author: J. Fred Jones, Justice.

text:
    Leslie David HILL v. STATE of Arkansas
    5512
    458 S. W. 2d 45
    Opinion delivered September 28, 1970

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

      Joe Purcell, Attorney General; Melton Lueker, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Leslie David Hill shot and killed Willie Young and was convicted of first degree murder in the Craighead County Circuit Court. His defense was based upon insanity and upon conviction he was sentenced to the Arkansas penitentiary for life. On appeal to this court, Hill relies on the following points for reversal:

“The Court erred in excluding appellant’s offer of proof of opinion testimony from lay witnesses on the issue of appellant’s sanity.
The Court erred in giving Court’s Instruction Number 9A.”

We are of the opinion that the trial court erred on both points, and that this case must be reversed and remanded for a new trial.

Ark.. Stat. Ann. § 41-2205 (Repl. 1964) defines murder in the first degree as follows:

“All murder which shall be perpetrated by means of poison, or by lying in wait, or by any other kind of wilful, deliberate, malicious and premeditated killing, or which shall be committed in the perpetration of or in the attempt to perpetrate, arson, rape, robbery, burglary or larceny, shall be deemed murder in the first degree.”

The information under which Hill was tried, charged that he,

“. . . did on the 34th day of November, 1968, in the Jonesboro District of Craighead County, Arkansas, unlawfully, feloniously, willfully, knowingly and with malice aforethought and after deliberation and pre-meditation, assault, kill and murder one Willie Young by then and there unlawfully, feloniously, willfully, deliberately, knowingly and maliciously shooting him, the said Willie Young, with a deadly weapon, namely a pistol, then and there had and held in the hands of the said LESLIE DAVID HILL, with the felonious intent then and there to kill and murder, against the peace and dignity of the State of Arkansas.”

The facts surrounding the actual homicide will not be set out in detail, but the appellant Hill and the decedent Young, together with several other individuals, were engaged in a dice game in the kitchen of a private home belonging to A. V. “Pete” Vann. An argument arose between appellant Hill, who had placed a bet, and decedent Young, who was “running the game,” as to whether a third individual had made a certain point in rolling the dice. After some argument, Young offered to give the money to Hill but instead of taking the money Hill shot Young several times with a pistol. The evidence indicates that Hill then took another pistol, either from his own pocket or from Young’s pocket, and after starting to leave the room, returned and fired several more shots from that pistol into Young’s body remarking as he did so that he might as well do a good job of it.

The evidence in behalf of Hill shows that he served two years in the army from 1943 to 1945 and was drawing total disability veterans benefits under a diagnosis of schizophrenia, for which condition he was apparently discharged from the army. He was judicially declared incompetent in 1947 and has remained under guardianship since that time. The record discloses that on May 12, 1947, the appellant was examined by the veteran’s administration medical staff and diagnosed as “Dementia Praecox, with complete industrial incapacity.” One month later, on June 25, 1947, his veteran’s administration record shows a medical diagnosis as follows: “Dementia Praecox (paranoid tendencies shown on current exam).”

The appellant’s first point has to do with the testimony of witnesses Alex Turnage, A. V. “Pete” Vann, Lonnie Cooper and Bert Jamison. In support of his first point the appellant relies heavily on our opinion in Shaeffer v. State, 61 Ark. 241, 32 S. W. 679. In Shaeffer we said:

“When a person’s mental condition or capacity is in question, the opinions of witnesses, who are not experts, as to such capacity are only admissible in evidence, when taken in connection with the facts upon which such opinions are based. Before such evidence can be admissible, ‘the specific facts upon which the opinions are based must first be stated by the witnesses, or their testimony must show that such intimate and close relations have existed between the party alleged to be insane and themselves as fairly to lead to the conclusion that their opinions will be justified by their opportunities for observing the party.’ In other words, the opinion of such a witness is not admissible in evidence until it be first shown by his own testimony that he has information upon which it can reasonably be based. Whether the information is sufficient for that purpose is a question for the court to decide before it can be admitted. After its admission, the weight to be given is determined by the jury.”

Turnage testified that he had known Hill for 25 or 30 years; that at one time they roomed together, and that throughout their acquaintance they had visited in each others homes. He testified that Hill

“. . . was kind of a quick tempered fellow. He would fly off the handle most any little thing he got any argument over or anything being brought up. He was pretty strange. He did a lot of things —if you would go along with his program, everything was fine, but if you didn’t he would suddenly turn on you. I know a lot of cases where I would come in the house — I used to visit him at his own house and he would be leading a dog and the dog wasn’t there. Then he would whistle 'Come on, Sport,’ and the dog was not there. * * * He would say 'Don’t pay me no ’tention. You don’t see that little old dog?’ I said ‘No.’ He would tell me about things, about hearing voices— * * * Oftentimes we would be together and he said ‘Say, didn’t you hear that voice say that,’ and often talk about the little green man. I didn’t know what he was talking about. That was eight or. nine years ago. He would talk with — commute with — talk with them. * * * The little green man would tell him ever so often he had to kill somebody. I wouldn’t go into details what he said. That is kind of embarrassing. * * * If we would hold a conversation about ten or fifteen minutes he would either start talking about he had to kill somebody or somebody talking to him, talk rumbling through his head. * * * [W]e would be watching a ball game when things was not funny, he would commence laughing; watching a t.v. program. I would just get up a lot of time and cut away from him because I couldn’t comprehend what he was interested in, so forth. * * * The day he shot Willie Young, he had kind of a smirky smile on his face.”

This witness was then asked the following questions and made the following answers:

“Q. Alex, based upon your association with Leslie over the years, your observation of his conduct, his manner and his demeanor, do you have an opinion with reference to whether Leslie was sane or insane on the day of this killing?
A. Well, I always did myself think that he was crazy.
Q. You always did think he was crazy?
A. Yes, sir.
Q. And you thought he was crazy on that day, is that right?
A. Yes, sir.
Q. Alex, based upon your observation of this boy over the years, what you saw him do, what you heard him say, that sort of thing, do you think he knew the difference between right and wrong on the day he killed Willie Young?”

The state objected to this question and the trial court ruled as follows:

“The Court is going to sustain State’s objection to this lay witness answering questions whether or not the defendant knew the difference between right and wrong on the date of the alleged offense.”

Hill then made his offer of proof as follows:

“Q. Alex, based upon your observation of Leslie, your association with him, your contacts with him over the years, do you believe Leslie knew the difference between right and wrong on the day he killed Willie Young?
A. No, I don’t.
Q. You don’t believe he knew the difference between right and wrong on the day he killed Willie Young?
A. No, sir, I don’t.
Q. Basing your answer again on your association with Leslie, observation of him over the years, numerous contacts you had with him, tell the Court whether in your opinion Leslie Hill had the ability to resist doing wrong?
A. I don’t think Leslie Hill at any time could resist doing wrong because he would go into spasms, fits, so forth. If a person really didn’t observe and know him, be around him, he wouldn’t really know him. He was a misleading fellow. You just had to know his actions, the way he did things.”

We are of the opinion that sufficient foundation was laid in the testimony of lay witness Alex Turnage to permit him to express an opinion as to whether Hill knew the difference between right and wrong on the date of the alleged offense.

We are of the opinion, however, that the court properly excluded the opinions of all the lay witnesses as to Hill’s ability to resist doing wrong. The appellant has dted no case, and we have found none, where lay witnesses are permitted to express an opinion as to another individual’s ability to resist doing wrong without some knowledge of the nature and strength of the opposing force against which his resistance is directed.

A. V. “Pete” Vann testified that he had known Hill 15 or 20 years and they associated together frequently. He testified that on one occasion Hill told him that there were some “guys” around the house the night before “said they were going to get him; going to kill him.”

“Q. I wish you would state whether or not Leslie ever made a statement to you or in your presence with reference to hearing voices?
A. Well, no more than he tell me he would hear people around the house there, going to get him.”

This witness testified that he had seen Hill grin and that on one occasion in Marked Tree he grinned and asked the witness if he had his gun, because a group of men were picking on him. He testified that he saw Hill threaten Turnage with a gun on the day he killed Young. On the basis of this testimony, the following question was asked:

“Q. Now, Pete, based upon your association with Leslie over the years, your observation of his manner and demeanor, and his conduct, do you have an opinion with reference to whether Leslie was crazy or not on the day that he killed Willie Young down there?”

The state’s objection to the question was sustained, and we agree with the trial court that there was not sufficient foundation laid in A. V. “Pete” Vann’s testimony on which he could form an evidentiary opinion as to whether Hill was “crazy or not” on the day he killed Willie Young.

Lonnie Cooper testified that he was former sheriff and jailer of Craighead County and had known Hill since about 1950. He arrested Hill and had him in jail on several occasions. He testified that Hill told him that someone was after him; that nobody liked him and that he heard voices talking to him. As to this witness, the record is as follows:

“Q. Lonnie, could you estimate how many times you have been in contact with this boy?
A. I would say several.
Q. Would it be as many as twenty?
A. Well, I would say ten or twelve, personally, I talked to him.
Q. Lonnie, do you have an opinion based on your association with Leslie, your observation of his manner and demeanor, with reference to whether he was sane or insane on those occasions?
MR. PEARSON: If the Court please, with all respect to Mr. Cooper and his ability, I do feel I would have to object to this non-expert lay witness express his opinion as to sanity or insanity of the defendant based on the facts put in this record. I don’t think he had sufficient opportunity to observe and associate with this defendant to express a reasonable opinion on sanity or insanity. I object to the lay opinion.”

The state’s objection was sustained and Hill then made his offer of proof as follows:

“Q. I believe at the time the Court sustained the objection, and now that the jury has retired and we are outside the presence of the jury, I believe at that time while the jury was still here, I asked you the question whether you had an opinion with reference to whether Leslie Hill was sane or insane on the occasions when you contacted him. Do you have such an opinion, sir?
A. Could I answer it this way? We have talked about it among ourselves — the officers — to put it in plain English, we always thought he was crazy.
Q. Well, that is not responsive to my question. I think it covers it generally, but after having made that statement, if I understand you correctly, you were of the personal opinion during these periods you were contacting him he was crazy?
A- That’s right.”

We are of the opinion that the official capacity in which former Sheriff Cooper dealt with Hill added some quality to his observations over that of relatives and friends, and that former Sheriff Cooper was qualified to give his opinion in evidence as to Hill’s sanity on the ten or twelve occasions he talked to him.

We ágree with the trial court that there was not sufficient foundation laid in Bert Jamison’s testimony for his lay opinion to be accepted in evidence as to Hill’s sanity.

We now turn to the facts surrounding appellant’s second point. Instruction No. 9A, of which appellant complains, is as follows:

“The fact that one’s reason is temporarily dethroned by anger, jealousy, or any other passion, or the fact that one has become suddenly depraved to such an extent that his conscience ceases to control or influence his action is not a defense to a criminal charge. In other words, what is commonly known as emotional or moral insanity, is not a defense under the law of this state for one charged with crime.” (Emphasis supplied).

As pointed out by the state, this instruction was apparently lifted verbatim from our decision in Watson v. State, 177 Ark. 708, 7 S. W. 2d 980, but the fallacy lies in the fact that in Watson, the trial court did not give a separate instruction on emotional or moral insanity, and the objection in that case went to the alleged failure to include the definition of “emotional or moral insanity” in the entire instruction that was given. We simply held in Watson that “emotional or moral insanity” was properly defined in the instruction that was given. In Watson we only approved the definition as included in the instruction that was given, and we did not approve the definition as a separate instruction. The entire instruction in the Watson case is not set out in the opinion, but on the point raised in that case we said:

“The instructions on the issue of insanity followed closely the law applicable to such issue as declared by this court in Bell v. State, supra. It could serve no useful purpose to reiterate the law announced in that case and in Hankins v. State, supra. The appellant objected generally to the instruction given by the court, and specifically to that part of the instruction relating to emotional and moral insanity. The appellant contends that there was no definition of emotional or moral insanity. But on examination of the instruction we find that the court in the instruction told the jury that ‘the fact that one’s reason is temporarily dethroned by anger, jealousy or any other passion, or the fact that he has become suddenly depraved to such an extent that his conscience ceases to control or influence his actions, is not a defense to criminal charge. In other words, what is commonly known as emotional or moral insanity is not a defense under the law of this State for one charged with crime.’ The instruction on the proposition of emotional and moral insanity thus conformed to the law as declared by the court in Bell v. State, supra, and was a sufficiently explicit definition of emotional and moral insanity.”

Turning to Bell v. State, 120 Ark. 530, 180 S. W. 186, referred to in Watson, we find the following:

“The law on the issue of insanity may be briefly stated as follows: The law presumes that every man is sane and that he intends the natural consequences of his act. Therefore, where one is charged with murder in the first degree, and it is admitted that if sane he is guilty as charged, and the plea of insanity is interposed as his defense, in such cases the burden is upon the accused to establish his insanity by a preponderance of the evidence. * * * Where one is on trial for murder in the first degree and the State proves the killing under circumstances that would constitute murder in the first degree if the homicide was committed by a sane person, then if the killing is admitted and insanity is interposed as a defense such defense can not avail unless it appears from a preponderance of the evidence, first, that at the time of the killing the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act as he was doing; or, second, if he did know it, that he did not know that he was doing what was wrong; or, third, if he knew the nature and quality of the act, and knew that it was wrong, that he was under such duress of mental disease as to be incapable of choosing between right and wrong as to the act done, and unable, because of the disease, to resist the doing of the wrong act which was the result solely of his mental disease.
* * * xhe first of the tests is applicable in every case where the evidence tends to show general insanity or dementia. The second and third of these tests are applicable in every case where the evidence tends to prove, as it does here, that the accused, at the time of the alleged criminal act, was afflicted with that disease of the mind termed by medical experts, alienists and authors on medical jurisprudence as paranoia, which has progressed to the ‘stage ot persecution.’
# * *
But it must be remembered that one who is otherwise sane will not be excused from a crime he has committed while his reason is temporarily dethroned not by disease, but by anger, jealousy, or other passion; nor will he be excused because he has become so morally depraved ‘that his conscience ceases to control or influence his actions.’ In other words, neither so called ‘emotional’ nor ‘moral’ insanity will justify or excuse a crime. Bolling v. State, supra. It was the province of the court to make concrete application of these tests or rules to the facts adduced in evidence, and, guided by them, it was the province of the jury to determine whether or not the appellant was responsible for the crime charged.”

Another statement in Bell which might be applied to the case at bar is as follows:

. . Instead of the numerous instructions that were given, it would have been far better if the court, after announcing the law as to the burden of proof and declaring the above tests, had instructed the jury that if they believed from the preponder-: anee of the evidence that the appellant was insance they should acquit him, otherwise they should convict him of the crime charged. If counsel had succinctly presented their respective contentions in a few plain prayers embodying the above tests, doubtless the errors that crept into the court’s charge would have been avoided.”

Instruction 9A in the case at bar has a similar defect as did an instruction complained of in Hankins v. State, 133 Ark. 38, 201 S. W. 832. In that case we said:

“Among other instructions the court gave the following: ‘The court instructs the jury that even though you should believe from the evidence that the defendant was suffering from a delusion that his wife was too friendly with other men, and that defendant acted upon this delusion when he fired the fatal shot, yet this delusion would not justify the defendant in taking the life of his wife, nor excuse him from criminal responsibility.’
The appellant objected specifically to the giving of the above instruction, and requested the court to modify the same by adding the following: ‘Unless you further find from a preponderance of the evidence that the defendant at the time of the act was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing, or, if he did know it, that he did not know he was doing what was wrong; or if he knew the nature and quality of the act and knew that it was wrong, that he was under such duress of mental disease as to be unable because of the disease to resist the doing of the wrong act, which was the result solely of his mental disease.’ ”

In holding that the trial court erred in not modifying the instruction, this court said:

“It follows that the court erred in not modifying the twenty-fourth prayer for instruction, granted at the instance of the State, in accordance with the request of counsel for the appellant. The instruction when thus modified would have made the charge complete and harmonious, and in conformity with the law as announced by us in Bell v. State, supra.”

Under the instruction 9A given by the trial court, the jury was told: “. . . the fact that one has been suddenly depraved to such an extent that his conscience ceases to control or influence his action is not a .defense to a criminal charge. . .” This instruction eliminated from the jury’s consideration one important element— the cause of such sudden depravity. In Korsak v. State, 202 Ark. 921, 154 S. W. 2d 348, we made it clear that such depravity, sudden or otherwise, may be a defense in a criminal case if it is caused by a disease of the mind, but not otherwise. In Korsak we said:

“. . . If a man’s mind becomes so diseased that he is insane (as that term is defined in numerous cases, such, for instance, as Bell v. State, 120 Ark. 530, 180 S. W. 186; Hankins v. State, 133 Ark. 38, 201 S. W. 832, L. R. A. 1918D, 784; Watson v. State, 177 Ark. 708, 7 S. W. 2d 980, 59 A. L. R. 356), even though the diseased condition of the mind resulted from private vices, he is excused. But, if his mind becomes disordered, so that he loses control of himself, through passion, suddenly or violently aroused, whether that passion be of an amorous nature or the result of hate, prejudice or a desire for revenge, he is not an insane person within the meaning of the law. For instance, a man might have a provocation, apparently sufficient to make the passion irresistible, and, under the influence of this passion, kill another. But he is not excused on that account. He would under § 2981, Pope’s Digest, be guilty of voluntary manslaughter. A man might voluntarily drink intoxicants, or voluntarily take drugs, until, while, under the influence of the intoxicant or the drug, he becomes irresponsible and unaware of his conduct. Yet, he is not excused from the effect of his conduct under those conditions.
* * #
. . . He may be excused as an insane person only when his mind has become diseased and, because of this disease, he has lost the power to distinguish between right and wrong or, as the court told the jury in the instruction above copied, he is incapable, because of the diseased condition of his mind, of choosing between the right and the wrong.
But if one’s conduct was not induced by this mental condition, but from the excitation of the lower passions, whether of hate, prejudice, desire for revenge, or lascivious desire, he is responsible for his act. Frenzy is not insanity.”

Likewise, under instruction 9A in the case at bar, if a person should become suddenly depraved to such an extent that his conscience ceases to control or influence his action, he would still be criminally responsible for his depraved acts even if his conscience should become suddenly obliterated by malignant tumor or other disease with sudden manifestations.

The judgment is reversed and this cause remanded for a new trial.

Fogleman, J., not participating.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    TEXTRON, INC. v. Billy Ray WHITENER
    5-5312
    458 S. W. 2d 367
    Opinion delivered September 28, 1970
    [Rehearing denied November 2, 1970.]

      Murphy, Arnold &r Blair, for appellant.

      Darrell Hickman, for appellee.
   Frank Holt, Justice.

This is an action to recover $12,969.52 which is the balance due on a promissory note executed by appellee to appellant as part of a poultry financing arrangement. The trial court, sitting as a jury, found the transaction usurious. The evidence disclosed that after some verbal negotiations, the parties entered into a written contract whereby appellant was to finance the purchase of 10,800 pullets by appellee. Pursuant to one of the terms of the written contract, appellee executed a note to appellant on October 20, 1966, for $16,740.00, the purchase price of the pullets, plus a 4% service charge equaling $669.60. The total amount of $17,409.60 was, according to the face of the form note, due “on demand, but in no event later than _” In the blank space, appellant had inserted “December 20, 1966.”

By way of defense, appellee asserted that the promissory note sued upon was usurious. On this issue appel-lee, the party asserting usury, had the burden of proof. Nineteen Corporation v. Guarantee Financial Corp., 246 Ark. 393, 438 S. W. 2d 685 (1969); Wallace v. Hamilton, 238 Ark. 406, 382 S. W. 2d 363 (1964). Here, however, the note itself constituted a prima facie case for appel-lee since it was usurious on its face — i. e., the price of the pullets plus a 4% service charge was due upon demand and no later than two months after the execution of the note; this would render a per annum service charge of 24% which is clearly in excess of the 10% maximum allowed by law. See Andrews v. Martin, 245 Ark. 1010, 436 S. W. 2d 285 (1969); Peoples Loan & Inv. Co. v. Booth, 245 Ark. 146, 431 S. W. 2d 472 (1968). Furthermore, in addition to the 4% “service charge” inserted in the note, this standard form provided that the maker agrees that: “Interest at the highest rate permissible by law shall be paid hereon after maturity or default, until paid.” Also, appellee testified that he considered and understood the note as being his “total” and “legal” obligation.

Appellant introduced parol evidence to the effect that the parties had verbally agreed to spread the payment of the note over an eight-month period, thus bringing the 4% service charge within the legal limit for interest charges. Appellant also directed the trial court’s attention to one of the printed conditions on the reverse side of the written contract which provided for payment in eight monthly installments. The face of the contract was also shown to state, as part of the agreement between the parties, that: “Upon payment of said note(s), Beacon [a division of appellant] will refund to Feeder a sum equal to that portion of the service charge, if any, included in the amount thereof which, due to time of payment, would be in excess of that permitted by law.” Similarly, in bolder faced type, the contract contained several notices to the buyer, one of which stated: “Under the law you have a right to pay off in advance the full amount due, and under certain circumstances to obtain a partial refund of the time (service) charge.”

At the conclusion of all the evidence, the trial court requested that appellant submit a brief as to the propriety of considering the “side agreements,” which were admitted into evidence, in the determination of this case. Appellant and appellee both submitted briefs on the issues and applicable law. Appellant also submitted a reply brief. After a consideration of these memoranda, the trial court found the promissory note to be usurious, dismissed appellant’s complaint and entered judgment for appellee. This appeal follows.

Appellant’s first contention for reversal is: “The trial court erred in not considering parol evidence concerning the entire agreement of the parties.” It is clearly the law that in determining the issue of usury, all attendant circumstances germane to the transaction in question should be considered. Guaranty Financial Corp. v. Harden, 242 Ark. 779, 416 S. W. 2d 287 (1967); Sammons-Pennington Co. v. Norton, 241 Ark. 341, 408 S. W. 2d 487 (1966). In the case at bar, the trial court admitted, over objection by appellee, parol evidence by appellant relative to the attendant circumstances of the note and the accompanying written contract. We cannot say that the trial court ignored that evidence simply because he ultimately found in his memorandum opinion that the promissory note sued upon was usurious. The face of the note, of course, substantiates the assertion of usury. Since this is a law case, we must affirm the lower court’s finding if there is any substantial evidence to support it. American Metal Window Co. v. Watson, 238 Ark. 418, 382 S. W. 2d 576 (1964); Cox v. Darragh Co., 227 Ark. 399, 299 S. W. 2d 193 (1957).

Appellant argues three more points for reversal; they may be summarized and discussed together. Basically it is appellant’s contention that the contract, which preceded the promissory note, precluded an excessive interest charge; that the interest charge as intended by the agreement between the parties was, in fact, below the lawful maximum; and, finally, that there was no intent to exact usurious interest. As previously stated, a determination of usury should be made only upon an examination of all relevant attendant circumstances. Similarly, the Uniform Commercial Code [Ark. Stat. Ann. § 85-3-119 (Repl. 1961)] establishes that: “As between the obligor and his immediate obligee * * * the terms óf an instrument may be modified or affected by any other written agreement executed as a part of the same transaction.” Applying these considerations to the present transaction, we observe that the reverse side of the written contract provided for payment of negotiable promissory notes on the basis of eight monthly payments. However, this provision was prefaced by the words: “In cases where this contract covers feed for pullets * * Here the contract is for the financing of the purchase of pullets. The face of the contract also contained an agreement for the refunding of excessive interest charges “due to the time of payment” and a notice to the buyer of his right to a partial refund of interest charges “under certain circumstances.” Such provisions could have realistically been construed as tantamount to a disclaimer of intent to charge usurious interest rates which, as we have had occasion to note, is ineffective to remove the taint of usury from an instrument usurious on its face. See Commercial Credit Plan, Inc. v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009 (1951); Dupree v. Virgil R. Coss Mortgage Co., 167 Ark. 18, 267 S. W. 586 (1924). Moreover, one of appellant’s officers testified that the standard promissory note form was designed specifically to assure appellant instant security in ,all of its transactions by making the note payable on demand, although he stated: “[W]e always collected less than the maximum [legal rate of interest].”

As a matter of law, we cannot say there is no substantial evidence to support the trial court finding that the transaction was usurious.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    William. R. SMITH v. Richard E. CUMMINS et al
    5-5279
    458 S. W. 2d 140
    Opinion delivered October 5, 1970

      Smith, Williams, Friday if Bowen; By: James W. Moore, for appellant.

      Guy H. Jones, Sr., Phil Stratton and Guy Jones, Jr., for appellees.
   Carleton Harris, Chief Justice.

Marcine Cummins and her husband Richard Cummins instituted suit against William R. Smith, appellant herein, as a result of an automobile accident between Mrs. Cummins and Smith which occurred in Conway on February 24, 1969. Mrs. Cummins sought damages for alleged personal injuries and. Mr. Cummins sued for damage to his automobile. Appellant counterclaimed for the damage to his automobile alleging negligence on the part of Mrs. Cummins and asserting that she was acting as the agent and servant of her husband. Subsequently, relief was also sought against a third party defendant, Farm Bureau Mutual Insurance Company of Arkansas, it being asserted that Mrs. Cummins was employed by that company and was acting within the course and scope of her employment at the time of the automobile accident, which was occasioned by her negligence. After the Insurance Company answered denying pertinent allegations and after the filing of other amendments by the parties, the case proceeded to trial. At the conclusion of the evidence, the allegation that Mrs. Cummins was an agent and employee of her husband was withdrawn by counsel for appellant, who thereafter moved that the case be submitted on interrogatories. This motion was overruled; the court instructed the jury and six forms of possible verdict were submitted to the jury to cover whatever verdict might be reached. The first form was a finding for Marcine Cummins fixing her damages at $__ The second form was a finding for Smith on the complaint of Mrs. Cummins. The third form was a finding for Mr. Cummins against Smith fixing his property damage at $_ and allocating the negligence causing this damage as follows:

“William R. Smith %, Marcine Cummins, %, using. 100% as the total.”

The fourth form of verdict related to a finding for Smith against the third party defendant, Farm Bureau Mutual Insurance Company of Arkansas and Marcine Cummins, and assessing the amount of damages. Also included with this form was a verdict for the Farm Mutual Insurance Company of Arkansas against William R. Smith. The fifth form was a finding for Smith on his counterclaim against Mrs. Cummins, and fixing his damages at. $__ The final form of verdict was one in behalf of Smith against Richard Cummins. The jury was then told that if all twelve agreed on a verdict, it was only necessary for the foreman to sign, but nine could also agree upon a verdict, sign it, and return it into court and it would become the jury verdict.

After the jury had retired for one and one half hours, it returned to the courtroom, and the foreman stated that he had a question to propound to the court. The foreman stated:

MR. ZELLNER:

“We have a question as to whether we bring in one verdict from these papers; you have given us, or can we bring in more than one verdict. *****
Judge, what is confusing us that one of these pieces of paper is all we can use?”

The court replied that two forms of verdict could be used or that three forms could be used. However, these forms of verdict were not pointed out to the foreman. The jury retired to the jury room, and after approximately an hour, returned back into Open Court with a form of verdict. The court then stated:

THE COURT:

“Mr. Foreman, you have arrived at one form of verdict, but I am afraid they are not complete. By this verdict you have handed me you have settled the property damage involved in this lawsuit. I will ask you to go back and take all the verdicts and see what you can do further. *****
By the verdicts which you have returned to me you have settled the property damage involved — the property damage involved in this occurrence to some extent, but you have not settled the claim for damages of the other part of the law suit.
MR. ZELLNER:
In other words, we can still use two more verdicts?

THE COURT:

Right.”

After again retiring and be turning some twenty minutes later, the foreman advised that the jury was deadlocked. Upon being asked how the jury stood with reference to numbers, the foreman replied “No vote has the same numbers”. The court then advised that it had been handed two verdicts by the jury but that it could not “accept both of these verdicts — one or the other, but I can’t accept both”. It was further stated that it would be necessary for the jury to return a verdict either for the plaintiff or the defendant and if such a verdict could not be reached by at least nine jurors, then there was no verdict at all.

One of the jurors stated that the jury had been trying to decide how much to give to Mrs. Cummins, and he explained as follows:

MR. BAILEY:

“And somebody would suggest something and make a motion for so many dollars, and it would "be seconded and voted on, and one two or three of them would vote, and we started at thousands and got down to $100.00 and couldn’t get as many as four votes on nothing.”

Thereafter the court and the attorneys retired to chambers where the record reveals the following:

THE COURT:

“Let the record show the jury has been out a little better than three hours and the foreman said that they were deadlocked and positively not able to agree, and Mr. Bailey said they couldn’t get as many as four on any one proposition; and the Court asked the attorneys on all sides, and nobody agreed that the Court declare a mistrial, or hung jury, and the Court, on it’s own motion declared a mistrial in this cause.

MR. MOORE:

Let the record show counsel for the defendant reserves any rights he might have in the way — any rights he may have to object, and any rights to appeal from any order declaring a mistrial.”

All then returned to the courtroom where the foreman of the jury reiterated that the jury was deadlocked and several of the members of the jury agreed that such was the case, and that no more than four people could agree on any given point. The court then announced that, on its own motion, it was declaring a mistrial, and the jury was discharged from further consideration of the case.

Though the record of the trial concludes with this action by the court, and does not reveal what happened thereafter, appellant says that after the mistrial was declared, the parties were then allowed to see the two verdict forms, each of which had been signed by ten members of the jury. At any rate, the transcript reveals that the jury did make findings under two verdict forms, as follows:

“We, the jury, find for Richard Cummins and against William R. Smith and fix his damages as follows:

For property damage $ 0 the negligence causing which damages we allocate as follows:

William R. Smith 50%
Marcine Cummins 50%
Total 100%”

The other verdict returned was as follows:

“We, the jury, find for William R. Smith on his counterclaim against Marcine Cummins and fix his damages at $100.00.”

For reversal, appellant asserts that the trial court erred in declaring a mistrial in view of the fact that the jury had actually reached a verdict and was deadlocked on a superfluous issue.

Appellees, in arguing for an affirmance, rely, upon three points, and it appears that there may well be merit in these contentions; however, we see no need to discuss all of these points since it is very clear, as pointed out by appellee in Point Two, that no objection was made to the court’s action in declaring a mistrial. It is at once obvious that simply reserving “any rights he. may have to object”, is definitely not the same as making an objection, for the language used by counsel simply means that he might decide later to make an objection. To approve such procedure would have the effect of permitting one to withhold an objection until the jury verdict was in, and then, if the verdict were favorable, accept it, but if unfavorable, object to the action taken. This is not permissible. Reynolds v. Nutt 217 Ark. 543, 230 S. W. 2d 949.

Of course, it is at once apparent that provisions of Section 27-1762 and Section .27-2154 Ark. Stat. Ann. (Repl. 1962), setting out the requirements for proper objections, and the necessity to object, have not been complied with. It follows that appellant is not in a position to question the propriety or legality of the court’s action.

Affirmed.


author: George Rose Smith, Justice.

text:
    U. S. POLLINS et ux v. O. D. PETTUS et ux
    5-5320
    458 S. W. 2d 724
    Opinion delivered October 5, 1970
    [Rehearing denied November 9, 1970.]

      Eugene B. Hall, Jr., for appellants.

      Hugh Lookadoo and Jimmy L. Featherston, for appellees.
   George Rose Smith, Justice.

This suit was brought in 1969 by the appellees, O. D. Pettus and his wife, to quiet their title to a one-and-a-quarter-acre tract of land in Clark county. The tract is the site of a dwelling house, which was built by Henry O’Neal in 1945. During the 24 years between the construction of the house and the filing of this suit the property was under fence and was continuously occupied by the Pettuses and by their predecessors in title, the property having passed from the O’Neals down to the Pettuses in an unbroken chain of conveyances. Upon that proof the chancellor entered a decree quieting the Pettus title and canceling the appellants’ paper title to the tract.

For reversal the appellants rely upon an error by which all the deeds in the chain of title from the O’Neals down to the Pettuses described only the forty-acre tract (NEM SEM, § 33) that lies immediately west of the acre and a quarter in controversy. The little tract in controversy actually lies within, and alone the western border of, the forty-acre tract (NWM SWM, § 34) that is just east of the forty acres described in the O’Neal-Pettus chain of title. Despite the error, the successive owners of the western forty have occupied the house, have believed themselves to be the owners of the acre and a quarter now in controversy, and have meant to claim it to the exclusion of anyone else.

Moreover, when the appellants first purchased the eastern forty-acre tract in 1964, their deed expressly excepted the acre and a quarter now in issue. It was not until 1967 that the appellants discovered the exception in their deed and induced their grantor to execute a second deed describing the acre and a quarter. That grantor, however, testified that she had never claimed the house and would not have signed the second deed if she had known that it included the house.

The chancellor was right in upholding the Pet-tuses’ title. A situation substantially identical to this one was considered in St. Louis S. W. Ry. v. Mulkey, 100 Ark. 71, 139 S. W. 643, Ann. Cas. 1913C, 1939 (1911), where the prevailing party’s deed did not describe the strip in controversy. It was shown, however, that the party’s grantor had occupied the strip adversely, through tenants, for more than 20 years and intended to transfer it to his grantee along with the contiguous land described in the deed. We sustained the grantee’s title, saying: “It is next contended that appellee can not claim the benefit of the adverse possession of her grantors because their deeds to her do not include the land. While it is true that the land described in the deed to her does not include the strip in controversy, still her grantors, whose adverse possession had probably already ripened into title, intended it should, and thought it did, and at the time of the conveyance transferred to her the possession of it in fact, intending that she should have all the land within the inclosure. This was sufficient, even if it be conceded that there was no conveyance of it in writing, and constituted such privity as entitled her to avail herself of his or their adverse possession and to tack her possession to theirs if necessary to complete her title and claim of ownership.” That holding was followed in Howell v. Baskins, 213 Ark. 665, 212 S. W. 2d 363 (1948). There is no distinction in principle between those cases and this one.

Affirmed.


author: Lyle Brown, Justice.

text:
    GREENE COUNTY, ARKANSAS v. J. Will HICKS et al
    5-5305
    458 S. W. 2d 152
    Opinion delivered October 5, 1970

      Kirsch, Cathey & Brown, for appellant.

      Branch, Adair ir Thompson, for appellee.
   Lyle Brown, Justice.

In the trial of an eminent domain procéeding in which the appellees, landowners, were awarded $1,500, Greene County, condemnor and appellant, contended that special benefits would offset any damages to appellees. To support that contention the . appellant offered to prove that the then uncompleted project called for an asphalt surface as opposed to the long existing gravel road. After hearing an offer of proof in chambers the trial court described as uncertain and speculative the proposed establishment of a hard surfaced road and excluded the evidence. The single point for reversal concerns that ruling.

State Highway 141 traverses a farm owned by ap-pellees. The district maintenance supervisor, with the verbal approval of the district engineer, proposed to widen and improve the road in that vicinity if Greene County would obtain an additional twenty feet on each side of the highway. Greene County concurred and the county court entered an order of condemnation. The lándowners filed a claim for $1,793.60 and it was disallowed in tbto. In defending against the claim at the trial on appeal to circuit court, Greene County sought to establish that any damages from the taking of the 1.5 acres would be completely offset when the project was completed and the old road was replaced with a wider, better drained, and asphalt surfaced highway. We turn now to the facts surrounding the vital issue of whether it was shown to be reasonably certain that the plans of the supervisor to eventually install the hard surface would be realized.

The improvement project was not contract construction; it w;as conceived by the State’s district maintenance supervisor and verbally approved by his district engineer. It was being funded out of the maintenance budget of the district and the work was being performed by the maintenance crews. The undertaking was not submitted to the State Highway Commission or its director for approval. The maintenance superintendent testified that it was customary to handle minor improvement projects of this nature at the district level, that is, without seeking approval from the State’s chief engineer, the State director, or the highway commission. No plans and specifications in the usual sense were filed, nor were any ever drafted. A sketch map was filed in the county court and utilized at the trial in circuit court. It purported to be nothing more than a map showing the exact location of the proposed new right-of-way lines and the names of the affected property owners. It made no reference to drainage improvements or . to the type of finishing material. The sole commitment for an asphalt finish was the verbal assurance of the district maintenance superintendent that such a finish was by him intended and that sufficient funds were in the budget to carry out his plans.

The trial in circuit court was held in late .November 1969. It appears that the project was begun in the summer of 1969 and had progressed to the point of completing the grading and the spreading of base materials consisting of gravel and adhesive soil. The district. su-. perintendent explained that the type of asphalting could not be done after November 15 because of colder tem: peratures; therefore the project was closed down until after the following April 1, the beginning of the standard asphalting season. He insisted that the project would be resumed some five months after the. trial and that the asphalt surface would be then constructed, It was conceded that emergencies could arise on other roads in the district which might necessitate the exhaustion of maintenance funds for the fiscal year. It was also shown that a decision of either the State’s director of highways or the highway commission could alter the superintendent’s plan for asphalt finish.

From the testimony we have summarized the trial court concluded that the evidence was too uncertain as to whether asphalt surfacing would be laid; consequently, the trial court said, the jury could not consider it as a factor in deciding the allegation of offsetting benefits. The jury was instructed to consider only the improvements then in place in resolving the issue of benefits. We cannot say the trial court abused its discretion.

The burden of proving enhancement in value by reason of the improvements was on appellant. McMahan v. Carroll County, 238 Ark. 812, 384 S. W. 2d 488 (1964). All appellant offered in that connection was the assurance of the maintenance superintendent that he intended to install asphalt surfacing, beginning some six months after the trial; and he stated that in anticipation of the final result he had caused more gravel to be distributed than was necessary for an ordinary gravel surface. Neither the phrase “asphalt surface” nor “hard surface” appears in the pleadings or the exhibits. The maintenance superintendent was fourth in the chain of command — the highway commission, the state director, the district engineer, and lastly the local superintendent. The latter’s unrecorded plans could be admittedly changed by either one of his superiors.

A case from another jurisdiction which supports our conclusion is Zook v. State Highway Commission, 131 P. 2d 652 (Kan. 1943). The road cut through the farm of the landowner. A highway engineer testified that a stock pass would be installed to connect the' divided lands. On the basis of that testimony the commission sought an instruction on special offsetting benefits. The appellate court sustained the refusal of the instruction, stating as one of its reasons that the highway commission had not committed itself to the building of the cattle pass. “A finding pursuant to such an instruction, should one have been given, would have been based necessarily on conjecture by the jury.”

Another case of interest is Village of Ridgewood v. Sreel Investment Corp., 145 A. 2d 306 (N. J. 1958). The corporation’s property was condemned by the appellant village for use as a public parking lot “or for other public uses or purposes.” The village’s engineer drafted a suggested parking layout and testified that such a facility would be of peculiar benefit to the remainder of the corporation’s property. It was admitted that the plat, which was permitted to be introduced, reflected no official action on the part of the village council. The appellate court condemned the introduction of the plat, saying:

To admit promissory representations of the con-demnor’s intention might well deprive a landowner of damages to which he is justly entitled on the mere expression of an intention to do something which might never be done.

The rule that anticipated benefits cannot be considered unless they are reasonably certain to accrue is treated in 13 ALR 3d 1149, § 13 [b]. Also see 27 Am. Jur. 2d Eminent Domain, § 358.

Affirmed.


author: John A. Fogleman, Justice.

text:
    WASHINGTON NATIONAL INSURANCE CO. v. Dwight S. MEEKS
    5-5270
    458 S. W. 2d 135
    Opinion delivered October 5, 1970

      Street & Plunkett, for appellant.

      Brown, Compton, Prewett & Dickens, for appellee.
   John A. Fogleman, Justice.

Appellee brought suit against appellant on a disability insurance policy. From an adverse judgment, appellant seeks reversal, alleging error in refusing to permit cross-examination of appellee concerning his income before and after the accident from which his alleged disability resulted and in procedures in making a drawn and struck jury. We reverse for error in limiting this cross-examination.

Appellee claimed that an injury by gunshot suffered on February 22, 1968, required the amputation of his left foot and caused his total disability as defined in the policy. Appellant contested the disability. Appellee was the owner of rental real estate. He testified that he had maintained the parking lot and building rooftops in a shopping center owned by him. He also testified that he had carried furniture at his motel at various rimes and made repairs in the rooms, in addition to maintaining the roof and parking lot there. He stated that while much of his work had gone undone after the accident, other duties had been done by friends or by extra help hired. He testified that, after the accident, he had attempted to do various work and had operated a tractor crawler.

On cross-examination, it was revealed that appellee had listed outside labor costs by those who serviced his rental properties in 1968, after his injury, on his income tax return, but that none of them related to any property other than his laundromat and his motel; that he did not own some of the property he had owned prior to the injury; that he did keep the machines in his laundromat in operating condition; that he collected rents from his properties 'and did such things as check the rate of occupancy of the motel. Thereafter, appellant’s counsel asked appellee if, as a result of his accident and for a period thereafter there was any substantial difference in the amount of money he derived from his own opera-don of businesses. Appellee’s objection to this inquiry was sustained. After appellee stated on further examination that there was a significant difference in his income from his activities in the operation of his. business before and after his injury, appellant’s counsel sought to ask appellee to state the amount of the difference in the rental income from the laundromat before and after the accident and the difference in his income from his activities relating to rental property other than the laundromat and motel, to both of which inquiries appellee’s objections were sustained. The court’s ruling was apparently based upon the circuit judge’s holding that the inquiries were not proper subjects of cross-examination but were actually direct examination or attempts to impeach appellee’s affirmative answer to appellant’s inquiry whether there was any difference in the income from his business before and after the allegedly disabling injury.

We do not agree with the trial judge’s premise in ruling upon these inquiries. The fact issue to be determined was whether appellee was totally disabled. He had testified on direct examination that by reason of the injury, he was unable to perform certain duties he had previously done in connection with his real estate rental business. He did not point out any specific amounts that he had paid or been called upon to pay anyone to perform services he was unable to do. Nor did he ever state the amount by which the income he received from the rental property, for which his services had been previously required, had declined. While the answers to the questions propounded by appellant’s counsel were certainly not determinative of the question at issue, they would certainly have been pertinent, material and relevant to the question whether appellee was actually disabled and whether his disability was total, and to his testimony on direct examination that his condition required that he employ others to perform substantial services he had previously done himself. The variation in appellee’s income was not only pertinent to the issue, it was so closely related to appellant’s testimony on direct examination that we find the question to be within the proper scope of cross-examination.

We have recognized the great importance of cross-examination and the wide latitude which should be permitted the cross-examiner in eliciting facts contradictory to the testimony of the witness given on direct examination. We have said that cross-examination is a leading and searching inquiry of a witness for further disclosure touching the particular matters detailed by him in his direct examination, that it serves to sift, modify or explain what has been said in order to develop facts in a view favorable to the cross-examiner, and that its objects include weakening or disproving the case of the adversary, breaking down his testimony in chief, testing his veracity, accuracy and honesty, and exhibiting the improbabilities of his testimony. Huffman v. City of Hot Springs, 237 Ark. 756, 375 S. W. 2d 795. While we recognize the wide latitude of discretion vested in the trial courts to control and limit cross-examination, we have not hesitated to find an abuse of discretion in undue limitations thereon or abridgment thereof. Arkansas State Highway Commission v. Dean, 247 Ark. 717, 447 S. W. 2d 334; Huffman v. City of Hot Springs, supra. We feel that an inquiry so pertinent to the basic issue as the one propounded by appellant should have been answered, and that the sustaining of appellee’s objection thereto was an abuse of the court’s discretion.

Appellee contends, however, that error cannot be predicated upon the sustaining of his objection because appellant made no offer to show what the answer of appellee would have been. He relies upon Rhine v. Haley, 238 Ark. 72, 378 S. W. 2d 655. We do not consider that case applicable or controlling here. In Rhine, the objection was to the relevancy of the question. No question of relevancy is involved where, as here, the inquiry is not only pertinent to the main issue in the case but is also within the proper scope of cross-examination to wring disclosures which might modify or explain a witness’ testimony on direct examination or bring it into a perspective which might present a view more favorable to the cross-examiner.

We are not aware of any of our, cases. which require an offer of proof under the circumstances prevailing here. It is clearly the majority rule that the requirement of an offer of proof does not apply where the testimony excluded was sought to be elicited by cross-examination of an adverse witness, and it has even been said that prejudice may be presumed. Davey v. Davey, 77 N. M. 303, 422 P. 2d 38. (1967); Stillwell v. State Industrial Accident Commission, 243 Ore. 158, 411 P. 2d 1015 (1966); Tate v. Connel, .3 Ariz. App. 534, 416 P. 2d 213 (1966); Clark v. Continental Illinois National Bank & Trust Company, 68 Ill. App. 2d 16, 215 N. E. 2d 816 (1966); Kemp v. Lormer, 87 Ohio App. 307. 94 N. E. 2d 702 (1949); McKoy v. Enterkin, 181 Ga. 447. 182 S. E. 518 (1935); Choy v. Otaguro, 32 Haw. 543 (1932); Howard v. Fraser, 83 Mont. 194, 271 P. 444 (1928); Shores v. Simanton, 99 Vt. 191, 130 A. 697 (1925); Uhlman v. Farm Stock & Home Co., 126 Minn. 239, 148 N. W. 102, Ann. Cas. 1915D .888 (1914); 5 Arp. Jur. 2d 250, Appeal & Error § 809. It has been pointed out that, because of the exploratory nature of the examination, it is unreasonable to require the cross-examiner to make an offer of proof. Costa v. Regents of University of California, 116 Cal. App. 2d 445, 254 P. 2d 85 (1953); Cunningham v. Austin & N. W. R. Co., 88 Tex. 534, 31 S. W. 629 (1895). Not only do we agree with this reasoning, we also agree with .a Missouri Court of Appeals which said that to, apply. the rule requiring proffer under all circumstances would unduly restrict the right of cross-examination and. seriously impair its power and usefulness. Roger v. St. Avit, 60 S. W. 2d 698 (Mo. Ct. App. 1933). Furthermore, we agree with the statement of the Supreme Court of Iowa in holding that a proffer was unnecessary to demonstrate error in denial of proper cross-examination of an adversary’s witness, in Schulte v. Ideal Food Products Co., 203 Iowa 676, 213 N. W. 431, 434 (1927). That court said:

* * * The right to cross-examine is quite absolute. It inheres in the right of the adversary to use the testimony of the witness at all. One of its purposes is to test the credibility of the witness. The refusal of such right cannot be justified by saying that the answer of the witness would not have been favorable to the cross-examiner. Unfavorable answers are often as dangerous to the witness as favorable ones. An answer unfavorable to the cross-examiner may be more incredible than a favorable one would have been. If incredible, the credibility of the witness is thereby impaired. The consistency of the witness also may be thus put to the test. In Glassman v. Railway, 166 Iowa 254, 147 N. W. 757, we said that the refusal of proper cross-examination was “a denial of an absolute right, and has been generally held to be sufficient ground for reversal.”

While we find error in the denial of the right to have the adverse witness answer a question that was within the proper scope of cross-examination and relevant to an issue, we do not mean to say that an offer of proof should never be required to demonstrate error in sustaining an objection to a question propounded on cross-examination. We have recognized, for example, that there must be a proffer where the relevancy or materiality of the answer is not apparent. See Rhine v. Haley, supra; Gray v. Gray, 199 Ark. 152, 133 S. W. 2d 874; Thompson v. AAA Lumber Company, 245 Ark. 518, 432 S. W. 2d 873. We have also held that an offer of proof is necessary where the inquiry seeks to elicit answers from a plaintiff relating only to an affirmative defense asserted by the examiner. Munsell v. Yerger, 155 Ark. 385, 244 S. W. 465. Holdings requiring a proffer, where the matter sought to be elicited related only to an attack upon the credibility of the witness, as was done in Kingrey v. Wilson, 227 Ark. 690, 301 S. W. 2d 23 and Dixon v. State, 162 Ark. 584, 258 S. W. 401, are consistent with the necessity for the trial judge to exercise discretion in controlling inquiry into collateral matters. Our holding here does not in anywise limit the efficacy of any of the holdings in such cases.

In view of the result reached on the above point, we find it unnecessary to engage in an extended discussion of appellant’s assertion that there was error in the court’s failure to rule on its challenge to a member of the jury panel for cause before drawing 18 names from a jury panel of 23, and in the court’s drawing the names from a panel of less than 24. We do call attention, however, to our decision that the statutory procedures prescribed for making á drawn and struck jury are mandatory and a failure to follow them reversible error in Republic Mining & Mfg. Co. v. Elrod, 208 Ark. 150, 185 S. W. 2d 99. We also deem it appropriate to comment that denial of a drawn and struck jury because request was not made more than 48 hours prior to trial, as required by local court rule, cannot be sustained when the local rule has not been filed .with the clerk of this court in compliance with Rule 12 of Uniform Rules for Circuit and Chancery Courts. See per curiam, January 13, 1969, effective March 1, 1969, Ark. Stat. Ann., Vol. 3A (Supp. 1969).

The judgment is reversed and the cause remanded.

      This distinction has been recognized in other jurisdictions. See, e. g., State v. Taylor, 9 Ariz. App. 290, 451 P. 2d 648 (1969); Cunningham v. Austin & N. W. R. Co., 88 Tex. 534, 31 S. W. 629 (1895); Hartford Accident & Indemnity Co. v. Harris, 138 S. W. 2d 277 (Ct. App. Tex. 1940); Rogers v. St. Avit, 60 S. W. 2d 698 (Mo. Ct. App. 1933).


text:
    JAMES COMPANY, INC. v. Charles SHEPPARD, Jr. et al
    5-5275
    458 S. W. 2d 752
    Opinion delivered October 5, 1970
    [Rehearing denied November 9, 1970.]

      Smith, Williams, Friday ir Bowen, for appellant.

      Laws & Schultze, for appellees.
   J. Fred Jones, Justice.

This is an appeal by James Company, Inc. from a decree of the Pope County Chancery Court canceling a deed from the City of Russellville to James Company, Inc. because of failure to comply with statutory notice because of inadequate consideration.

The background facts are these: In 1926, upon application of the Russellville Lions Club, William E. Harmon and Katherine Harmon of New York, purchased real property in Russellville and for the recited consideration of One Dollar, they donated the property to the City of Russellville by warranty deed, granting and releasing the property to the City of Russellville, its successors and assigns forever, with the following provisions:

“THIS CONVEYANCE is made, however, subject to the following conditions to all singular of which the Grantee herein, for its successors and assigns, by the acceptance of this deed, assents and agrees to be bound thereby, and which conditions are to run with the land herein conveyed, viz:
That the property shall be used in perpetuity for playground and recreational purposes.
That no building shall be erected on the property except for the furtherance of desirable play and recreation.
That the premises shall always be known as Harmon Field.
That the land shall be open to all persons except that with written consent of the Harmon Foundation reasonable racial restrictions may be imposed.
That the land shall be open without charge to all except that under reasonable regulations admission may be charged for amateur contests or for activities the proceeds of which are devoted to the betterment of the property or to recreation.
That the premises hereby conveyed shall always be kept in a proper condition for recreational activities and be given proper police protection.
That upon material breach of any of these conditions the property shall revert to the grantor, William E. Harmon, his heirs and assigns.”

There is ample evidence that the property has been used for park, playground and recreational purposes by the citizens of Russellville since its acquisition and there is no evidence to the contrary except, one or two years when a part of it was planted in corn and a vegetable garden by two separate adjacent property owners. On May 22, 19,68, at a call meeting, of the Russellville City Council, resolution,No.. 209.was adopted and the minutes pertaining thereto recite as follows:

“Attorney Young proposed Resolution No. 209. This resolution is to exchange 1.7 acres (by Quick Claim Deed) [sic] in Harmon Park for a warranty deed to 2 acres across the. road from the new 12th Street School, the acreage to be used fop a park.
Motion by Hill, second by Faulkner, that we adopt Resolution No. 209 as read., Motion passed.”
Resolution No. 209 is as follows:
“WHEREAS, there is a shopping center to be.built adjacent to a part of the Harmon Playground area, and ... <
WHEREAS, because of the. parking, situation and the proximity of the shopping center to said portion of Harmon Playground, and
WHEREAS, said shopping center oyvner, realizing that the City , of Russellville does not have fee simple title to said property,, has offered to exchange .properties, giving a warranty deed to the City of Russell-ville in exchange for a quitclaim, deed,
NOW, THEREFORE, BE IT. RESOLVED by the City Council of the City of Russellville, Arkansas that the Mayor and City Clerk,, upon, receiving a warranty deed from James Company,. Inc. to, a two (2)-acre tract of land selected by Floyd Metts, Recreation and Parks Director, execute a special warranty deed to James Company, Inc. to the following lands:
Lots 2 arid 11 and fractional Lots 1 and 12, Block ‘33, W. J. White’s Addition to" the City of Russell-ville, and the fractional Block 45, Mary A. Russell’s Addition to the City of Russellville,
the property being the west portion of the land known as Harmon Playground and lying West of North Jonesboro Avenue.”

On the same day, May 22, 1968, under authority of this resolution, the City of Russellville, by its mayor and city clerk, executed a special warranty deed transferring the property to James Company, Inc. in consideration of the exchange of land by James Company, Inc., the receipt of which was acknowledged.

In July, 1968, the Russellville Lions Club adopted and filed with the city clerk a resolution pointing out that the Russellville Lions Club was instrumental in obtaining the gift of Harmon Field to the City of Russellville and owes a continuing duty to the Harmon Foundation; and after pointing out the reverter provision in the deed of conveyance, as well as the questionable value of the property given in exchange, the resolution then resolved that:

“(1) The Mayor and City Council of Russellville [be] urged to do everything in their power to rescind the above transaction and restore the full area of Harmon Field to the City of Russellville.
(2) The Mayor and City Council of Russellville be urged to invite Russellville Lions Club to send a committee to sit in on any future negotiations concerning Harmon Field.”

On July 11, 1968, at a call meeting of the Russell-ville City Council the minutes recite as follows:

“Attorney Young read resolution of Russellville Lions Club which asks that the transfer of 1.7 acres of Harmon Playground be rescinded and said property be returned to the City for use as a park. Motion of Humphrey, second by Ford, that we adopt resolution of the Lions Club and the request to rescind 1.7 acres of Harmon Playground that was transferred. Motion passed unanimously.”

On February 3, 1969, the appellees, as citizens and taxpayers of Russellville, filed their petition in the Pope County Chancery Court alleging that the described premises, known as Harmon Field or Harmon Playground, have been used for various forms of recreation since the conveyance to the city; that it is the intention of the James Company, Inc. to construct either parking facilities or buildings upon the described premises for use in connection with the construction and operation of a shopping center, and that James Company, Inc. has commenced construction activities upon the lands by engaging in dirt moving and ditching operations. The petition then sets out and alleges that the special warranty deed was executed and delivered to James Company, Inc. by the City of Russellville without any authority to do so; that the purported conveyance constitutes a violation of the conditions of the conveyance from William E. Harmon and his wife, Katherine F. Harmon, to the City of Russellville and thus subjects, not only the lands purportedly conveyed to the James Company, Inc., but the remaining portion of Harmon Field to the reversionary rights set out in the deed from the Harmons to the City of Russellville. The petition then alleges that even if the City of Russellville had the authority to make such a conveyance, the attempted conveyance was invalid and void in this instance for the reasons: That no proper notice was given of the intention to make the proposed exchange, and, the consideration for which said lands were purportedly exchanged is grossly inadequate. Among other things, the petitioners prayed that the special warranty deed dated May 22, 1968, from the City of Russellville to James Company, Inc. be canceled, and in effect, prayed that the parties be placed back in status quo.

The chancellor found that the City of Russellville, in its conveyance of the described property to James Company, Inc., on May 22, 1968, failed to comply with statutory requirements for such sale; and, that the City of Russellville, received an inadequate consideration for such conveyance; and, for these reasons, the conveyance of May 22, 1968, from' the City of Russellville to James Company, Inc., should be canceled and set aside. The chancellor theh decreed, as follows:

“1. That the Special Warranty Deed dated May 22, 1968, from CITY OF RUSSELLVILLE to JAMES COMPANY, INC., is hereby canceled arid set aside and that title to the following described lands, to-wit:
Lots 2 and 11 and fractional Lots 1 and 12, Block 33, W. J. White’s Addition to the City of Russell-ville, and the fractional Block 45, Mary A. Russell’s Addition to the City of Russellville.
is hereby vested in the CITY OF RUSSELLVILLE;
2. That the Warranty Deed Dated May 22, 1968, from JAMES COMPANY, INC., to CITY OF RUS-SELLVILLE is hereby canceled and set aside arid that title to the following described lands, to-wit:
Part of the NEM SWM of' Section' 8, Township 7 North, Range 20 West; commencing at the SE Corner of the NEM SWM, run thence West 417.42 feet to the corner of the cemetery for point of beginning; thence North 417.42 feet; thence West 208.71 feet; thence. South 417.42 feet; thehce. East 208.71 feet to point of beginning, being two acres is hereby vested in JAMES COMPANY, INC.;
3. That Defendant, JAMES COMPANY, INC., is hereby directed to restore the surface of the ground described in the Special Warranty Deed from CITY OF RUSSELLVILLE to JAMES COMPANY, INC., to JAMES COMPANY, INC., to its condition prior to said conveyance and remove, any encumbrances;
4. That the Cross-Complaint of Defendant, JAMES COMPANY, INC., against Defendant, CITY OF RUSSELLVILLE, for breach of warranty is hereby dismissed.”

Considerable discussion in the briefs is directed to the nature of the estate created by the deed from the Harmons to the City of Russellville. The appellant suggests that it created either a fee simple in the City of Russellville, subject to a power of termination in William E. Harmon, or, that it created a fee simple determinable in the City of Russellville subject to a reversion in William E. Harmon. We find it unnecessary to extend our consideration beyond the ^points relied on by the appellant and in doing so, the nature of the estate becomes unimportant in this case. The points on which the appellant relies are as follows:

“The Court erred in applying Ark. Stat. Ann. § 14-701 to the case.
The Court erred in holding that there was an inadequacy of consideration.”

We are of the opinion that the chancellor was correct on both points.

Ark. Stat. Ann. §§ 14-701 through 704 (Repl. 1968) read as follows:

“§ 14-701 Any general or local law to the contrary notwithstanding, the State or any municipal corporation, county or other political subdivision thereof, shall have authority to sell, lease, grant, exchange or otherwise dispose of any property or interest therein comprising parks, playgrounds, golf courses, swimming pools, or other property which has been dedicated to a public use for recreational or park purposes, or has been dedicated to a public use for recreational or park purposes by a private citizen, corporation, or association, and thereafter acquired by the State, county, city or other political subdivision thereof, without regard to whether said public use has been previously abandoned, or that said property has become unsuitable ox inadequate for the purpose for. which originally dedicated, said disposition to be on such terms and conditions as may be deemed desirable or necessary. Provided, however, that any lease under this act [§§ 14-701— 14-704] shall be for a period not to exceed twenty (20) years.
§ 14-702 Such sale, lease, grant or disposal shall be in the discretion of, and executed by:
(1) the Governor, as to State property;
(2) the county court as to county property;
(3) the mayor and council, city commissioners, .or other governing authority, as to property of a .municipal corporation.
§ 14-703 Any sale, léase, gram, exchange or other disposal of any property under the provisions of this act [§§ 14-701 — .14-704] shall be made only after advertising such in a newspaper in which legal advertisements are published for the county in which the land and/or other .facilities to; be disposed of lies, once a week for four [4] weeks. .Such advertisements shall describe the property, shall state the manner of disposition to .be made, shall specify the time, and place of such disposition, and shall state any other requirements stipulated by the disposing instrumentality, of government, including an award to the highest , responsible bidder, subject to. the provisions herein contained. In the event the property to be sold shall lie in more than one [1 ] county, such advertisement shall be run once a week for four [4] weeks in the newspaper in which legal advertisements are published for. all, such counties. All sales and/or other, dispositions made under the provisions of this act shall be made hinder the terms of the advertisement for cash sale, rental, or lease consideration. Provided, however, that the selling or disposing authority shall have the right to reject all bids in the event the high bid shall prove unsatisfactory for any reason, and said property shall then be readvertised and disposed of under the provisions above set out. All State property required to be advertised under* this bill shall" also be advertised in two [2] additional newspapers of general circulation in this State.
§ 14-704 Nothing herein shall be construed as impairing the obligation of any contract provision, bond issue or other indebtedness thereon, whether by way of reversionary clause or otherwise.”

Under the plain wording of the statute this sale or exchange could “be made only after advertising such in a newspaper in which legal advertisements are published for the county in which the land and/or other facilities to be disposed of lies, once a week for four [4] weeks.” Even if the city had followed the procedure set out in the statute, it still would have been confronted by the protection accorded the Harmon reversionary interest under § Í4-7Ó4, supra.

The uncontroverted facts are so clear and the statute so plain, the chancellor could scarcely have fáiled to render the decree that he did if §§ 14-701 — 704, supra, apply to the facts in this , case; and we hold that they do. The chancellor simply held that the attempted conveyance was. void for failure to comply with the Act, and in so holding, the chancellor was correct. No notice of any kind was given. The city áttorney who presented the resolution authorizing the sale also represented the would-be purchaser, ánd the deed was dated on the same day the resolution was adopted. As a matter of fact, minutes of the council meeting indicate that the council did not authorize the execution of a special warranty deed at all, but only a quitclaim deed. The resolution itself while setting out thát a quitclaim deed wbüld be acceptable, authorized a special warranty deed. We do not imply that this procedure alone would have voided the conveyance. It does indicate haste in attempting to close the transaction, and it points up good reason for § 14-703, supra.

The appellant seems to recognize the obvious failure of the City of Russellville to comply with the provisions of § 14-701, supra. Indeed the appellant argues that if the city had followed this statute, the city would be violating the Constitution of the United States and Of Arkansas in taking or disposing of Harmon’s re-versionary interest without just compensation. The appellant cites Ark. Stat. Ann. § 19-3631 (Repl. 1968) as the proper authority for the conveyance, and argues that the attempted conveyance should be approved and sustained under the provisions of that statute. Section 19-3631 comes from legislativé Act 486 of 1965 and authorizes the sale of property and the issuance and sale of bonds in connection with the creation of parks and playgrounds. This statute has to do with the acquisition and riot the disposition of public parks arid playgrourids. Act 486 is titled:

“An Act Authorizing Municipalities to Develop and Provide Public Parks and Fácilities; to Issue Revenue Bonds; Providing for the Payment of Said Bonds; and for Other Purposes.”

The first section of this Act is digested as Ark. Stat. Ann. § 19-3631 (Repl. 1968) under the heading “General power to acquire, construct and maintain recreational facilities,” and reads as follows:

“Any municipality in this State is hereby authorized to own, acquire, construct, reconstruct, extend, equip, improve, operate, maintain, sell, lease, contract concerning, or otherwise deal in or dispose of any land, buildings, improvements or facilities of any and every nature whatever necessary or desirable for the developing and providing of public parks and facilities within or near the municipality, in-cludirig, without limitation, recreation areas, stadi-urns, auditoriums, arts and crafts centers, folklore centers, interpretative centers, camping areas, and other facilities so as to provide for the recreation and cultural needs of its inhabitants and to stimulate and encourage the economic growth of the municipality and its inhabitants (with each such undertaking by a municipality hereundfer sometimes referred to herein as a 'project’).”

Section 17 of Act 486 may throw some. light on the objects and intentions of the legislature in passing the Act, this section is as follows:

“It is hereby found and declared that municipalities in this State do not have adequate programs for the developing and providing of public parks and facilities and that on account of such inadequate programs the municipalities have been uhable to provide its inhabitants with necessary park and other facilities and have not realized the benefits which will flow from the stimulated economic growth resulting from such adequate programs and that unless such programs are made available, municipalities and the inhabitants thereof will continue to be penalized. The above set forth conditions can be alleviated by the authority set forth in this Act. An emergency, therefore, is declared to exist and this Act being necessary for the preservation of the public peace, health and safety, shall take effect and be in force from and after its passage.”

Section 1 of this Act simply,'and ih plain language, authorizes cities to sell land necessary or desirable for the developing and providing .of public parks and facilities. It does not authorize the sale of public parks or playgrounds at all.

The appellant concludes its brief with the assertion “that the cities of Arkansas should have some authority to deal with those park properties , in. which they do not hold a fee simple absolute title.” Perhaps the appellant is right in this assertion, but that is a. matter which addresses itself to the legislature and not to this court.

As to appellant’s second point, we are of the opinion that the chancellor’s finding was not against the preponderance of the evidence. Jackson Ross qualified as an expert appraiser. He testified that the market value of Harmon playground is $25,575, and the market value of the land given in exchange is $6,000. Mr. A. R. Jordan qualified as an expert appraiser and testified that in his opinion the Harmon land was worth $11,875 on the basis of twenty-five cents per square foot. His opinion was based on a plat showing 47,500 square feet. He testified that his appraisal would be changed upward if the tract contained 51,000. Mr. Jordan made no attempt to appraise the property James Company attempted to exchange for a part of the Harmon playground. The evidence indicates that the playground is close to downtown 1 Russellville and that the two acre tract offered in exchange is adjacent to a several acre playground near a new school building, and that no one resides near the property. In any event, the expert appraisal testimony most favorable to the appellant, places the value of the Harmon playground property almost twice the value of the property offered in exchange according to the only appraisal made of the property offered in exchange.

The decree is affirmed.