ The law is well settled that a life tenant is entitled to possession of premises to which the estate pertains, and it is the tenant’s duty to pay taxes.”

The Court also held that the heirs had a right to assume the widow’s possession was under her marital right of unassigned dower until notice of her adverse holding was notorious. To the same effect, it was stated in Tennison v. Carroll, 219 Ark. 658 (p. 663), 243 S. W. 2d 944, that:

“Even if a widow disavows her homestead and claims as a tenant in common, her possession and occupancy is presumed to be permissive and not hostile to her co-tenants unless the fact of hostility affirmatively appears.”

The judgment is reversed, and the case is remanded for any further requested proceedings consistent with this opinion.