text:
    Layne v. Strode.
    5-1622
    317 S. W. 2d 6
    Opinion delivered October 20, 1958.

      Eugene Coffelt, Claude Duty and Jeff Duty, for appellant.

      Clifton Wade, Clayton Little, Eli Leflar and A. L. Smith, for appellee.
   J. Seaborn Holt, Associate Justice.

This action involves the ad valorem assessment of real property in Benton County for 1957. The Benton County Assessor, after making up his assessment hooks and an abstract of the assessed property for 1957 (Sec. 84-415 Ark. Stats. 1947) on August 15,1957, filed same with the county clerk of Benton County (Sec. 84-447 Ark. Stats. 1947). The abstract was based on a 10 per cent assessment of the total value of the real property in that county. This total assessor’s value was $8,870,075.00. Following the filing of this abstract the county clerk made out his report in accordance with the assessor’s abstract on October 21,1957, and forwarded same to the State Tax Coordination Division. During all this time the Benton County Board of Equalization was in session, (See Secs. 84-706 — 718 Ark. Stats. 1947) yet the report to the State Commission showed no changes or adjustments made by the Board of Equalization. It further appears that the Equalization Board had made out cards of each individual taxing unit in the county and had mailed notices to each taxpayer of any change in assessment. No report, however, was made to the county clerk until about 2 p. m. November 18, 1957.

Benton County, proceeding under Act 351 of 1949, had employed the A. B. Capers Company to make an independent appraisal of the real estate in Benton County as an aid to the assessor and the Equalization Board in equalizing assessments. Capers’ work of appraisal was completed and accepted by the county as satisfactory. By the third Monday in August the assessor had completed his 1957 assessment on what he believed to be 10 per cent of the fair market value of the real property assessed. Acting on the assessor’s recommendations the County Equalization Board fixed the ad valorem assessment for 1957 at 14 per cent of the fair market value instead of 10 per cent, and completed its work by October 15, on that basis (except as to protests and appeals of certain property owners.) By resolution, on November 18,1957, the Equalization Board had reported to the Arkansas Tax Coordination Division that all assessments had been reviewed and analyzed on the basis of 14 per' cent of the fair market value for the year 1957.

On November 18, 1957, the Benton Quorum. Court, in regular session, adopted a resolution, in.part, as follows: “Be it therefore resolved that the Quorum Court of Benton County, Arkansas, levy the county, municipal and school taxes for the year 1957 upon the assessment of the real and personal property in Benton County, Arkansas, placed thereon by the assessor of Benton County, Arkansas, disregarding the reappraisal of the A. B. Capers Company and the reassessment of the Equalization Board of Benton County, Arkansas.” The Quorum Court then proceeded to levy the taxes for the year 1957 upon the basis of the above resolution.

■On October 16, 1957, appellant, Russell Layne and 193 others filed a representative tax payers suit in the Chancery Court of Benton County challenging the action of the County Equalization Board in reviewing, adjusting and analyzing ad valorem assessments. Deféndants in that suit were the County Clerk, County Judge, County Collector, County Equalization Board and others. Trial on the matter was had and concluded on November 15, 1957, when the Chancery Court sustained defendants’ demurrer on the evidence offered by the plaintiffs and dismissed plaintiff’s complaints with prejudice. In that decree the trial court used this language: “. . . it is the opinion of the court that the plaintiffs have failed to meet the burden of proof . . . have failed to show . . , that the Board of Equalization exceeded its lawful authority; they have failed to show that the Board has done things which it had no right or authority to do under the law.” There was no appeal from this decree.

Following that decree, on November 18, 1957, as indicated, the quorum court met and the first item of business considered was the adoption of the above quoted resolution, which, as indicated, resolved that the quorum court should levy county, municipal and school taxes, upon the assessor’s original assessment, disregarding the assessment of the Equalization Board. It appears that the action of the quorum court above was first questioned by a petition in the county court. In accordance with the prayer of the petition the county court on November 21, 1957, entered its order, holding that the resolution of the quorum court was void, for the reason that it had no authority to interfere with the regular assessment procedures as established by law and ordered the county clerk to proceed to extend taxes “using the assessments made by the assessor as adjusted and equalized by the Equalization Board, applying the millage rates levied by the quorum court.” This order of the county court, on appeal to the circuit court, which examined the order of the county court, also declared the action of the quorum court void. The findings and order of the Circuit Court contained these recitals: “. . . the actions of the Equalization Board of Benton County, Arkansas and their report, consisting of between 18,000 and 20,000 separate calls on individual pieces of real property located in Benton County, Arkansas, set forth on individual call sheets, has been made in substantial compliance with the laws of the State of Arkansas. 3. The court further finds that the 100 per cent value of the real property in Benton County, Arkansas, as established by the Assessor was $88,700,750.00, and that the 100 per cent value of the real property in Benton County, Arkansas, as established by the Equalization Board was $87,919,918.00, and that the Equalization Board’s figures show a total value of property in Benton County, Arkansas of $780,732.00 less than the total value fixed by the Assessor. 4. That the County Assessor used the figure of 10 per cent of the actual value of the real property, which total assessed value amounts to $8,870,075.00, and that the Equalization Board used 14 per cent of the actual value of the real property, which total assessed value amounted to $12,313,714.00. 5. That the action of the Quorum Court on the 18th day of November, 1957, directing that the taxes be collected on the value established by the Assessor of Benton County, Arkansas, was void, . . .” This appeal followed.

For reversal appellant relies on the following points: “1. The court is in error in holding the action of the quorum court on November 18, 1957 to be void. 2. The court is in error in directing the county clerk to prepare and extend the tax books upon the figures as established by the Equalization Board without regard to the order of the quorum court of November 18, 1957.” We do not agree with either of these contentions. They are so interrelated that we consider them together.

It is unquestioned that our legislature has the power as well as the duty to prescribe by law the manner and method in which the value of property should be ascertained for taxing purposes, making the same equal and uniform throughout the state. Section 5, Article 16, Constitution of Arkansas, contains this provision: “All property subject to taxation shall be taxed according to its value, that value to be ascertained in such manner as the General Assembly shall direct, making the same equal and uniform throughout the State. No one species of property from which a tax may be collected shall be taxed higher than another species of property of equal value, . . .” Act 153 of 1955 makes it mandatory on all state and county officials to make a proper valuation and assessment of all property assessed for tax purposes. Should a county fail to perform this duty, as the act directs, then it shall lose a portion, or all, of the state’s turnback as aid to counties, or the taxing units therein. For many years our statutes have provided what is commonly called turnback funds for the use of the counties and subdivisions therein, such funds to be allocated under formulas prescribed. The above Act 153 of 1955, Sec. 12, as amended by Sec. 12 (c) of Act 304 of 1957, directs that each county shall equalize its assessments at 20 per cent of fair market value. However, it is also provided that no funds will be withheld if a county equalized assessments at a rate of 18 per cent of fair market value for 1958. "The primary and decisive question is: was the action of the quorum court (above resolution) void? We hold that it was. The powers of the quorum court aré limited. It does not have the power to change millages voted by city councils (Ark. Constitution Art. 12, Secs. 3 & 4 and Ark. Stats. 19-4501) and school districts (Amendment 40 Ark. Constitution), but its duty is simply to levy without change such millages as voted. This duty is purely clerical and the county clerk is required to extend taxes on the basis of the millages voted by city councils and school districts without reference to levies made by the quorum court on city and school district millages. In other words, the quorum court was without authority to levy millages on any basis other than the assessment of the assessor, as were' equalized and adjusted by the Equalization Board, which completed its work on October 15, 1957. The quorum court does have the power and duty to determine and levy millages for county purposes only (Sec. 17-401 — 409 Ark. Stats. 1947). The latter section was substantially complied with in this case.

We conclude that the judgment must be affirmed.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Hot Spring County, Ark. v. Crawford.
    5-1628
    316 S. W. 2d 834
    Opinion delivered October 20, 1958.

      W. R. Thrasher and Bill Demmer, for appellant.

      Joe W. McCoy and J. C. Cole, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an eminent domain proceeding; and the jury verdict in favor of the landowner must be reversed because of the admission of improper evidence in the matter of the damages.

The County Court of Hot Spring County made an order for the widening of TJ. S. Highway No. 67, and thereby took one and one-fifth acres of land of the appellees, Mr. and Mrs. Crawford. The land was on both sides of the highway, which separated the Crawford’s home from their place of business, called “Blue Top”, a restaurant and truck stop, about three miles north of Malvern. When the County Court disallowed the Crawfords’ claim, they appealed to the Circuit Court where the case was tried to a jury, with a verdict and judgment in favor of the Crawfords; and Hot Spring County has appealed.

In the trial in the Circuit Court the Crawfords claimed that the highway had been lowered .to such an extent that their patrons could no longer use the “Blue Top” as a truck stop, and that as a consequence the business was ruined, to the Crawford’s permanent darn-age. As one method of establishing the damages for the taking of their land and the damages to the lands remaining, the Crawfords were allowed to show — over objections of appellant — (a) that their net profits from the operation of the “Blue Top”, restaurant and truck stop, were $4,000.00 per year; and (b) a real estate appraiser testified that in determining damages to the Crawford land he capitalized this $4,000.00 net profit per. annum and used the result as a factor in fixing the Crawfords ’ damages at $48,350.00. The greatest amount that any witness for the County said the Crawfords were entitled to receive was $10,065.00; the jury verdict was for $28,000.00.

The Court allowed the jury to consider net profits from the business operated on the land as a factor in arriving at the land damages the Crawfords claimed; and this was an error fatal to the verdict and judgment. . Our Constitution says in Art. 2, § 22, “. . . and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor”. We have many cases on damages in eminent domain proceedings. Some of them are: Little Rock Junction Ry. v. Woodruff, 49 Ark. 381, 5 S. W. 792; Stuttgart & R. B. RR. v. Kocourek, 101 Ark. 47, 141 S. W. 511; Kirk v. Pulaski County Road Imp. Dist., 172 Ark. 1031, 291 S. W. 793; Miller Levee Dist. v. Wright, 195 Ark. 295, 111 S. W. 2d 469; Sewer Imp. Dist. v. Jones, 199 Ark. 534, 134 S. W. 2d 551; and Pulaski Coun ty v. Horton, 224 Ark. 864, 276 S. W. 2d 706. But we have directly held that the net profit of the business operated on the damaged land is not a proper factor for consideration by the jury in assessing the damages. In K. C. So. Ry. Co. v. Anderson, 88 Ark. 129, 113 S. W. 1030, in discussing the damages for taking of property, this Court said:

“But this does not reach to damages to the business of the landowner which are incident to the enforced purchase of his property. Thesé are not subjects for assessment in condemnation proceedings, under the weight of authority and the sounder reasoning on the subject.”

In Desha v. Independence County Bridge Dist., 176 Ark. 253, 3 S. W. 2d 969, land at or near a ferry site was condemned for the location of a bridge. The Trial Court allowed the ferry owner to show the net profits received from operating the ferry. This Court on rehearing said: “A majority of the Court are of the opinion that the evidence as to the amount of revenue or income from the ferry was not competent testimony.”

The holding of our Court, as above quoted, is in line with the great weight of authority. In 7 A. L. R. 163 there is an annotation, “Profits derived from business conducted on property taken by eminent domain as evidence of market value”; and the annotator cites cases from fifteen jurisdictions to sustain this statement: “With remarkable unanimity the American jurisdictions hold that evidence of profits derived from a business conducted on property is too speculative, uncertain, and remote to be considered as a basis for computing or ascertaining the market value of the property in condemnation proceedings.” In Nichols on “Eminent Domain”, Third Edition § 19.3 (Vol. 5, p. 222), the text writer sums up the holdings in the following language:

“It is, accordingly, well settled that evidence of profits, of a business conducted upon land taken for the public use is not admissible in proceedings for the determination of the compensation which the owner of the land shall receive. The profits of a business are too uncertain, and depend on too many contingencies to safely be accepted as any evidence of the usable value of the property upon which the business is carried on. Profits depend upon the times, the amount of capital invested, the social, religious and financial position in the community of the one carrying it on, and many other elements which might be suggested. What one man might do at a profit another might only do at a loss.”

We, therefore, conclude that the Trial Court was in error in allowing net profits from the business operated on the damaged land to be shown to the jury as an element or circumstance to be considered in arriving at a verdict. There are other assignments urged in the briefs, But as those matters may not occur on a new trial, we find it unnecessary to list or discuss them.

For the error indicated, the judgment is reversed and the cause remanded.

       Here is the record when Mr. Crawford was questioned on the point:
      “Q. About what was the average gross income that was being produced by that property out there over those three years?
      A. I will have to refresh my memory.
      Q. Well, get it just as accurately as you can estimate it, you don’t have to get it exact. The average gross income, total amount of income?
      A. Around $42,000 a year.
      Q. And about what was the net profit to you from that income?
      MR. DEMMER: Your honor, I am going to object to this. I am going to object on the grounds, that profits on a business operated by a person who owns the land is entirely not proper for the establishment of ány type of value of compensation.
      MR. COLE: We are merely trying to prove, Your Honor, the productive value of the land as an element in arriving at its value.
      MR. DEMMER: Sir, I am saying that profit as far as income is concerned is not a proper element to consider.
      MR. COLE: Not as such, but is so far as it affects market value.
      MR. DEMMER: I don’t believe it is, the only time it can show income is when it shows the highest and best use for business purposes.
      THE COURT: Objection overruled.
      Q. What would be the approximate average net income that the property produced?
      A. About $4000 a year.”

       Here is the appraiser’s testimony on the point:
      “A. Yes, sir, I took a number of things into consideration. I took into consideration the net income that the property produced for Mr. and Mrs. Crawford.
      Q. You did consider the net income in arriving at your value?
      A. As one approach to my value.
      Q. Would you tell me how you did that?
      A. I capitalized the net income from the property.
      MR. DEMMER: I am going to request that this witness’ testimony be stricken from the record and the jury be requested to disregard it, because capitalization of a net income of a situation of this kind is not proper at all in evaluating as far as market value of a piece' of property is concerned.
      THE COURT: Motion denied.”

       There is an annotation in 134 A.L.R. 1125 entitled, “Distinction between income or profits from business on land and income or profits from use of land, as affecting admissibility of evidence in that regard on question of damages in eminent domain”, which is worthy of consideration by anyone studying the point herein discussed.


author: George Rose Smith, J.

text:
    Dumas v. Monsanto Chemical Company.
    5-1625
    316 S. W. 2d 836
    Opinion delivered October 20, 1958.

      Tom Gentry and William M. Dabbs, Jr., for appellant.

      Davis & Ragsdale, for appellee.
   George Rose Smith, J.

In 1954 the appellee’s predecessor, Lion Oil Company, entered into a labor contract with Local No. 224, International Association of Machinists. That contract provides for the accrual of certain seniority rights on the part of the company’s employees. On August 8, 1955, the company shut down some of its maintenance equipment and temporarily laid off thirty-one of its employees. Nine days later the company decided to make a permanent reduction in its working force and, in that connection, discharged the thirty-one men who had been temporarily laid off and forAvarded to each of them the termination pay provided for in the labor agreement. fej

Later on a number of the discharged employees attempted to assert a grievance through the labor union. It Avas their contention that their seniority rights continued in force for a year after their discharge and that within that year the employer had, in violation of the labor contract, filled certain jobs by retaining or promoting men whose seniority rights were inferior to those held by the discharged employees. The union officers refused to present these grievances, being of the opinion that there had been no breach of contract on the part of the employer. The present suit was then filed by fourteen of the discharged employees. In substance their complaint reneAvs the grievance that Avas submitted to the union and seeks damages from the employer and injunctive relief against the asserted violation of the collective bargaining agreement. The chancellor dismissed the complaint for want of equity.

A number of contentions are urged in the briefs, but Ave find it necessary to discuss only the employer’s contention that, although these appellants would admittedly have been entitled to priority had the company increased its working force by employing additional Avorkers Avithin a year after the appellants were laid off, the contract did not contemplate or require that men already working for the company should be discharged in order to make places for these appellants. In our view this contention is well taken and is decisive of the case.

The labor contract classifies the various jobs under two broad categories and establishes a corresponding system of dual seniority. The upper category includes seventeen specified crafts, such as carpentry, painting, welding, blacksmithing, etc. The lower category is called the Yard Pool and includes all workmen who are not assigned to jobs in one of the seventeen skilled crafts. A new employee enters the Yard Pool and, after a training period of forty-five days, begins to accumulate seniority in the bargaining unit as a whole. When he is promoted to work in one of the crafts he continues to accrue seniority in the bargaining unit and also begins to accumulate seniority in the particular craft to which he is assigned. As between the two, craft seniority is declared to be prior to bargaining unit seniority.

Promotions, demotions, and temporary layoffs are determined on the basis of seniority. Vacancies in the various crafts are filled by promoting men from the Yard Pool according to their seniority, and, conversely, if the company reduces the working force in a particular craft, the employee in that craft who is youngest in seniority is the first to be demoted to the Yard Pool. When it becomes necessary for men to be laid off, those in the Yard Pool with the least seniority must be the first to be let go.

The present dispute goes back to the employer’s decision to lay off thirty-one men on August 8, 1955. By the terms of the labor agreement the employer was required to select for release the thirty-one men then in the Yard Pool who were lowest in seniority, and it is conceded that this selection was properly made. Although all of these appellants had formerly worked in a craft and in some instances had acquired substantial craft seniority, they were unlucky in that they were working in the Yard Pool on the particular day when the company found it necessary to reduce its working force. Hence these appellants were laid off, in accordance with the contract, simply because they happened to be in the Yard Pool on August 8, 1955; while other employees junior in service were retained, simply because they happened to be assigned to a craft on that date.

The contract provides that the accrued seniority of an employee who has been laid off through no fault of his own shall continue to exist for one year after the date of his layoff (or for 180 days if he has less than five years of bargaining unit seniority). After these appellants had been let go the company naturally continued to make promotions and demotions to and from the Yard Pool and within the several crafts. It must be strongly emphasized at this point that the company did not employ any new workmen in its maintenance department during the year following the appellants’ release; there was merely a shifting about of employees who were on the payroll on August 8, 1955, some of whom, as we have said, had less seniority than the appellants but were fortunate in having been assigned to service in a craft on the day when the employer decided to let thirty-one men go.

The appellants now insist that, since their seniority rights continued for a year after they were laid off, the company could not within that time award a promotion to any other employee whose seniority rights were inferior to those of any one of the appellants. On this premise it is argued that, when the occasion for a promotion arose, the contract required the company to discharge a retained employee and to recall one of the appellants to fill the position.

This contention is answered, in our opinion, by the plain language of the contract: ‘ ‘ The employee last employed and not then permanently assigned to a craft shall be the person first laid off in the event there is a reduction in the number of employees. The employee last laid off, through no fault of his own, shall, subject to the following provisions of this Article, be the person first re-employed in the event additional employees are employed . . . ”

Taken as a whole, the contract leaves no real room for donbt about its meaning. The clause preserving seniority rights for a period of a year fixes a reasonable and practical limitation upon the preferred position accorded to former employees. The only preference actually stated in the contract is that the last employee to be laid off is entitled to be the person first re-employed 1 ‘ in the event additional employees are employed. ’ ’ Here there was no occasion for anyone to be re-employed, for no additional employees were added to the working force during the year following the appellants’ release on August 8, 1955. The contract admittedly protects an employee of limited seniority who is fortunate enough not to be assigned to the Yard Pool on the day when the employer takes the major step of laying off a number of workmen. We are unwilling to read into the agreement a further provision, which is certainly not expressed, that this same employee of limited service must be discharged to make a place for the former worker whenever the employer takes the minor step of making a promotion within the existing working force.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Chambliss v. Brinton, Special Administrator.
    5-1634
    317 S. W. 2d 143
    Opinion delivered October 20, 1958.
    [Rehearing denied November 17, 1958]

      Barrett, Wheatley, Smith é Deacon, for appellant.

      McCourtney, Brinton, Gibbons S Segars, for appellee.
   Paul Ward, Associate Justice.

A tractor-trailer truck belonging to Victor Metal Products Corporation and driven by Elbert Chambliss ran into a pick-up truck owned and driven by Harley Shirrell. Five or six hours later Shirrell felt “knocked out all over,” two or three hours later he suffered pains and was unable to move his legs, and 14 days later he died. A special administrator of Shirrell’s Estate sued, and recovered judgment against Chambliss and the said corporation for several items of damages including $20,000 for pain and suffering.

Appellants, Chambliss and the said corporation, have appealed on two grounds only. One. There is no substantial evidence to show a causal relation between the accident and Shirrell’s death. Two. The award of $20,000 for pain and suffering is excessive.

One. After a careful examination we have concluded there is substantial evidence to support the jury’s finding of a causal connection. To substantiate our conclusion it is necessary to set forth at some length the pertinent facts and circumstances as disclosed by the record.

On January 3, 1957, Harley Shirrell of Myrtle, Missouri, 58 years of age and. in apparent good health, was driving his pickup truck south on Highway 67 below Pocahontas, Arkansas, between 5:30 and 6:00 a.m. at a time when it was dark, when his truck was struck from behind on the left rear corner by a tractor-trailer unit owned by Victor Metal Products Corporation and driven by Elbert Chambliss. The immediate result of the impact was; frame was bent, the bumper and back of the cab of the pick-up truck were damaged and the front end of the tractor-trailer truck skidded against the bank of a ditch on the right side of the road. Shirrell told a State Trooper, who arrived at the scene of the accident soon after it happened, that he was not hurt. Shirrell then walked up the road about a mile to make a telephone call. About four hours later (around 10 a.m.) he arrived home and told his wife he didn’t think he was hurt, but she said she thought he appeared nervous. Shirrell then went with a neighbor to Alton, Missouri concerning the papers on his truck. He returned from this trip, ate lunch, and at 1 p.m. went to the store across the road which he and his wife operated. At that time he said “there is a funny feeling in my legs,” and also said “Oh my back.” Thereupon a neighbor, Mr. Hyde arranged to take him to Dr. William Carhart at Alton. Shirrell could not walk to the car but, as Mrs. Shirrell put it, they had to push his feet along or just scoot him along. The Doctor found him incoherent and partially paralyzed from the navel down, and gave him medication including aspirin. Shirrell was returned home and the next morning was put in a car for transportation to a hospital in Jonesboro. However when they arrived at Pocahontas he was unable to proceed on the journey. Dr. Carhart was contacted by phone and he advised they bring him to his office. This was done, and then he was taken back home where he was treated and died on January 17, 1957.

The testimony of Dr. Carhart was, in substance, as follows: On January 3, I saw Mr. Shirrell after he had been in an accident — he was unable to move his legs, complained of severe pains in his legs and told me he had been involved in an accident. His temperature was 98 degrees which is helow normal. I X-rayed his skull, chest, abdomen, back and lower extremities. His particular complaint was inability to move and had no feeling from his waist down — his reflexes were normal but he did not react to electric stimuli, he did not notice an electric shock — he didn’t feel it at all from his navel down, above the navel he did feel it — no reaction from the navel down, front, back or side. We used a sharp needle to penetrate the skin but there was no reaction to it below the navel but reaction above the navel. A urinalysis showed there was a little blood. Q. “Did you reach any conclusion in your examination of Mr. Shirrell?” A. “Yes, I did. I suspected traumatic psychoneurosis shock.” Shirrell was mentally incoherent at moments when I first saw him • — ■ he kept speaking of the accident — at times he knew he was in my office and at times I don’t think he did know exactly where he was. An examination of his heart and blood pressure showed blood pressure 145/81, pulse good, steady at 62 per minute, respiration good — blood pressure considered normal for a man of his age. My recommendations as to treatment were: Diet, medication, rest, rehabilitation, passive exercise of the body and extremities. The diet was to be liquids or fluids. In the way of medication, I used Thorazine, which is a tranquilizer, and I used aspirin. I recommended taking Mr. Shirrell to a hospital the next morning. The next day they started to take him to Jonesboro but when they got to Pocahontas Mr. Shirrell couldn’t proceed any further and they stopped there and called me. I told her to keep him there. Mrs. Shirrell called me again in the evening and I told her to bring him up and he came back to my clinic the next morning. I saw Mr. Shirrell again on the 5th when he was brought in an ambulance to my clinic — I found his condition was progressively worse — he had the same trouble except it was worse and he complained of severe pain in his chest and skull at that time, it was more pronounced. He was incoherent and I called a specialist in Springfield. I repeated my examination of him and I concluded that he had the same difficulties only he was worse. I advised Mrs. Shirrell that he should be moved to a hospital but she wanted him returned home — in my opinion there was nothing that could have been done at a hospital that couldn’t have been done for him at home. I saw him at his home the next day on the 6th but I was in 24 hour contact with the Shirrell family. On the 6th there' was no improvement — the same things were wrong with him and he was incoherent ■ — ■ he thought he was a little boy and he kept recalling facts that even the Shirrell family had forgotten. The next time on the 8th I found his condition the same — I didn’t make any recommendations except to continue the treatment as prescribed. On the 8th Shirrell was complaining of severe pain in the chest and skull —- the next time I saw him was on the 12th and his condition was unchanged, he was definitely incoherent and the case was marked critical and the family was so advised. He was in pain at the time because there was severe moaning and he would hold his head and skull, and the moaning was continuous. Next time was on the 14th and found no change — next time on the 16th and the patient was in a coma. On the 14th he was making sort of a crying noise and moaning, he died on the 17th. Shirrell was unable to control bladder and bowels during his sickness.

On cross-examination the doctor stated: “A person sick independent of wounds would demonstrate pathology if they were diseased. If a pérson had pneumonia they would demonstrate pathology to the lungs. Shirrell did not have pneumonia — I never changed my diagnosis — it was acute traumatic psychoneurosis shock. In explaining the doctor’s statements he said: “Traumatic is caused or relating to an injury. Psychoneurosis is a functional condition, disorder of mental origin without benefit of clinical demonstration of a lesion, fracture or wound. You can’t find a full definition of traumatic psychoneurosis shock in the dictionary. Trauma indicates some sort of a blow or an injury. Q. “Didn’t this man have a mental condition?” A. “There was a possibility he could have. ’ ’ Q. “Why did you classify it as psyehoneurosis1?” A. “Because he lost the value of reality.” He was a psyehoneurosis patient — there is such a thing as traumatic psyehoneurosis — traumatic psyehoneurosis would be an injury to the system, and we couldn’t demonstrate any lesion, wound or pathology. To link traumatic psyehoneurosis together the trauma would, come from the accident, possibly unknown to Mr. Shirrell. The truck hitting him from behind would possibly cause a mild whiplash injury to his system, which he at the moment ignored. Whiplash injury is a blow and would be most generally without the knowledge of the victim, a blow from the back. I suspicioned at the time Mr. Shirrell came to see me a whiplash injury but when I couldn’t elicit any dislocation from the X-rays, 1 ruled that out. Mr. Shirrell walked away from the accident and complained only later; then I was suspicious. There is a possibility that paralysis of the legs could have been caused by a mental condition, paralysis of the legs is an organic symptom.

On redirect the doctor stated: “I considered an injury to the vertebral column but not finding any external proof lacerations or marks we ruled that out. After hearing the testimony of Dr. Bean I have not changed my mind of the diagnosis of the trouble of this man. For a man of normal health as Mr. Shirrell was, 1 would attribute his condition to an accident.”

The Dr. Bean mentioned above was called to testify for appellants. He is an Osteopathic Physician, well qualified. After all the facts and circumstances of this case were fairly placed before him in a lengthy hypothetical question, he was asked if there was any direct causal connection between the traffic accident and Shirrell ’s condition and death. His answer was: “My opinion is that it could have no bearing whatsoever since the lapse of time was 6 hours or a little bit better.”

Assuming, though it is not made clear, Dr. Bean meant to say that in his opinion there was no connection between the accident and Shirrell’s condition and death, it still leaves open a question for the jury. Dr. Car-hart attributed Shirrell’s condition to the accident, and Dr. Bean did not. The jury had the right not only to believe the one and disbelieve the other but to consider which doctor’s testimony more nearly conformed to all the facts and circumstances of the case. Both doctors agree that Shirrell’s symptoms and condition indicated some kind of an injury to or malfunction of the spinal cord. The jury could have believed this spinal cord condition was the result of the severe blow or whiplash especially in view of the absence of any other explanation. We recognize that appellee bore the burden of showing a causal connection, as stated in Jonesboro Coca Cola Bottling Co. v. Young, 198 Ark. 1032, 132 S. W. 2d 382 and other decisions of this court, but this again, involved a question of evidence and the weight to be given it by the jury.

Appellants cite Missouri Pacific Railroad Co. v. Hampton, 195 Ark. 335, 112 S. W. 2d 428 for the rule that where the evidence is uncertain, and two or more things might have brought about the injury, there can be no recovery. This is merely another way of saying, as this court has said many times, that a jury’s verdict must be based on evidence and not on speculation, and it does not, we think, preclude a recovery here. Here there are, as heretofore pointed out, many facts and circumstances together with the positive statement of Dr. Carhart pointing to the conclusion reached by the jury. On the other hand there is no evidence that any thing else might have caused the injury to Shirrell’s spinal cord.

Two. We cannot say there is no substantial evidence to support the jury’s verdict for pain and suffering in the amount of $20,000. The testimony relating to this feature of the case has already been set forth and it would serve no useful purpose to repeat it. There is, as we have said on many occasions previously, no definite or satisfactory rule to measure compensation for pain and suffering. Where there is substantial evidence to support the jury’s verdict, as we believe there is here, and there is nothing in the case to indicate passion, prejnotice, or an incorrect application of the law, as in the case here, this court will not disturb the award of the jury. See: Coca Cola Bottling Co. v. Cordell, 189 Ark. 1132, 76 S. W. 2d 307, Arkansas Motor Coaches v. Williams, 196 Ark. 48, 116 S. W. 2d 585, and Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602.

It follows from what we have said that the judgment of the trial court must be affirmed.

Cross-Appeal. The jury found that 25 per cent of the total negligence was attributable to Shirrell, from which finding appellee has cross-appealed. We are unable to say the jury was wrong as a matter of law. We find in the record substantial evidence to support the jury’s verdict. The evidence discloses that it was dark when the pick-up truck was hit from behind by the tractor-trailer truck driven by Chambliss. Chambliss testified that if Shirrell had a tail light on his pick-up it was not burning or he could not see it. He also stated that he told Shirrell this and that Shirrell stated it (the tail light) had been in the habit of going out. None of the testimony is denied or refuted, and is, we think, substantial evidence of negligence.

Affirmed on direct appeal and on cross appeal.

McFaddin, J., not participating.


author: Sam Robinson, Associate Justice.

text:
    Lambert v. Lambert.
    5-1631
    316 S. W. 2d 822
    Opinion delivered October 20, 1958.

      Lester E. Dole, Jr., for appellant.

      James M. Rowan, Jr., for appellee.
   Sam Robinson, Associate Justice.

This is a divorce suit. Appellant, Bernadette Lambert, and appellee, Robert W. Lambert, were married in the State of Rhode Island in 1942. The parties have one child, Suzanne, born August 18, 1946. In August, 1954, Mr. Lambert, who worked for the American Paper and Tube Company, was transferred to Port Gibson, Mississippi. Later he was joined in Mississippi by his wife and daughter. On September 12,1955, Mrs. Lambert and Suzanne left Mississippi and returned to Rhode Island. A few days thereafter, on September 23, 1955, Lambert filed suit for divorce in the chancery court of Claiborne County, Mississippi. He alleged in his complaint that “without just cause or any fault on the part of complainant, the defendant, Bernadette Lambert, departed Port Gibson and returned to her home in "Woonsocket, Rhode Island.” Mr. Lambert also alleged that Mrs. Lambert had treated him “in an habitual cruel manner”, naming the ■particulars of such alleged treatment. Mrs. Lambert answered, denying the allegations of the complaint, and filed a cross complaint in which she asked for separate maintenance. A trial was had upon the issues joined. Lambert’s complaint Avas dismissed and Mrs. Lambert was granted separate maintenance on her cross complaint.

On September 8, 1957, Lambert filed the present suit for divorce in the chancery court of Ouachita County, Arkansas. As grounds for divorce he alleged desertion and indignities. Mrs. Lambert answered, denying those allegations of the complaint setting out grounds for divorce, and she asserted the affirmative defense of res judicata. It was stipulated by the parties in open court that all matters of personal indignities were res judicata. The court granted Mr. Lambert a divorce on the ground of desertion, and Mrs. Lambert had appealed.

Appellant raises several points, among which is that the issue of desertion is res judicata. We agree with appellant in that respect and reach only that point. Although in the Mississippi case Lambert did not allege desertion as a statutory ground for divorce (the parties had been separated only about ten days when suit was filed), he did allege that Mrs. Lambert had deserted him without just cause. The record of all the evidence in the Mississippi case was introduced in the trial of the present action. It can be seen that one of tie most vigorously contested issues in that case was whether Mrs. Lambert left Mississippi and returned to Rhode Island because of ill treatment by Lambert, or whether she deserted him without just cause, and the chancellor’s decree was in favor of Mrs. Lambert. A finding in favor of the wife in a separate maintenance action is not necessarily a finding that the husband has no grounds for divorce. Hill v. Rowles, Chancellor, 223 Ark. 115, 264 S. W. 2d 638. But here the issue of whether Mrs. Lambert deserted her husband without just cause in September, 1955, was stoutly contested in the Mississippi court. In Mississippi a wife will be denied separate maintenance where she has deserted her husband without just cause. Wilson v. Wilson, 198 Miss. 334, 22 So. 2d 161. Therefore, in granting Mrs. Lambert separate maintenance the Mississippi court must have concluded that she was no deserter. Especially is this true, since the very question of whether she deserted her husband was an issue in the case. Hence the only issue in the case at bar — that is, whether Mrs. Lambert deserted her husband —is res judicata.

If Mrs. Lambert did not desert her husband, within the meaning of that term as applied to a divorce action, in September, 1955, she has not deserted him at any time. Because the wife leaves her husband does not necessarily mean that she has deserted him. In Wickliff v. Wickliff, 191 Ark. 411, 414, 86 S. W. 2d 553, the court said: “. . . where a spouse intentionally brings the cohabitation to an end by misconduct which renders the continuance of the marital relations so unbearable that the other leaves the family home, the former, and not the latter, is the deserter. ’ ’

Appellee attempts to make a point of the fact that appellant’s answer was not filed within the time prescribed by Ark. Stats. § 27-1135. His brief contains no citation to the record wherein the point was raised in the lower court. The designation of contents of record on appeal does not designate any motion or pleading wherein the issue was raised. This is not a matter that can be raised for the first time on appeal.

Since Mr. Lambert’s alleged cause of action, desertion, is res judicata, that part of the decree granting a divorce must be reversed. It is so ordered.


author: Carleton Harris, Chief Justice.

text:
    Weatherford v. George.
    5-1639
    317 S. W. 2d 147
    Opinion delivered October 27, 1958.
    [Rehearing denied November 24, 1958]

      8. Hubert Mayes, for appellant.

      Langston •& Walker, for appellee.
   Carleton Harris, Chief Justice.

Appellee, Charlie W. George, is a school bus driver, and his wife, Susie George, a teacher. On the morning of November 15, 1956, around 8:30 a.m., George stopped the bus on Highway 10 to pick up school passengers, including appellee, Susie George. Ross Weatherford was driving his Ford pick-up truck east on Highway 10 toward Little Rock, by his statement, “ * * * not over 50 miles an hour. ’ ’ It had' been raining, and the highway was slick. According to his testimony, he observed the school bus approaching from the opposite direction at least a quarter of a mile away, and knew that it was a school bus. He stated that when the bus stopped and put out the stop sign, he was about 143 feet away; that he applied his brakes, and the truck began to skid. The skidding truck missed the bus, but struck Mrs. George, who was approaching to board the bus. She received serious injuries. Suit was instituted by the Georges against Weatherford and V. L. Beavers, V. Stackhouse, R. Y. Williams, and T. A. Hazard, doing business as Y. L. Beavers, Engineers, a partnership, it being alleged that Weather-ford was an employee of Y. L. Beavers, Engineers, and was acting within the scope of such employment at the time of striking Mrs. George. Weatherford filed a general denial, and Beavers, Stackhouse and Williams, asserting that they were the only members of the partnership, set up in their answer and amendment thereto, that Weatherford was not acting within the scope of his employment, denied all material allegations relative to his alleged negligence, and specifically pleaded unavoidable accident as an affirmative defense. The amended answer asserted that George improperly brought the school bus to a stop, improperly displayed the stop signal, and was improperly parked; that this handling of the bus by George caused Weatherford to be confronted with an emergency, and the latter did what appeared to be proper and reasonable at the time, and under the circumstances. The cause proceeded to trial, and at the conclusion of the evidence, the court inter alia instructed the jury that Weatherford was, at the time of striking Mrs. George with the truck, “on business for the defendant in the course of his employment.” Six special interrogatories were submitted, and the jury returned its verdict, finding that Weatherford was negligent, and that such negligence was the proximate cause of the injuries and damages; finding that neither Susie George nor Charlie George was guilty of any negligence whatsoever, and awarding damages to Mrs. George in the sum of $25,000 and to Mr. George in the amount of $2,868.06. From the judgment entered against appellants, comes this appeal.

For reversal, three points are urged.

I.

The Court erred’in declaring as. a matter of law that Ross Weatherford, Jr., was at the time of the accident, the agent, servant and employee of the appellant, Y. L. Beavers, Engineers, and was acting in the course of his employment. This error was committed by the giving of Appellees’ Instruction No. 5 and refusing to give Appellants’ Requested Instructions No. 6 and No. 12.

II.

The Court erred in refusing to give Appellants’ Requested Instruction No. 11.

III.

The Court erred in refusing to give Appellants’ Requested Instruction No. 13.

We proceed to a discussion of each point in the order listed.

I.

The only evidence included in the transcript consists of the answers given to interrogatories propounded to R. Y. Williams and Ross Weatherford, and the oral testimony of Weatherford. Appellees’ Instruction No. 5, objected to by appellants, reads as follows:

“You are instructed that the liability of the defendants, Y. L. Beavers, Y. Stackhouse and R. Y. Williams, doing business as Y. L. Beavers, Engineers, is based upon the rule that an employer is liable for the actionable negligence, if any, of its employee, Ross Weatherford, causing injuries and damages, if any, to the plaintiff, while such employee is in the course of his employment. In this case, the Court tells you that Ross Weatherford was, at the time he struck Mrs. George with his truck, on business for the defendants in the course of his employment. You are further instructed that if you find from a preponderance of the evidence that the negligence, if any, of their employee, Ross Weatherford, was the sole proximate cause of the plaintiff’s injuries and damages, if any, then you will answer Interrogatory No. 1 in the affirmative and Interrogatories No. 3 and No. 5 in the negative.”

Appellants’ Requested Instructions No. 6 and No. 12, refused by the Court, are as follows:

“You are instructed that the plaintiffs seek to recover against the defendant, Y. L. Beavers, Engineers, on the allegation that Ross Weatherford was at the time of the accident acting as their agent, servant and employee and within the course of his employment with them. In this connection, you are instructed that the burden of proof is on the plaintiffs to prove these allegations by a preponderance of the evidence.”

“You are instructed that the burden of proof is upon the plaintiffs to prove that Ross Weatherford, was at the time of the alleged accident, acting as the agent, servant and employee of the defendant, Y. L. Beavers, Engineers, and, further, that he was acting within the scope of his employment.”

We are unable to agree with this contention. R. V. Williams, a member of the partnership known as Y. L. Beavers, Engineers, in answer to interrogatories, testified that he personally hired Weatherford, and that his employment began at 8:00 a.m. on November 15, 1956. From his testimony:

“4. Did you pay Ross Weatherford for time in your employment for the date of November 15, 1956?

A. Yes.

5. If so, for how many hours of work did you pay Ross Weatherford for work performed on date of November 15, 1956?

A. 8 hours.

6. What work was Ross Weatherford performing for you at approximately 8:30 a.m. on November 15, 1956?

A. He was to meet me at the Highway Department office at 10:00 a.m.

7. Did you pay Ross Weatherford for the use of his truck in your service for the day of November 15, 1956?

A. Yes.

8. Did you hire the truck owned by Ross Weather-ford and agree to pay a certain rate per mile to Weather-ford for use of the truck?

A. Yes. 8 cents per mile.

9. Did you pay Weatherford for mileage for use of the truck on November 15, 1956, the truck having been used in your service on November 15,1956?

A. Yes.

10. State whether or nor Weatherford’s 1953 Ford pick-up truck was being used in your service and being driven by Weatherford on or about 8:30 a.m. on November 15, 1956?

A. He was going to meet me at the Highway Department at 10:00 a.m.

* * *

15. State whether or not Ross Weatherford was in your employ on November 15, 1956, at approximately 8:30 a.m.

A. His time began at 8:00 a.m., and he was going to meet me at the Highway Department office at Little Rock at 10:00 a.m.

16. State whether or not you, or one of your employees, had instructed Ross Weatherford that his time was to start at 8:00 a.m. on November 15, 1956, and that his mileage for his truck would begin at that time, that Weatherford should drive from Weatherford’s home to the State Highway Department in Little Rock, that Weatherford would be paid for mileage on his truck from his home to the highway department?

A. Yes.” ■

Weatherford testified that he- left his home in Perryville about ten minutes until eight, dropped his young daughter off at school and then started out for Little Rock. Relative to his employment, he testified, in answer to interrogatories propounded to him:

“1. Were you employed by Y. L. Beavers, Engineers, on or about November 15, 1956?

A. Yes.

2. It is true that your employment began with Y. L. Beavers, d/b/a Y. L. Beavers, Engineers, on November 15, 1956, at 8:00 a.m.?

A. Yes.

3. Is it true that you were using your truck in your work for them?

A. Yes. * * *

7. Is it true that you were on the payroll of V. L. Beavers on the morning of November 15, 1956, at approximately 8:30 a.m. when you had a collision in your truck with Mrs. Susie George on Highway No. 10, approximately eight miles west of the Little Rock city limits ?

A. Yes.

8. Were you on duty and working for V. L. Beavers at the time you struck Susie George with your truck at about 8:30 a.m. on November 15, 1956, on Highway No. 10 approximately eight miles west of the Little Rock city limits?

A. Yes. * * *

11. At the time of the accident complained of in the complaint on November 15, 1956, at 8:30 a.m., were you working under instructions given you by R. V. Williams who was doing the work for Y. L. Beavers on the highways of Arkansas at the time of the accident complained of in the complaint?

A. Yes.”

There is no testimony that conflicts in any manner with the above evidence, and we are accordingly of the opinion that the court acted properly in giving Instruction No. 5 and in refusing to give Appellants’ Requested Instructions No. 6 and No. 12. As stated in Mullins v. Ritchie Grocer Co., 183 Ark. 218, 35 S. W. 2d 1010:

u* * * infererice or presumption of fact, * * * may be rebutted or overcome by evidence adduced by the defendant during the trial. Where the evidence * * * is contradictory, the question is one for the jury. Where the facts are undisputed and uncontradicted, it becomes a question for the court.”

Again, in Braman and The Gus Blass Co. v. Walthall, 215 Ark. 582, 225 S. W. 2d 342:

“The evidence on behalf of appellees as to publication of the alleged slander appears to be uncontradicted and we have frequently held that it is not necessary to submit to the jury an issue established by undisputed. evidence.”

See also Sutton & Collier v. Kesterson, 199 Ark. 269, 133 S. W. 2d 450.

II.

Appellants requested the following instruction, which the court refused to give.

“You are instructed that if you find from the evidence in this case that Charlie W. George was guilty of negligence and that such negligence, if any, was the sole proximate cause of this accident and resulting injuries, then your verdict will be for the defendants.”

Whether the failure to so instruct was erroneous, is immaterial under the circumstances in this case. Appellants’ Requested Instruction No. 8 was given, in which the statute relating to the duties and obligations of a school bus driver was quoted, and the jury was told:

“ * * * If you find from a preponderance of the evidence in this case that the plaintiff, Charlie W. George violated this Statute, then you are told that such violation, if you find that he did violate the Statute, is prima facie evidence of negligence. By prima facie evidence of negligence, the Court does not mean that a violation of the Statute, if you find there was a violation, is of itself necessarily sufficient to constitute negligence, but the Court does mean that you should take such violation, if you find there was a violation, into consideration with all the other facts and circumstances of the case in arriving at whether or not the plaintiff, Charlie W. George, was negligent as negligence is defined in these instructions.”

The question of negligence on the part of Charlie George was submitted to the jury in Special Interrogatory No. 5, reading as follows:

“Do you find from a preponderance of the evidence that Charlie George was negligent and that such negligence, if any, was a proximate cause of his damages, if any, complained of by him?”

The jury answered this interrogatory “no”, and in Interrogatory No. 6:

“Using 100 per cent to represent the total negligence involved, what do you find from a preponderance of the evidence to be the amount of negligence on the part of the following:

Charlie George: ‘None’ per cent

Ross Weatherford: ‘100’ per cent”

It certainly follows, that if the jury found George guilty of no negligence whatever, they would not have found that negligence on his part was the ¡proximate cause of the mishap. Accordingly, even if the failure to give the instruction was error, the verdict rendered by the jury had the effect of healing or remission.

III.

Appellants requested that the following instruction be submitted to the jury.

“You are instructed that if you find from a preponderance of the evidence that Boss Weatherford was driving down that highway at a rate of speed not exceeding 50 miles an hour, which is a lawful speed, and he was on his proper side of the road, and that when he applied the brakes to his truck, that his truck then skidded out of control as a result of the condition of the highway, over which he had no control and which he could not have foreseen in the exercise of ordinary care, then you are instructed that Boss Weatherford would not be guilty of negligence in this case and your verdict would be for the defendants.”

Without entering into a discussion of whether the instruction was proper or improper (though we have reached the latter conclusion), let it suffice to say that the theory of unavoidable accident, as well as emergency, was clearly submitted to the jury by Appellees’ Instruction No. 7, and Appellants’ Instructions No. 1 and No. 3. These instructions, together with the others submitted by the court, fairly presented appellants’ theory of the cause of the accident.

Finding no reversible error, the judgment is affirmed.

       From the testimony: “Well, it was kind of dark and it had been raining back up the road a few miles, but it had slacked up and was still dark, you know, at the time of the accident. It wasn’t raining at that time and I saw the bus. I saw the bus coming down the road for at least a quarter of a mile and I knew it was a school bus, but I was driving along there and the school bus wasn’t stopped, and the first time— when the bus stopped is when I applied my brakes, and that is the first time I saw the stop sign on the bus.
      Q. And then when you saw this stop sign on the bus, what did you do?
      A. I applied my brakes.
      Q. You applied your brakes and when you applied your brakes, what happened?
      A. Well, the back end of the truck flew off the highway on the right hand side. It left the blacktop and it headed right toward the school bus. Well, there was only one thing in my mind, to try to stay out of that school bus and that is what I did.”

       The answer alleged that Hazard was not a member, and that the partnership had been erroneously sued. Other motions were made, but are not involved in this appeal,

       No judgment was entered against Hazard.

        Appellees’ No. 7. “You are instructed that the term ‘unavoidable accident’ means an accident which was not due to the negligence of either the driver or of the pedestrian, but was due to a series of events or circumstances not in the control of either the driver or the pedestrian and consequently not the fault of either the driver or the pedestrian.”

        Appellants’ No. 1. “You are instructed that if you find from the evidence in this case that the accident was brought about as a result of unavoidable accident, then you will answer Interrogatory No. 1 in the negative.”

        Appellants’ No. 3. “You are instructed that when a person is driving a truck and is confronted by an emergency which is brought about without any negligence on his part, then it is the duty of such person to take necessary action to prevent injury to himself or other persons, or damage to property. Although it may appear afterwards that he was mistaken in the action he took and that some other course might or would have been better, if the driver, when confronted with the emergency, was not guilty of negligence in making the decision and taking the course he took, then he would not be liable for a mistake of judgment and would not be liable for any damage to persons or property caused by his actions.”


author: J. Seaborn Holt, Associate Justice.

text:
    Washington Transfer & Storage Co. v. Harding.
    5-1642
    317 S. W. 2d 18
    Opinion delivered October 27, 1958.

      Wade <& McAllister, Rex W. Perhms, Ed E. Ashbaugh, for appellant.

      Peter G. Estes, for appellee.
   J. Seaborn Holt, Associate Justice.

On September 28, 1956, appellee filed an application with the Arkansas Public Service Commission seeking a permit to operate intra-state as a common carrier of household goods between points and places in Washington County and points and places in the State of Arkansas at large. Appellee alleged in its application that for about three months prior to its application, Washington County was being served by appellants, Washington Transfer and Storage Company and Red Ball Transfer & Storage Company, Inc., two licensed carriers which had merged into one company, thereby leaving only one carrier of household goods in Washington County and the territory affected. Appellee further alleged that the appellants had merged into an organization and was “under the domination of one family until competition was destroyed contrary to Sec. 14 of the Arkansas Motor Carrier Act, found in Ark. Stats. 1947 annotated, Yol. 6B, See. 73-1767 (b), which says: ‘The transfer, lease, assignment or hypothecation of the permits and/or certificates and/or. licenses shall not be authorized where the commission finds such action will be inconsistent with the public interest, or will -have the effect of destroying competition or creating a monopoly.’ 2. That Fayetteville, Springdale and Washington County had grown tremendously without additional service. 3. That the present permittees had been rendering slow, unsatisfactory and inadequate service. 4. That the applicant was able and willing to perform the service and abide by the rules of the commission. 5. That there was a need for such additional service which would benefit the general public. All of which would indicate that public convenience and necessity required the additional service and the granting of the permit. ’ ’

A number of witnesses were presented by appellee before the commission in support of its contentions and appellants offered only four in protest and two of them were from Little Rock. The commission (by a vote of 2 to 1) on November 8, 1956 granted appellee’s application for a permit. Its findings and order contained these recitals: “. . . Applicants in this proceeding seek authority to pick up and deliver household goods at any point or place in the State of Arkansas when originating at or destined to points in Washington County. They have been in the Southwest Piano and Yan Service since 1950. Applicants have a concrete and tile fireproof building 100 by 50 feet, with 5,000 cubic feet of floor space and are affiliated with Burnham American Yan Lines of Columbus, Georgia. The Southwest Piano Company has two trucks with 18 foot van type bodies and a Fruehauf tandem trailer 33 feet in length. In addition, a pickup truck is used for light hauling.

Moving in this territory is unusually heavy, population considered, due partly to the large number of students moving to and from the University of Arkansas area. The City of Fayetteville has had an increase in population of 180 per cent from 1930 to 1950 and the figures projected to 1960 indicates an increase of 211 per cent over 1930. Representatives from the University, real estate and insurance firms, and others testified to the inadequacy of the presently authorized household goods carriers. Frequent and consistent delays have been encountered in getting moves made. Testimony of some witnesses was to the effect that they were delayed several days in getting moved. Financial statement of applicant shows assets of $21,782.63, including cash in bank $967.35, inventory $4,111.50 and accounts receivable $13,855.48. Liabilities amount to $3,-687.25. Furniture vans and equipment are already owned,” and further “That present and future public convenience and necessity require the proposed operation; 2. That applicant is fit, willing and able, financially and otherwise, properly to perform the proposed service and to conform to the provisions of the Arkansas Motor Carrier Act, and to the rules and regulations of the Commission promulgated thereunder; and 3. That the application should be granted.” The order of the commission was affirmed on appeal to the Pulaski Circuit Court, and from that judgment comes this appeal.

For reversal appellants contend (1) that the applicant (appellee here) must prove conclusively that the existing service in the area affected is inadequate, that public convenience and necessity require such additional service and the ability of applicant financially and otherwise to perform and (2) that the granting of appellee’s application would give it an unfair advantage over existing carriers.

1 and 2

This case comes to us for trial de novo. Therefore, unless we find the findings and order of the commission, and that of the circuit court on appeal, to he against the preponderance of the testimony we must affirm. The rules guiding us on appeal in cases such as this have been announced many times by this court. We reannounced these rules in the case of Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604, where we said: u* * * it must be remembered that we are dealing with the finding of a tribunal erected by the legislature for the special purpose of investigating and determining matters of the nature here involved; and the finding of such a tribunal on a fact situation may not be upset by the courts unless the finding is clearly against the weight of the testimony. ... A point not to be lost sight of here is that de novo review by the courts, including this court, must not proceed as though the Public Service Commission did not exist and had never held a hearing. A hearing has been held, and the Commission which held the hearing has had the advantage of seeing and hearing the parties and witnesses face to face, whereas the circuit court and this court review the evidence from the record only. Where a matter is heard and decided by an administrative body such as the Public Service Commission, an order made by it should be upheld by the court on appeal unless it is against the weight of the evidence. . . . We try cases of this kind de novo, but it is the duty of the courts to accord due deference to the finding of the Commission, since it is the agency upon which the General Assembly has placed the duty to investigate and determine, in the first instance, the need for any proposed motor carrier service.” See also Ark. Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S. W. 2d 118.

It is significant that of the some 48 protestants against the issuance of the permit only four testified opposing it, and two of these (Mr. Moore and Mr. Gathright) admitted they knew little if anything of conditions in Washington County. Mr. Moore testified that he lives in Little Eock and is vice-president of the O.K. Van and Storage Company; that Little Eock is 195 miles from Fayetteville; that the idle equipment of his company is not available for local moving in Washington County, that his company frequently hauled a load in excess of 4,000 pounds from Little Rock to Fayetteville hut it has never made a haul from Fayetteville to points in Northwest Arkansas. Mr. Gathright, .who lives in Little Rock and owns and operates the Gathright Van and Storage Company, tended to corroborate Moore’s testimony and further testified,: “Q. You have a permit and you don’t want anybody else to have one? A. I certainly don’t.”

After a careful review of all the evidence presented, which we do not detail here, we have concluded that the preponderance thereof supports the findings and order of the commission and the judgment of the Pulaski Circuit Court. Accordingly, the judgment is affirmed.

Mr. Justice Ward dissents.


text:
    Goins v. Sneed.
    5-1596
    317 S. W. 2d 269
    Opinion delivered October 27, 1958.
    [Rehearing denied December 1, 1958]

      Brockman & Brockman, for appellant.

      Boyce R. Love £ Jay W. Dickey, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal presents questions concerning (a) limitations and (b) methods of accounting.

For many years E. E. Goins rented land to John Sneed and advanced him money and supplies for cultivation of the land and harvesting of the crops. In addition to the landlord’s lien for the advances, Mr. Goins also had two mortgages as security. One was executed on November 27, 1950, and in addition to securing a specified note, also provided:

‘ ‘ This mortgage shall also be security for any other indebtedness of whatsoever kind that the grantee or holders or owners of this mortgage may hold against grantors by reason of future advances made hereunder, by purchase or otherwise, to the time of the satisfaction of this mortgage.”

The other mortgage was dated July 6, 1953, and secured a described note and was also for the payment of “. . . goods, merchandise, or supplies, live stock, advances or acceptances furnished, and which may be furnished by second party or parties to first party or parties, the exact amount to be determined by the books of the second party or parties and- due and payable on the 1st day of November, 1953.” There does not appear to have been any settlement of accounts between John Sneed and E. E. Goins after the 1950 note.

On August 17, 1953 John Sneed, a widower, died intestate, survived by several sons and daughters. Three of the sons (L. G. Sneed, Nelson Sneed, and Garland Sneed) and one daughter (Rebecca Sneed Hamilton), all of full age, agreed to complete the 1953 crop and apply the proceeds on the John Sneed indebtedness to Mr. Goins. This was all done; and according to Mr. Goins’ accounts, there was still due him, after all credits, a substantial balance secured by the John Sneed mortgages.

In 1954, some or all of the said four adult Sneed children continued to use the John Sneed farming equipment (mortgaged to Mr. Goins), and rented and cultivated the same lands. Mr. Goins continued to advance money and supplies to the said Sneed children, apparently relying on his landlord’s lien and the John Sneed' mortgages. The tacit understanding seems to have been that if the said Sneed children were able to satisfy the mortgage indebtedness of John Sneed to Mr. Goins, then the John Sneed heirs would receive the mortgaged property. There was never any administration on the estate of John Sneed, and no other creditors are'mentioned in the record before us.

The 1954 arrangement between the said Sneed children and Mr. Goins was continued by mutual consent for the crop year of 1955. Mr. Goins refused to continue the arrangement for 1956; and on May 28, 1956 filed the present suit against all of the Sneed heirs for judgment for $2,455.99, together with interest from November 22, 1955; and for foreclosure of the two mortgages executed by John Sneed to Mr. Goins. The defendants filed general denial, denied portions of the claimed indebtedness, and also pleaded limitation against each and both of the mortgages executed by John Sneed to Mr. Goins. After an extended trial, the learned Chancellor delivered a written opinion, in which he held: • *>

(1) That all indebtedness incurred by John Sneed to Mr. Goins prior to May 27, 1953 was barred by the 3-year statute of limitation, since this suit was not filed until May 27, 1956; but that all advances made by Mr. Goins to John Sneed after May 27, 1953 up to the time of his death were valid and secured by the mortgages.

(2) That the dealings for 1954 and 1955 between Mr. Goins and the Sneed children were entirely separate from the John Sneed matters and that the Sneed children had overpaid their account by the sum of $2,733.75 ; but that they had not asked for judgment, so none was rendered.

(3) That during the course of the litigation Mr. Goins had obtained possession of some of the mortgaged chattels by receivership proceedings; and that this can-celled any claim that Mr. Goins had under the John Sneed mortgages.

(4) That Mr. Goins’ accounts were in error in a few instances, which we will discuss in Topic III, infra.

From that decree both sides have appealed: Mr. Goins claiming he is entitled to judgment for the amount prayed and for the foreclosure of the mortgages; and the Sneed children claiming that they are entitled to judgment against Mr. Goins for overpayment. The questions presented are discussed in a number of points; but we group and dispose of them in the following topic headings:

I. Limitation against Goins’ Bight to Foreclose The John Sneed Mortgages. The Trial Court was of the opinion: (a) that the 3-year statute of limitation 37-206 Ark. Stats, on open accounts) applied to the indebtedness due by John Sneed to Mr. Goins;- (b) that the statute continued to run after John Sneed’s death, so; (c) that all items furnished more than three years before the filing of the suit (May 27, 1956) were barred by the statute of limitation. Without deciding whether the 3-year statute of limitation or the 5-year statute of limitation would be applicable (because of the provisions in the notes and mortgages sued on), we nevertheless conclude that no statute of limitation had run against Mr. Goins when he instituted his suit to foreclose the mortgages on May 27, 1956.

When John Sneed died on August 17, 1953, none of his indebtedness to Mr. Goins was barred by any statute of limitation: he had executed a mortgage on the 27th of November, 1950 and none of his indebtedness was due until the fall of 1951; and John Sneed had also executed a mortgage on July 6,1953. In Bowdre & Co. v. Pitts, 94 Ark. 613, 128 S. W. 57, we held that when a debtor died before the right of action against him was barred by limitation, the “general statute of limitation then ceased to run against the debt and was succeeded by the 2-year statute of non-claims, which did not begin to run before administration on the estate of the decedent. . . The action to foreclose the mortgage was, therefore, not barred and the Chancellor erred in dismissing the complaint . . .” That holding was reiterated in Montgomery v. Gant, 100 Ark. 629, 140 S. W. 260.

Applying these holdings to the case at bar, it follows that none of the indebtedness of John Sneed to Mr. Goins was barred by the statute of limitation because (a) no limitation had run before John Sneed’s death; (b) there was nothing to show any holding adverse to Goins’ mortgages; and (c) there was no administration on the estate of John Sneed. So, Mr. Goins was entitled to foreclose his mortgages for whatever amount John Sneed owed him at the time of his death, less whatever amounts the Sneed children had paid on the said indebtedness. Mr. Goins claimed this balance to be $2,455.99. The fact that Mr. Goins had taken possession of some of the mortgaged chattels under a receivership did not operate in any way to prevent him from foreclosing his mortgages. The correct amount for which he was entitled to foreclose will be discussed in Topic III, infra. ,

II. The Sneed Gross Appeal. Appellees on their cross appeal say that they are entitled to judgment for $967.95 not allowed by the Trial Court; hut we find they are not entitled to any judgment because they took charge of the mortgaged chattels and used them for the purpose of assisting in liquidating the indebtedness of John Sneed to Mr. Goins, and they voluntarily allowed all such proceeds of the crops to he applied on the John Sneed indebtedness. As aforesaid, they were trying to free the land and the chattels of the mortgages when they voluntarily allowed the payments to be so applied. They cannot recover for amounts voluntarily paid. Northcross v. Miller, 184 Ark. 463, 43 S. W. 2d 734; Ritchie v. Bluff City Lbr. Co., 86 Ark. 175, 110 S. W. 591; Larrimer v. Murphy, 72 Ark. 552, 82 S. W. 168.

III. The Correct Amount Due Mr. Goins. Mr. Goins had given the defendants memoranda at various undated and unspecified times as to amounts due, but it seems that each one of these memoranda was for an amount greater than the amount now claimed by Mr. Goins. There is, however, the matter of correct credits to be allowed for an oat crop, and the correct amount to be allowed for some corn. The Chancellor found that Mr. Goins had not allowed the correct amount of credits for these items. We conclude that Mr. Goins had not allowed full credit for some items, so the amount claimed by Mr. Goins on his mortgages is reduced by the sum of $300.00. Mr. Goins was entitled to no personal judgment against any of the defendants.

CONCLUSION

The decree is reversed and the cause is remanded, with directions to enter a decree in favor of Mr. Goins for the sum of $2,155.99, with interest at 10 per cent from November 22,1955 until paid; for foreclosure of the two mortgages executed to him by John Sneed; and for all costs.

       It described the following property: “The West Half (W%) of the Northeast Quarter (NE%) of the Northwest Quarter (NW14) of Section Sixteen (16), Township Eight (8) South, Range Seven (7) West, containing 20 acres, more or less.
      “ALSO, 1 Farmall Tractor together with all attachments; 1 Chevrolet Pickup Truck, % Ton, 1948 Model, Motor No. AFCA-88424; 1 John Deere Wagon; all Farming Implements; one Grey Mule named Hank; one Dark Bay Horse, named Spotlight; all crops raised or caused to be raised by grantor.”

       It described the following personal property:
      “One Model G John Deere Farm Tractor Serial No. 35632
      One Set 4-row John Deere Cultivators
      One Set 3-row Busters
      1 cream colored Milk Cow wt. 300 lbs. — 6 years old
      1 Red Milk Cow wt. 300 lbs. — 5 years old
      1 Red White Face Bull — 5 weeks old 1 Black Bull — 2 years old And all increase from cows
      And also all of our crops . . . raised during the year 1953.”

       Mr. Goins’ figures show that at the time of the death of John Sneed the total amount owed by him to Mr. Goins was $6,626.03; that Mr. Goins advanced $1,462.73 to complete the 1953 crop; that the total proceeds from the 1953 crop were $3,408.64; that when the $1,462.73 was first taken out of the proceeds there was left a balance of $1,945.91 to apply on the John Sneed indebtedness; that this reduced the balance of the indebtedness due by John Sneed and secured by the mortgages to $4,680.12; and that the amounts paid by the Sneed children from 1954 and 1955 crops reduced the balance to $2,455.99. The correctness of Mr. Goins’ figures was disputed in some instances, but on only a few items.

         The non-claim statute has now been shortened to six months (see ,§ 62-2602 Ark. Stats).

       The case is not reported in full in the Arkansas Reports.

       The Chancellor’s opinion said, “. . . a surplus credit due L. G. Sneed of $2,733.75”; but, by reason of the appellees’ claim of yearly credits, they sought only $967.95 on the cross appeal.


author: Minor W. Millwee, Associate Justice.

text:
    Butkiewicz v. Williams, Chancellor.
    5-1648
    317 S. W. 2d 15
    Opinion delivered October 27, 1958.

      G. Thomas Eisele, Owens, McHaney, Lofton S McHaney, for petitioners.

      Wm. H. Boioen and Mehaffy, Smith <& Williams, for respondent.
   Minor W. Millwee, Associate Justice.

This is an application for a writ of prohibition to restrain the judge of the Second Division of the Pulaski Chancery Court from proceeding further in a suit brought against petitioners by the administratrix of the estate of Beuben W. Bredlow, deceased, and to require said chancellor to transfer the cause to the Pulaski Circuit Court. Petitioners assert that the proceeding pending below is a tort action for the recovery and conversion of personal property, which is not cognizable in equity; that the chancellor had overruled petitioners’ request for transfer to circuit court and, unless prohibited, would proceed with the trial of the case over which the court had no jurisdiction of the subject matter; and that the remedy by appeal is inadequate.

According to the pleadings filed below a herd of cattle owned by Beuben W. Bredlow at the time of his death intestate in November, 1956, was in possession of the petitioners, Edward J. Butkiewicz and Annette Butkiewicz, the latter being a daughter of decedent’s sister. Pursuant to an order of probate court, Bredlow’s widow, as administratrix, first brought an action against petitioners in circuit court for recovery of the cattle together with the increase or the proceeds received by petitioners from the sale or conversion of any of said cattle. After the issues were joined in that action, the administratrix took a non-suit and filed suit in chancery court. The amended complaint in that suit contains the following allegations and prayer for relief.

“2. That at the time of purchase of the said herd of cattle as aforesaid, the cattle were situated on a 160 acre tract of land located at the north end of the Bred-low Farm, which 160 acres had been given in 1953 by the decedent to his mother (Gertrude Bredlow) and sister (Mrs. Lyde Campbell, mother of defendant, Annette Butkiewicz), for and during their lives, with remainder to the bodily heirs of his sister. The decedent’s sister died in about April, 1955, so that as of the date of purchase of the cattle as aforesaid, the 160 acre plot belonged to decedent’s mother for her life with the remainder interest being vested in the defendant, Annette Butkiewicz and her sister, Phyllis Grant.

“3. That the decedent left the cattle on the said 160 acre plot in the custody of the defendants, that the herd experienced normal growth subsequent to purchase as aforesaid, that defendants, plaintiff is informed and believes, have butchered and/or sold during the intervening years some of the cattle for their own use, that some of the cattle died, that in early January, 1958, the balance remaining of the herd was sold, and that at no time have the defendants made or offered to make an accounting to plaintiff for their actions as custodians of the cattle as aforesaid, but to the contrary, the defendants, in pure violation of their fiduciary relationship and responsibility, have refused and continued to refuse to account to plaintiff for the cattle or the proceeds thereof.

“4. That subsequent to the purchase of the cattle as aforesaid, the decedent furnished money, and/or supplies for the maintenance and upkeep of the cattle, that the defendants, plaintiff is informed, represent that they furnished money, labor and/or supplies for such purposes, that the accounting for such mutual contributions extends over a period of approximately thirty (30) months, that the accounting therefor as well as for the cattle which were sold, butchered for defendants personal use, or which died, together with the increase of the herd, is highly complicated, that defendants have violated their fiduciary relationship as custodians of the cattle, that the knowledge of the facts, events and costs with respect to custodianship of the cattle as aforesaid is more particular within the knowledge of the defendants, and that plaintiff has no adequate remedy at law and, further, that this action is brought in equity for the purpose of securing an. equitable accounting between the parties.

“Wherefore, plaintiff respectfully prays that an account be taken of the amount due the estate of R. W. Bredlow for the herd of cattle purchased by the decedent on or about October 1, 1955 and placed in defendants’ custody, for the increase in the herd, for the value of the cattle committed to the defendants own use and/or sold by defendants, for the money, labor and/or supplies furnished by the decedent and by defendants, if any, for the maintenance of the said cattle as aforesaid, for plaintiff’s costs and for such other relief as is meet and proper in the circumstances. ’ ’

After the chancellor entered an order denying a demurrer and motion to transfer to circuit court filed by petitioners, as defendants below, they filed the instant application, for writ of prohibition.

Petitioners earnestly contend that the amended complaint filed by the administratrix states an action at law for the conversion and/or recovery of personal property, which is not within the jurisdiction of the chancery court and is triable as a matter of constitutional right before a jury. It is argued that when the amended complaint is considered in the light of all the proceedings below it clearly constitutes an action at law, “and that the equitable jargon contained therein is sham and artifice intended only to deprive petitioners of a trial in the proper forum and by a jury.” In determining the validity of this argument, we agree that the difficult question is that of the propriety of the remedy by prohibition in view of the recitals of the amended complaint. We have repeatedly held that the writ of prohibition lies where an inferior court is proceeding in a manner beyond its jurisdiction and the remedy by appeal is inadequate, but it may not be used as a substitute for an adequate remedy by appeal. Except in circumstances which are not present here, it is also well settled that the remedy for a refusal to transfer an action to or from a court of equity is by appeal and not by prohibition. Weaver v. Leatherman, 66 Ark. 211, 49 S. W. 977; Dunbar v. Bourland, 88 Ark. 153, 114 S. W. 467; Bassett v. Bourland, 175 Ark. 271, 299 S. W. 13; Richards v. Maner, Judge, 219 Ark. 112, 240 S. W. 2d 6; St. Paul-Mercury Indemnity Company v. Taylor, 229 Ark. 187, 313 S. W. 2d 799.

The following statement by the court in Bassett v. Bourland, supra, has been approved in several later cases: 11 The writ is never issued to prohibit an inferior court from erroneously exercising its jurisdiction, but only where the inferior tribunal is wholly without jurisdiction, or is proposing or threatening to act in excess of its jurisdiction. To illustrate: The circuit judge certainly had jurisdiction to pass upon the motion to transfer to equity the case pending in its court. If it erroneously transferred the case to equity, prohibition is not the remedy. It can be corrected only on appeal.” Petitioners say this holding constitutes an erroneous and untenable legal theory which we should reexamine in the light of cases like District No. 21 United Mine Workers of America v. Bourland, 169 Ark. 796, 277 S. W. 546, where a writ was granted to prohibit a court of equity from taking jurisdiction of an action in tort for unliquidated damages. In that case the court said: “The office of the writ of prohibition is to restrain an inferior tribunal from proceeding in a matter not within its jurisdiction; but it is never granted unless the inferior tribunal has clearly exceeded its authority and the party applying for it has no other protection against the wrong that shall be done by such usurpation. Russell v. Jacoway, 33 Ark. 191; and Monette Road Imp. Dist. v. Dudley, 144 Ark. 169, and cases cited.” The court also approved the following rule from Pomeroy’s Equity Jurisprudence, 3rd ed., Sec. 178: “Where the primary right of- the plaintiff is purely legal, arising either from the non-performance of a contract or from a tort, and the money is sought to be recovered as a debt or as damages, and the right of action is not dependent upon or connected with any equitable feature or incident, such as fraud, mistake, accident, trust, accounting, or contribution, and the like, full and certain remedies are afforded by actions at law, and equity has no jurisdiction; these are cases especially within the sole cognizance of the law.”

At this stage of the proceedings we are unwilling to say that the allegations of the amended complaint present a purely legal action for conversion unrelated to such equitable features as trust and accounting and that it states no ground for the intervention of equity. We decline to overrule the doctrine of Bassett v. Bourland, supra. Under the recitals of the amended complaint the chancery court had jurisdiction to pass on the motion to transfer to circuit court. If it acted erroneously the error may be corrected on appeal, and prohibition is not the remedy.

The writ is denied.


text:
    Broyles v. Summers.
    5-1641
    317 S. W. 2d 14
    Opinion delivered October 27, 1958.

      John L. Sullivan, for appellant.

      Talley & Owen, by Ancil M. Reed, for appellee.
   George Rose Smith, J.

This is the second appeal in this case. In 1954 two of the appellants, Pañi E. Broyles and his wife, agreed to sell a house and lot to the appellees, W. J. Summers and his wife. In 1955 the purchasers brought this suit for specific performance of the contract. On March 19, 1956, the chancellor entered a decree for the plaintiffs and directed that the sellers convey the property to the purchasers upon the payment of the balance of the purchase price, which was found to be $2,462.25. Upon an appeal by the sellers that decree was affirmed on November 5, 1956. Broyles v. Summers, 226 Ark. 878, 294 S. W. 2d 766.

Later on a dispute arose as to whether the purchasers were entitled to a credit upon the purchase price in the amount of the rents collected by the sellers after the date of the original decree. The appellees filed a motion in the trial court, asking that they be given credit for these rents and that the sellers be required to execute a deed upon the payment of the original balance less the amount of the rents. In response to this motion the sellers contended, as they do upon this appeal, that our affirmance of the 1956 decree settled every issue in the case and precluded the purchasers from seeking a credit for rents collected after the entry of that decree.

A hearing was had in the chancery court upon the issues raised by the supplemental pleadings. It was shown by undisputed testimony that, in connection with the first appeal, the parties had agreed, through the attorneys then representing them, that the sellers would not be required to execute a supersedeas bond and that, in lieu of such a bond, the rents received by the sellers after the date of the decree would be applied upon the purchase price if the chancellor’s decision should be affirmed. By the decree now under review the chancellor simply enforced the parties’ agreement and made a finding, which we think to be supported by the evidence, that the purchasers are entitled to a credit of $660, representing rents collected by the sellers between the date of the original decree and the date of the supplemental decree.

The chancellor’s decision was correct. It is doubtless true that in many cases, perhaps in most cases, onr affirmance of a judgment or decree ends the litigation except for the matter of enforcing the trial court’s order. But this is not invariably true. Not infrequently justice requires that further proceedings be had with reference to rights arising after the entry of the trial court’s original judgment. For example, in Montgomery v. Black, 75 Ark. 184, 86 S. W. 1006, we affirmed a chancery decree setting aside an administrator’s sale and remanded the cause with directions that the land be judicially sold and the proceeds distributed. Upon remand the trial court required the administrator to account for rents collected by him after the date of the first decree. On a second appeal, Robinson v. Black, 84 Ark. 92, 104 S. W. 554, we held that, although the cause had been remanded for “the sole purpose” of having the land sold, it was proper for the trial court to ascertain the amount of rents collected by the administrator after the date of the original decree. That issue had not arisen when the sale was set aside in the first instance and was not adjudicated by the affirmance of the initial decree.

The appellants’ position in the case at bar cannot be upheld. If, in taking the first appeal, they had executed a supersedeas bond for the purpose of maintaining the status quo and thereby enabling themselves to continue to collect the rents, the affirmance of the decree would not have been res judicata in a proceeding upon the bond for the recovery of rents collected after the date of the superseded decree. Dover v. Henderson, 197 Ark. 971, 125 S. W. 2d 798. Instead of making the bond, the appellants were permitted to continue to collect the rents on the faith of their agreement that the appellees would receive credit upon the purchase price if the decree were affirmed. The appellants cannot invoke the doctrine of res judicata as a basis for repudiating their promise.

Affirmed.