text:
    Charlie DAVIDSON v. Harriet BELL
    5-5041
    447 S. W. 2d 338
    Opinion delivered December 1, 1969

      F. C. Harrelson, for appellant.

      Proctor & Proctor, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a decree of the court setting aside a deed allegedly given by P. J. Bell (sometimes referred to as Phillip Bell) and Harriet Bell, his wife, to Charlie Davidson and wife..Bell, purportedly 102 years of age at the time of his death, was the owner of certain lands, approximately 50 acres, in St. Francis County, Arkansas, which Charlie Davidson and wife, appellants herein, contend were deeded to them on October 7, 1967. Evidence offered by the appellants through the testimony of Charlie Davidson, Marie Morrison and Bill Baskin was to the effect that Davidson went into Taylor Motor Company at Forrest City, and asked Mrs. Marie Morrison, who worked in the office of the motor company, to notarize a deed. He then brought P. J. Bell to the window, and Mrs. Morrison, after asking for identification, presented the deed for Bell to sign. Upon being advised that Bell’s wife, Harriet, could not sign her name, Bill Baskin, also an employee of the motor company, was called in for the purpose of witnessing Mrs. Bell’s mark. Both Baskin and Mrs. Morrison testified that Harriet Bell made her mark on the deed, and both testified that the person identified as P. J. Bell signed the instrument. Neither, witness saw Davidson give either of the Bells any money. Charlie Davidson, who had leased the lands in controversy from Bell for 15 or 16 years, testified that he paid cash, obtaining $2,300.00 on August 14, and he also said that he agreed to give the Bells rent as long as they lived, amounting to $150.00 per year. Admittedly, he did not pay anything to the Bells at the time he received the deed, testifying that when he paid them, only the three (Davidson and the Bells) were present.

Sherman W. Baker, according to his testimony, a nephew of P. J. Bell, testified that he was at the home of the Bells on the day the purported deed was executed. Baker said that he went to the house before day, intending to go hunting; however, instead of going hunting, he stayed at the house all day, from 4:00 A.M. to 9:30 P.M. The witness said that neither Bell nor his wife left the house during that period of time. Jerry Harvey Shaw testified that he went with Sherman Baker to the Bell residence, this witness stating that they arrived about 5:00 A.M. He said that he stayed about 15 minutes, and then went squirrel hunting, and that he returned to get Baker about 9:00 P.M.

Danner Cooper testified that he went to the home of Bell on the aforementioned date, and stayed all day, until 9:00 or 9:15 P.M. He confirmed that Baker was at the house during the same period, and he also testified that neither of the Bells left at any time:

‘‘Mrs. Bell was real low sick, and Mr. Bell said he had been up all night. Something he had eaten tore his stomach up.”

Earl Davenport, a handwriting expert of Memphis,

testified on behalf of appellee. This witness was of the opinion that the signature of Phillip Bell on the deed to Davidson was not made by the same person who had signed other exhibits offered, these last having admittedly been signed by Phillip or P. J. Bell. Davenport went into a great deal of detail in explaining to the court how he had reached his conclusions.

We have often commented, so often as to need no citation of authority, that the Chancellor is in a much better position to determine fact questions than this court, inasmuch as he sees and hears the witnesses testify, and observes their demeanor on the witness stand. Here, on the one hand, we have testimony that Bell and his wife executed a deed to Davidson and wife on October 7, 1967; on the other hand, we have two witnesses who testified that neither Bell nor his wife left their home at any time during the day on that date, and another witness, to an extent, corroborated this evidence. We certainly are not in a position to say which witnesses were correct, or whether Mrs. Morrison and Mr. Baskin were mistaken in their identification.

The other facts, howeyer, lend support to the Chancellor’s findings. From the record, it appears that the court paid close attention to the rather lengthy testimony of the hand-writing expert. It also seems a little unusual that Davidson received $2,300.00 in cash on August 14, but did not use it to pay Bell for a considerably long periol of time, if we remember that the deed was not allegedly executed for nearly two months. When asked if he carried the money around in his pocket, this appellant replied, “No, sir. I didn’t carry it in my pocket. I had a place to put it.” He never explained further. Nor did he ever say when or where he gave Bell this cash money.

Appellant says that, though Davidson received the deed on October 7, Bell made no attempt to have it cancelled before his death (which occurred on February 23, 1968). Of course, it is the contention of appellee that no deed was given at all; that it was simply a forgery, and that Harriet Bell knew nothing about the deed until it was placed of record. Actually, this circumstance is very pertinent to the litigation, for Davidson did not record his deed until March 20, 1968, 24 days after the. death of Bell. Davidson’s stated reason for this undue delay is reflected in the record:

“Q. Mr. Davidson, tell this Court now why that deed wasn’t recorded.
A. (No audible response)
Q. Co ahead. Just because he gets a welfare check—
A. Well, I guess that’s what it really was. He said he’d have his checks.cut out.”

This was simply another question of fact for the Chancellor to decide.

Appellant asserts that the court erred in finding that appellee was present in person on the date of hearing. We find no significance in this fact, nor is any authority cited to the effect that error was committed. Harriet Bell, said to be 98 years of age, was apparently unable, because of ill health, to attend the hearing, and it had already been necessary for one of appellant’s witnesses (Baskin), sometime prior to the trial, to go to the Bell home in order to make an identification of Mrs. Bell. We know of no law that requires a party litigant, in litigation involving the setting aside of a deed, to be present.

It is also asserted that the court erred in decreeing that Harriet Bell is the owner of the lands involved. Since the record reflects that the property had been deeded to P. J. Bell, alone, rather than to P. J. and Harriet, as husband and wife, thus creating an estate by the entirety, it does appear that appellee only held a dower and homestead interest. However, that fact does not give appellant cause for complaint; certainly, Mrs. Bell had a sufficient interest in the property to bring suit to set aside the deed, and, after all, this litigation only determines Mrs. Bell’s rights as against appellants. If there are third parties somewhere who claim an interest in the lands, their right to assert their ownership has not been affected by this litigation.

This is not a case where it is contended that a deed was obtained by duress or fraud: under those circumstances, the law requires that the proof be clear, cogent and convincing before the deed can be set aside. Here, it is simply asserted by appellee that the deed was a forgery, and the quantum of proof necessary to sustain such an allegation is a preponderance of the evidence. Coulter v. Clemons, 237 Ark. 227, 372 S. W. 2d 396. We are unable to say that the Chancellor’s findings were clearly against the preponderance of the evidence.

Affirmed.

      The testimony does not reflect what Bell offered as identification.

      Baskin later testified that he subsequently went to the home of Harriet Bell to ascertain if she were the same person that placed her mark on the deed. He testified that she was the woman who was present on the morning of the signing at the motor company, and who joined in the conveyance by making her mark.

      Davidson stated that this $2,300.00 was obtained by cashing a check at the bank given to him by a third party, and in the amount of $4,939.12. He said he paid off a note in the amount of $2,439.12, leaving a balance of $2,500.00. The witness further testified that he left $200.00 on deposit, but never did say where he obtained the $200.00 to add to the $2,300.00, purportedly given for execution of the deed.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Steve MARLAR et ux
    5-5061
    447 S. W. 2d 329
    Opinion delivered December 1, 1969

      Thomas B. Keys and Virginia Tackett, for appellant.

      Graves & Graves, for appellees.
   George Rose Smith, Justice.

In 1962 the highway department set .about widening and paving a dirt road that passed in front of the appellees’ home in Nevada county. The landowners resisted the entry upon their property. To meet that obstacle the highway department filed this suit to enjoin the Marlars from obstructing the work. The chancellor granted the injunction but required the department to file a $10,000 bond to protect the landowners’ claim.

The case was not tried until December, 1968. The court found that the public easement was not as wide as the department asserted it to be. The landowners were awarded $5,500 as compensation for the additional right of way that was taken. This appeal is from that award.

The department relies upon two instruments to support its contention that it acquired an 80-foot easement; in 1958, but its proof falls short of showing that either; instrument was binding upon the landowners. Marlar joined a number of other landowners in conveying an easement to the highway department in 1958, but his wife’s failure to join in .a conveyance affecting the homestead rendered the instrument void. Ark. Stat. Ann. § 50-415 (1947); Autrey v. Lake, 195 Ark. 243, 112 S. W. 2d 434 (1937). The other basis for the department’s asserted easement is a 1958 county court order that purported to condemn an 80-foot right of way, but the department failed to sustain its burden of proving that the landowners had notice or knowledge of the order. Ark. State Highway Comm’n v. Anderson, 234 Ark. 774, 354 S. W. 2d 554 (1962). Until such notice is given the one-year statute of limitations against the landowners’ claim to compensation is not set in motion. Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803 (1928).

Next, the appellant insists that the county court had exclusive jurisdiction to fix the amount of the landowners’ compensation. Here, however, the highway department affirmatively invoked the jurisdiction of the chancery court and filed a bond guaranteeing that it would pay “the just and full amount of any judgment or settlement that may be entered in this cause.” In those circumstances the department is not in a position to question the jurisdiction of the forum of its own choosing. (Here that rule is demonstrably just, for while this case was pending the landowners did file a claim in the county court, only to have it rejected because the county had no funds whatever with which to pay the claim.)

Finally, the department argues that the award of $5,500 is excessive. Marlar testified that the taking, and especially the destruction of two magnificent shade trees in front of his house, had decreased the value of his property by at least $10,000. Two expert witnesses testifying in his behalf fixed the damage at $6,000 and $5,000. On the other hand, an appraiser for the highway department testified that in his opinion the benefits to be derived from a paved highway were equal to the damage suffered by the landowners, so that they were entitled to recover nothing. After studying the proof we cannot say that the chancellor’s decision is against the weight of the evidence.

Affirmed.

Brown, J., disqualified.


author: Lyle Brown, Justice.

text:
    SULPHUR SPRINGS RECREATIONAL PARK, Inc. v. CITY OF CAMDEN, ARKANSAS et al
    5-5079
    447 S. W. 2d 844
    Opinion delivered December 1, 1969
    [Rehearing denied January 12, 1970.]

      G. E. Snuggs, for appellant.

      Gaughan, Laney, Barnes & Roberts, for appellees.
   Lyle Brown, Justice.

For the background facts in this case see Sulphur Springs Recreational Park, Inc. v. City of Camden et al, 242 Ark. 340, 414 S. W. 2d 113 (1967). After our decision dismissing that appeal for want of a final order, plaintiff-appellant subsequently sought and was granted another hearing. As a result of the last proceeding, the court again refused to strike the answer of the City of Camden and the individual codefendants. Secondly, on motion of the defendants, the court dismissed the complaint because .at the time of the filing of the suit the corporate plaintiff’s charter was nonexistent. Notwithstanding the charter was subsequently reinstated, the trial court held that the reinstatement was not retroactive to the date of forfeiture. Sulphur Springs Recreational Park appeals from those two rulings.

The Refusal of the Court to Strike the Answer. Recreational Park filed its complaint at Camden on January 14, 1965. Near the top of the complaint was printed “G. E. Snuggs, Lawyer, El Dorado, Arkansas.” The complaint was signed “G. E. Snuggs, Solicitor for Plaintiff.” Fifteen days later the defendants filed an answer and left a copy in the clerk’s office for plaintiff’s counsel. The copy was picked up by plaintiff’s counsel on February 10, 1965. Ark. Stat. Ann. § 27-362 (Repl. 1962 and Supp. 1967) sets out the manner in which an answer is to be served. Here is the pertinent portion:

Service upon the attorney or upon a party shall be made by delivering a copy to him or by mailing it to him at his last known address, or if no address is known, by leaving it with the clerk of the court.

Appellant argues that since Mr. Snuggs’ .address was shown on the complaint as “Lawyer, El Dorado, Arkansas,” the copy of the answer should not have been left with the clerk but should have been mjailed to Mr. Snuggs; and that the failure to follow that procedure requires that the answer be stricken. The contention is without merit. The attorneys for the defendants testified that they did not know Mr. Snuggs’ mailing address ; that is, no specific address in El Dorado was listed; that no address of any kind appeared below Mr. Snuggs’ signature where such addresses are commonly listed; and that the fine print “Lawyer, El Dorado, Arkansas” was inconspicuous and was overlooked. In fact the attorneys were not sure Mr. Snuggs had an office in El Dorado. Whether counsel had knowledge of Mr. Snuggs’ mailing address was a question of fact and we cannot say he preponderantly showed that knowledge to have been possessed by opposing counsel. Additionally, appellant does not claim any prejudice; in fact it is not disputed that appellant’s counsel obtained a copy of the answer from the clerk within ten days after it was timely filed.

The Dismissal of the Complaint. The corporate charter of appellant was revoked by a governor’s proclamation dated February 1, 1952, for nonpayment of franchise taxes. This suit was filed January 14, 1965. The corporation was reinstated on May 1, 1968. Appellees moved for dismissal of the complaint on the ground that it was filed at a time when the corporate entity was extinct; and that the rescission of the forfeiture was not retroactive.

Appellant did not have corporate status at the time the suit was filed. Not being in existence it possessed no capacity to sue. The subsequent reinstatement did not vest it with continuing existence from date of origin. Moore v. Rommel, 233 Ark. 989, 350 S. W. 2d 190 (1961). The restoration of the corporate status before trial creates no right to prosecute the initial complaint. Clark Estate Co. v. Gentry, 240 S. W. 2d 124 (Mo. 1951).

Appellant says there was no authority for revocation of its charter. That argument is based on the erroneous assumption that it is a nonprofit organization; the fact is that it is chartered as a business corporation.

Additionally, appellant argues that appellees’ answer in effect admitted appellant’s status as a corporation. Ark. Stat. Ann. § 27-1121 (Bepl. 1962) states that the alleged status of a party plaintiff, such as a corporation, shall be admitted unless specifically denied in the answer. In their answer the appellees did not set up a specific denial of the alleged status of plaintiff as a corporation. In April 1967 appellees inquired by interrogatories of 'the status of the corporation. Appellant refused to supply the information on the ground that the answer admitted the corporation’s legal existence. Thereafter appellees amended their answer and alleged the forfeiture of the charter.

We have many times held that it is within the inherent power of the trial court, within certain general limitations, to permit the amendment of pleadings. In Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645 (1951), we said:

We have repeatedly stated that the trial court is vested with broad discretion in allowing amendments to pleadings under Ark. Stat. § 27-1160 in order to effectuate the manifest purpose of the statute to permit the trial of litigation upon its merits.

Of course the particular facts in each instance are significant. Here the appellees timely filed an answer. Before the case was finally called to trial the defendants discovered that the corporation was not in existence at the time the suit was filed. Appellees filed an amendment asserting that fact and the amendment was accepted by the court. We cannot conceive that amendment to have affected the substantial rights of the plaintiff. Therefore we are unable to say that the court abused its broad discretion pertaining to the allowance of amendments to pleadings.

Affirmed.


author: John A. Fogleman, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. William J. DEAN et al
    5-5032
    447 S. W. 2d 334
    Opinion delivered December 1, 1969

      Thomas B. Keys and Billy Pease, for appellant.

      Clark, Clark & Clark and Guy H. Jones, for appellees.
   John A. Fogleman, Justice.

This is a sequel to Arkansas State Highway Commission v. Dean, 244 Ark. 405, 425 S. W. 2d 306. On that appeal we reversed because of the failure of the trial court to give an instruction relating to the duty of appellees to minimize damages sustained by reason of a partial taking of their lands. Although that issue was not before the court on retrial, we find reversible error in the limitation imposed by the trial judge upon appellant’s cross-examination of C. Y. Barnes, an expert witness on real estate values. Barnes was the first witness called by appellees to establish the amount of compensation due them in this eminent domain action. He detailed impressive qualifications. He related the results of extensive investigations pertaining to this property, the factors influencing market values in the community generally and of the property of appellees specifically. He stated that the entire tract of 85.55 acres had a fair market value of $260,000 before the taking of 11.04 acres for the construction of Interstate Highway No. 40, but that the lands thereafter remaining had a value of only $174,000. Barnes obtained a list of 250 real estate sales that had taken place in the Conway community. On direct examination, he stated that he attributed $86,000 in damages to the lands of appellees as a result of his studies of these market sales.

The burden of demonstrating that there was no reasonable basis for the opinion of this witness, or the weakness of its basis, then devolved upon appellant. Arkansas State Highway Commission v. Stobaugh, 247 Ark. 231, 445 S. W. 2d 511; Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d 381. In an effort to meet this burden, its attorney commenced a line of inquiry to determine whether the real estate sales considered by the witness involved lands comparable to those of appellees. After the witness had related the details of the sale of a one-acre tract and of a two-acre tract, and had stated that he did not consider two other sales because he did not feel that they represented fair market transactions, he was asked if he had another sale. After the trial judge interjected an inquiry as to the attorney’s purpose in asking about these sales, a hearing in chambers was had. There the judge informed appellant’s attorney that he was exercising his judicial discretion and limiting the examination of the witness about particular sales as repetitious unless another matter was brought to the court’s attention. When the circuit judge recalled that the witness said that he considered 250 sales about each of which counsel might inquire, appellant’s attorney asked if he might be permitted to ask the witness about the 15 sales that aided him most in arriving at his valuations. Even though appellees’ counsel suggested that appellant’s attorney inquire about 25 of these sales on which the witness relied, the judge ruled that he would exercise his discretion to limit cross-examination on any particular point. He added that it seemed to him that a point of exhaustion had been reached on the point of comparable sales.

A trial judge has the power and duty to exercise a reasonable control over the mode of interrogation of a witness and to stop production of further evidence on any point when the evidence theretofore produced is so full as to preclude reasonable doubt. Ark. Stat. Ann. § 28-703 (Repl. 1962). There is no reversible error in a court’s termination of cross-examination, unless there is an abuse of sound judicial discretion. Bartley v. State, 210 Ark. 1061, 199 S. W. 2d 965; St. Louis, I. M. & S. Ry. Co. v. Day, 86 Ark. 104, 110 S. W. 220. Yet this discretion is not unlimited. See Rooks v. State, 199 Ark. 1188, 136 S. W. 2d 481. It is the duty of the trial judge to permit a full, fair and reasonable cross-examination of a witness. Helena Cotton Oil Co. v. Harrington, 170 Ark. 654, 280 S. W. 630. Efforts of a trial court to expedite disposition of business before it is commendable and should be encouraged, but the right of a litigant to fully and properly cross-examine an adverse witness is more important and should not be abridged, even for the sake of expedition. Trammell v. State, 193 Ark. 21, 97 S. W. 2d 902.

The proper cross-examination of a witness is the most effective attack that can be made upon his credibility and the best means of diminishing the weight which might be accorded his testimony. A wide latitude is permitted in cross-examination as to questions tending to impeach the credibility of a witness or in eliciting matter for consideration of the jury in weighing the testimony. Peterson v. Jackson, 193 Ark. 880, 103 S. W. 2d 640. Where the testimony of a witness is opinion evidence, it is essential that opportunity for thorough cross-examination be accorded. Coca-Cola Co. v. Moore, 246 F. 942 (8th Cir. 1917). Courts should be especially liberal in allowing full and complete examination of an expert witness. Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S. W. 2d 916; Coca-Cola Co. v. Moore, supra; Cropper v. Titanium Pigment Company, Inc., 47 F. 2d 1038, 78 A. L. R. 737 (8th Cir. 1931); Adams v. Ristine, 138 Va. 273, 122 S. E. 126, 31 A. L. R. 1413 (1924); Stemons v. Turner, 274 Pa. 228, 117 A. 922, 26 A. L. R. 727 (1922); Annot., 17 Am. & Eng. Ann. Cas. 4 at 18 (1910).

In Coca-Cola Co. v. Moore, supra, a case arising in the Eastern District of Arkansas, the Eighth Circuit Court of Appeals aptly said:

* * The testing of the probative weight of an expert’s estimate of value necessarily requires a liberal latitude of inquiry into the factors and considerations upon which it is based.”

We find the language of the Kansas Supreme Court in Bourgeois v. State Highway Commission, 179 Kansas 30, 292 P. 2d 683 (1956) applicable. That court reversed a judgment in an eminent domain proceeding because of undue limitations on cross-examination of expert value witnesses. It said:

“* * # but appellant had the right on cross-examination to test the credibility of the testimony of the witnesses by asking qualifying questions as to the extent of the knowledge on the part of each witness, and as to each and every element that such witness took into consideration in arriving at his opinion of the value of the property. * * # On cross-examination great latitude is necessarily indulged in order that the intelligence of the witness, his powers of discernment and his capacity to form a correct judgment may be submitted to the jury so it may have an opportunity for determining the value of his testimony. * * *” (Citations omitted.)

The burden imposed upon appellant to demonstrate the lack of basis for this witness’ opinion, or the weakness thereof, was quite heavy in view of the witness’ qualifications and studies. For this reason, the latitude of permissible cross-examination should have been great. In Huffman v. City of Hot Springs, 237 Ark. 756, 375 S. W. 2d 795, in holding that a limitation on cross-examination was error, we adopted a statement from 98 C. J. S. 125, Witnesses § 372 which reads, in part:

“* * * The purpose of cross-examination, however, is not limited to bringing out a falsehood, since it is also a leading and searching inquiry of the witness for further disclosure touching the particular matters detailed by him in his direct examination, and it serves to sift, modify, or explain what has been said, in order to develop new or old facts in a view favorable to the cross-examiner. The object of cross-examination, therefore, is to weaken or disprove the ease of one’s adversary, and break down his testimony in chief, test the recollection, veracity, accuracy, honesty, and bias or prejudice of the witness, his source of information, his motives, interest, and memory, and exhibit the improbabilities of his testimony.”

We have no alternative to holding that the strict limitation imposed was an abuse of the trial court’s discretion. We do not mean to say that the court should have permitted a detailed interrogation about each of the 250 sales studied by Barnes. Yet neither the appellant’s offer to limit examination on sales, nor the suggestion of limitation by appellees’ attorney would have permitted an unreasonable extension of cross-examination on this important feature of the determination of the amount of just compensation.

On the previous appeal we held that there was error, on the record then before us, in the failure of the trial court to instruct the jury not to consider the Collier tract (39 of the 85.55 acres owned by appellees) either as to benefits or damages, because it was purchased by appellees with knowledge that the possible taking by appellant would leave it without access. Yet, we were unwilling to say that the Collier tract should be eliminated from consideration as a matter of law under any and all circumstances which might arise on retrial. Appellant made no objection in the trial court to an instruction which submitted this issue to the jury, nor does it assert error here because of this.

We do not reach appellant’s point asserting that the jury verdict of $108,000 was excessive and not based upon substantial evidence. We cannot anticipate that the evidence or the verdict will be the same upon a retrial. Therefore, no useful purpose would be served by any discussion of this point.

Because of the error indicated, the judgment is reversed and the cause remanded for a new trial.

Byrd, J., not participating.


author: J. Feed Jones, Justice.

text:
    A. G. HAYGOOD and COAL OPERATORS CASUALTY CO. v. John Willie TURNER
    5-5083
    447 S. W. 2d 316
    Opinion delivered December 1, 1969.

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellants.

      Paul K. Roberts, for appellee.
   J. Feed Jones, Justice.

This is a workmen’s compensation case involving a claim for hernia. John Willie Turner was the claimant before the Workmen’s Compensation Commission; A. G. Haygood was the respondent employer and Operators Casualty Company was the respondent insurance carrier. The claim was filed under Ark. Stat. Ann. § 81-1313 (e) which provides as follows:

“In all cases of claims for hernia it shall be shown to the satisfaction of the Commission:
(1) That the occurrence of the hernia immediately followed as the result of sudden effort, severe strain, or the application of force directly to the abdominal wall;
(2) That there was severe pain in the hernial region;
(3) That such pain caused the employee to cease work immediately;
(4) That notice of the occurrence was given to the employer within forty-eight (48) hours thereafter;
(5) That the physical distress following the occurrence of the hernia was such as to require the attendance of ,a licensed physician within forty-eight (48) hours after such occurrence. .

The Workmen’s Compensation Commission denied the claim under our decision in Miller Milling Co. v. Amyett, 240 Ark. 756, 402 S. W. 2d 659. Turner appealed to the Bradley County Circuit Court where our decision in Prince Poultry Co. v. Stevens, 235 Ark. 1034, 363 S. W. 2d 929, was considered as controlling, and the order of the Commission denying Turner’s claim was reversed. On appeal to this court, the employer and his insurance carrier rely on the following point for reversal :

“Appellee is barred from seeking Workmen’s Compensation benefits because of his failure to comply with the requirements of Arkansas Statutes 81-1313 (E).”

The appellee is not barred from seeking compensation benefits because of Ms failure to comply with the requirements of the statute, but we agree with the Commission that this case is controlled by our decision in Miller, supra, and that Turner failed to show that the physical distress following the occurrence of the hernia was such as to cause him to cease work immediately and to require medical attention within forty-eight hours.

Turner was employed by Haygood as a log cutter. About February 8, 1968, while he was cutting a log with a power chain saw, the saw bar became stuck in the log and when Turner “snatched” it loose, the saw “kicked back” and the handle of the saw struck Turner in the lower right side of the abdomen. The evidence of record would have sustained a finding that the first, second and fourth requirements of § 81-1313 (e), supra, were met. As to the third and fifth requirements, however, Turner testified:

“A. ... I had to sit down a little while.
Q. Did it make you sick?
A. Yes, sir, I was pretty sick for awhile.
Q. Did you stop working then?
A. Yes, sir.
Q. And sit down?
A. Yes, sir, and I sat down around thirty minutes. Seems like it got a little bit easy, and I got back up and started again.
# # *
Q. I wish you would tell the referee, please, how you got along after that saw hit you in the stomach. Did you continue to get worse or better or what happened?
A. No, it just continued to get worser all the time, kept getting sorer and the knot getting bigger and bigger, until it got to where I had to go on to the doctor.
Q. Did you keep on working during most of the days during this time?
A. Yes, sir, I worked most of them.
* * #
Q. Now, didn’t Mr. Haygood tell you ybu could go see a doctor if you wanted to?
A. Yes, sir, I think he did, hut what, I mean, I didn’t think I was hurt quite as bad as I was right at the time.
Q. Then, you continued to work fairly regularly?
A. Yes, sir.
Q. Until you had to go see Doctor Miles on August the Seventh?
A. Yes, sir.
Q. He says that is the first day he saw you. Is that right?
A. Yes, sir.”

Turner’s foreman, Mr. Haygood, testified as follows :

“Q. Do you recall him [Turner] reporting the incident to you?
A. Yes, sir.
Q. What did you tell him?
A. I told him that he could see the doctor or take off or whatever he wanted to do.
Q. And I believe he indicated that he rested maybe thirty minutes or so and, then, went on working?
A. Yes, sir.
Q. And did he continue to work on up into August until he was hospitalized for this surgery? 51
A. Yes, sir.
Q. He indicated he may have missed some days. Do you recall?
A. I am not exactly — He might have lost a day or two.
Q. But he was working pretty regularly for you?
A. Yes, sir.
Q. Do you recall, Mr. Haygood, whether Mr.— whether John Willie kept on. complaining about this at times during, well, up to August the Seventh?
A. Oh, very little to me, if any.
<J. He did tell you, though, the same day that it happened?
A. Yes, sir.
Q. What did he tell you about it?
A. He just told me he had got hit in the side with the saw, and I asked him if he wanted to go to the doctor or set down or do whatever he wanted to do, take it easy, and he said he thought he could make it.
Q. And he did go ahead and work the rest of the day?
A. Yeah.”

Dr. Dallas D. Miles, under date of September 27, 1968, reported as follows:

“John Willie Turner consulted me in my office on August 7, 1968, concerning knot in right inguinal region with associated pain. Examination revealed right inguinal hernia. Patient stated he had suffered a blow by a power saw while on his job (unknown exact date) at which time he reported it to his foreman, but symptoms did not warrant his seeking medical advice. However, on August 2, 1968, pain in involved area became worse.”

It is true that Turner testified that his condition kept getting worse, “kept getting sorer and the knot getting bigger and bigger” until he had to go to a physician. This occurred over a period of six months from February 8, 1968, to August 7, 1968, rather than forty-eight hours as required by statute; and during all this period of time, with the exception of one or two days, Turner continued his regular work at cutting logs without requiring the attendance of a licensed physician.

This court reached opposite conclusions in the Prince and Miller cases but those cases were distinguished on their facts, as is the case at bar. We sustained an award in Prince but reversed an award in Miller, wherein we distinguish Prince in the following language :

“We are unable to say that the Prince case can be extended to reach the fact situation here. There the workman was injured on Thursday, but at his employer’s request he worked on Friday and Saturday despite the fact that he was in pain. He tried to call a doctor on Friday but failed to reach him. On Monday the claimant finally saw a physician, who found an inguinal hernia. In sustaining the award we were of the opinion that the facts justified the Commission in excusing the claimant’s failure to consult a doctor until about two days after the expiration of the time allowed by the statute. We followed a very similar Mississippi case, where the court reasoned that for an injury ‘to require’ a physician’s attendance within a certain number of days does not invariably mean that the physician must actually be consulted within that time. A substantial compliance may be sufficient.”

In Miller the claimant was picking up a heavy sack of feed on March 6, when he felt a sharp pain in his side. He rested for twenty or thirty minutes and then felt well enough to resume comparatively light tasks. He reported his injury to his employer and intended to consult a physician but put off doing so. He continued to work, avoiding heavy lifting, until early in July when he was forced to consult a physician who diagnosed and repaired an inguinal hernia. The Commission awarded compensation benefits and the circuit court affirmed the award. In reversing the circuit court judgment, we said:

“The appellee’s position really narrows down to the contention that since he suffered severe pain on March 6 his condition therefore ‘required’ the attendance of a physician within forty-eight hours. The fallacy in this argument lies in its disregard of the fact that severe pain must exist in every instance of a compensable hernia, for that condition is the second of the five statutory requirements. Hence, if the appellee is right, the fifth requirement — that the attendance of a physician be required within forty-eight hours — adds nothing whatever to the earlier statement that severe pain must occur. We are not at liberty to give absolutely no meaning and effect to the plain language of the statute. We must conclude that the requirement of immediate medical attention was not sufficiently established in this case.”

Three of the five requirements under the statute relating to claims for hernia have to do with pain. The plain wording of the statute practically eliminates subjective symptoms in claims for hernia. Not only must the claimant prove severe pain in the hernial region, he must prove that the severe pain caused him to quit work immediately. Not only must he show that the pain caused him to quit work immediately; he must also show that the physical distress was such as to require the attendance of a physician within forty-eight hours.

It might be logically argued that this statute penalizes an industrious employee who is willing to bear some pain and continue working as Turner apparently did in this case. It might also be argued that small and undramatic herniation was never intended to be covered by the Workmen’s Compensation Act. But, in any event, it cannot logically be argued that this court has the authority to completely nullify, by liberal interpretation, any provision of a constitutional legislative act.

We conclude that the judgment of the trial court must be reversed and the order of the Commission, dismissing the claim, reinstated.

Reversed.


author: Conley Byrd, Justice.

text:
    Harrigan E. WORTSMITH et ux v. THE MATTHEWS CO.
    5-5033
    447 S. W. 2d 342
    Opinion delivered December 1, 1969

      Charles L. Carpenter, for appellants.

      Charles D. Matthews and Catlett & Henderson, for appellee.
   Conley Byrd, Justice.

Appellants Harrigan E. Wortsmith and Catherine Wortsmith are the owners of Lot 28, Block 52, Lakewood Addition to the City of North Little Rock. They brought this action against appellee, The Matthews Company, to enjoin a 1968 replat of Lots 9 through 12 of said Block allegedly for the violation of the restrictive covenants contained in a bill of assurance dated February 2, 1965. The trial court dismissed the complaint upon a motion for summary judgment. For reversal they rely upon the following points:

“A. Appellee did not have approval of owners of sufficient acreage to amend bill of assurance and plat in effect on Lots 9-12, Block 52, Lakewood, when appellants bought their property.
“B. Appellee offered no pleading or proof that change did not violate North Little Rock zoning code.
“C. Appellee offered no pleading or proof that conduct of appellee did not mislead and defraud appellants and other similar persons.”

The record shows that said Block 52 was not all platted at the same time. The portion containing Lot 28, being Lots 19 through 31, was platted and the bill of assurance in connection therewith was recorded on Sept. 9, 1963. The portion involving Lots 9 through 12 was platted and the bill of assurance was recorded on February 2, 1965. Appellants purchased their property subsequent to the filing of the February 2,1965, bill of assurance. The Matthews Company caused Lots 9 through 12 to be replatted in April 1968 to lay out an alley or private way across the back thereof. The rear of Lot 9 backs up to the rear of Lot 28.

The February 2, 1965, bill of assurance that appellants are attempting to enforce provides:

“KNOW ALL MEN BY THESE PRESENTS:
“That John Matthews Company, an Arkansas Corporation, hereinafter called grantor, owns the following described land lying in Pulaski County, Arkansas, to-wit: that part of the unplatted part of
swy4 OF NE% AND N% OF SEy4, SECTION 24, TOWNSHIP 2 NORTH, RANGE 12 WEST, AND LOT 11, BLOCK 52, LAKEWOOD, PULASKI COUNTY, ARKANSAS
shown on the plat attached hereto and made a part hereof as LOTS 9 TO 13, INCLUSIVE (LOT 9 BEING A REPLAT OF THE LOT PREVIOUSLY PLATTED AS LOT 11), BLOCK 52, LAKEWOOD
and the grantor hereby plats same as
LOTS 9, 10, 11, 12 AND 13, BLOCK 52, LAKEWOOD, PULASKI COUNTY, ARKANSAS
and henceforth description and conveyance by such designation or part thereof as shown and represented on said attached plat shall be a proper and sufficient description thereof.
# # *
“Said land herein platted and any interest therein shall be held and owned subject to and in conformity with the following covenants which, subject to being amended or canceled as provided hereinafter, shall be and remain in fuii force and effect until January 1, 1999, to-wit:
(a) LAND USE AND BUILDING TYPE. Said land shall be restricted to detached single-family residence; garage, servants’ quarters, and other outbuildings must be clearly incidental to residential use of said land. Boarding houses, tenements, apartment houses, trailer parks, tourist courts, motels, hotels, eating houses, clubs, restaurants, stores, beauty shops, barber shops, commercial servicing and repairing of every kind, other similar activities and each of them are prohibited and shall not be carried on or permitted on any part of said land. The designation of such specific activities prohibited shall not limit what is prohibited on said land but this restriction shall be construed to prohibit on said land each and every business, trade, activity, and undertaking not in keeping with the general plan to develop said land for the highest class residential occupancy. No business, trade, activity, or undertaking which is or may become noxious or offensive shall be carried on or permitted on any part of said land nor shall anything be done thereon which may be or become an annoyance or nuisance to adjacent residents or the neighborhood. Usage in keeping with the highest class residential occupancy such as the office of a doctor, a writer, or an artist shall he permitted if carried on without becoming an annoyance or nuisance to adjacent residents or the neighborhood and provided one name plate only, not exceeding one square foot in area, may be placed or permitted to remain on any home-site.
(b) PLOT AREA AND WIDTH. No residence shall be erected, altered, or permitted to remain on any part of said land or on part of said land and adjacent land if the area of the plot of ground for and used with such residence is less than 7,000 square feet or if the width thereof at the front building line is less than 65 feet.
(c) TEMPORARY STRUCTURES. No trailer, basement, tent, shack, garage, garage apartment, hutment, barn, structure of a temporary character, or outbuilding of any kind on said land shall at any time be used or occupied as a residence temporarily or permanently, provided the foregoing shall not be construed to prevent occupancy of servants’ quarters by bona fide domestic servants employed by and domiciled on said land with an owner or tenant.
(d) ARCHITECTURAL CONTROL. No building, wall, or fence shall be erected or placed on said land until complete building plans, specifications, and plot plan showing the location thereof with respect to existing topography and finished ground elevations have been approved in writing by said John Matthews Company, its successors or assigns. It is contemplated that said John Matthews Company, in its discretion, may eventually designate and authorize the Property Owners’ Association or incorporated town or city of the area involved to make such approval but until and unless said John Matthews Company, its successors or assigns, transfers this authority, then it, the said John Matthews Company, shall have complete authority with respect to such approval. It is the purpose and intent of this covenant that, in order to assure all home owners the safeguard of a reasonable degree of neighborhood conformity and harmony, the quality, design, and location of all residences be regulated as provided hereinbefore. In the event said John Matthews Company, its successors or assigns, fails to approve or disapprove any such plan and specifications within 30 days after submission to it or, in any event, if no suit to enjoin the erection or placing of such residence has been commenced prior to the completion thereof, such approval will not be required and this covenant will then be deemed to be fully complied with. There shall be no compensation to said John Matthews Company, its successors or assigns, for services performed pursuant to this covenant.
(e) SIGNS OE UNSIGHTLY OBJECTS. No billboard, poster, sign, or object of unsightly nature shall be placed or permitted to remain on any part of said land, except a name plate not exceeding one square foot in area as provided in paragraph (a) hereof and except one sign only per lot not exceeding four square feet in area may be displayed to advertise property for sale or rent.
Each and all of the restrictions set forth herein shall be binding as covenants on present and future owners, their heirs, successors, and assigns, shall run with the land, and may be enforced by any person or corporation owning land in the area described as follows:
Platted or unplatted lands in the over-all area described in a Dedication setting up a proposed Property Owners’ Association, appearing of record in the office of the Eecorder, Pulaski County, Ar-Kansas in Deed Record Book 362, Page 425, AND E% OF SW14 AND Wy2 OF SE % AND SEy OF SE1/4, SECTION 13, TOWNSHIP 2 NORTH, RANGE 12 WEST AND Wy2 OF NWy4, SECTION 19, TOWNSHIP 2 NORTH, RANGE 11 WEST, PULASKI COUNTY, ARKANSAS, but no person or corporation shall be liable for breaches committed except during his or its ownership. Any and all of the covenants set forth in this instrument may be amended, modified, extended, changed, or canceled in whole or in part by a written instrument signed and acknowledged by the owners of over 50% in-area of the land last hereinbefore described and the provisions of such instrument so executed shall be binding beginning with and after the date it is duly filed for record in Pulaski County, Arkansas.” [Emphasis ours].
Appellants’ allegation, as abstracted, is:
“. . . that at the time the property was acquired by Appellants, and at the time Appellee surrendered title to Lot 28, all of the Bills of Assurance covering all the pertinent parts of Block 52 prohibited any activity or undertaking that could become noxious or offensive and that nothing could be done on said land that could become an annoyance to the adjacent property owners; that at the time Appellants acquired Lot 28 it was contiguous to Lot 9 and the Bills of Assurance on file made it clear that there could be no public way running between Lots 25-28 on the East side of Block 52 and Lots 9-12 on the West Side; that the lots on the East side of Block 52 were set up to have a rear yard privacy typical of the higher class residential area; that Appellants constructed their home to take full advantage of this rear yard privacy; that the Bills of Assurance insuring this rear yard privacy, and upon which Appellants relied, were on file on all of Block 52 at the time Appellants acquired their property; such Bills of Assurance had been approved by the North Little Rock Planning Commission; that this protection from annoyance and nuisance was designed by Appellee for the purpose of, and did command, a premium price on said lots.”

Point A: Appellants developed by interrogatories that the lands as shown by the dedication setting up a proposed property owners association in Deed Record Book 362, page 425, contained 800 acres plus. To this they add the. 200 acres described as being in Sections 13 and 19 supra, to arrive at a total of 1,000 acres plus that covered by the last quoted paragraph of the bill of assurance. The interrogatories further developed that appellee only owned 357 acres of the 1,000 acres so described. Upon these premises appellants argue that appellee did not own more than 50% of the “land last hereinbefore described” as set forth in the bill of assurance for purposes of amending the same.

Appellee on the other hand submitted an affidavit that it owned more than half of the Lots numbered from 9 through 13 inclusive of Block 52. Based upon this it contends that pursuant to the language of the bill of assurance that the “the land last hereinbefore described” referred to Lots 9, 10, 11, 12, and 13 of Block 52 and that by virtue thereof they were entitled to amend the bill of assurance.

Even should appellants be correct in their interpretation of the ownership required to modify the covenants contained in the bill of assurance, the trial court here properly dismissed their complaint because a re-plat, such as here involved, is not prohibited by the covenants set forth in the bill of assurance.

With Points “B” and “C”, we find no merit. The complaint as abstracted contains no allegations that appellee failed to comply with the North Little Rock zoning code or that appellee’s conduct in filing the bills of assurance constituted a fraud upon appellants and other persons similarly situated. A party seeking to set aside a decree of the trial court has the burden of showing that such issue was before the trial court. This appellants failed to do in accordance with our rules.

Affirmed.


author: Frank Holt, Justice.

text:
    Crawford RYALL et al v. WATERWORKS IMPROVEMENT DIST. NO. 3 et al
    5-5060
    447 S. W. 2d 341
    Opinion delivered December 1, 1969

      Brockman & Brockman, for appellants.

      Odell G. Garter, for appellees.
   Frank Holt, Justice.

This appeal comes from the chancellor’s order which the appellants assert dismissed their petition for a permanent injunction against appellee Waterworks Improvement District No. 3.

The appellants filed a complaint seeking to enjoin the improvement district and its commissioners from proceeding with the construction and installation of a sewage treatment plant near the town of Star City. Appellants sought a temporary injunction and .asked that upon a final hearing a permanent injunction be issued together with an award for damages in the sum of $10,-000 against the district and its commissioners individually. After a hearing the chancellor refused to grant appellants’ requested temporary injunction and an appeal was taken from that decision. We affirmed on the basis that no facts were presented which established that the incompleted plant constituted or would constitute a nuisance and the fear that the sewage plant might adversely affect the value of appellants’ lands was not a sufficient ground for obtaining a temporary injunction. Ryall et al v. Waterworks Improvement Dist. No. 3 et al, 247 Ark. 431, 445 S. W. 2d 883. There we said:

“Also, the court commented that the hearing was only for purposes of determining whether a temporary injunction should be granted, and that, if the proof were sufficiently developed to warrant injunctive relief, a permanent injunction could be granted after the final hearing.”

Pending the appeal from the denial of the temporary injunction, the improvement district filed two motions. One motion alleged that the district’s work or construction of the sewage plant was not subject to an injunction, citing Ark. Stat. Ann. § 20-314 (Repl. 1968), and, therefore, appellants’ complaint should be dismissed and “that if plaintiffs [.appellants] have any damages, which is specifically denied, they must bring their action in a court of law * * In the other motion the commissioners, relying upon Ark. Stat. Ann. § 20-313, asserted they had no individual liability for actions in good faith as commissioners. Appellants filed a response to each motion. Subsequent to a hearing, the chancellor rendered a separate order dismissing appellants ’ complaint insofar as it seeks a judgment against the commissioners individually. In another order the court transferred the action for damages against the appellee district to circuit court. From the latter order comes this appeal.

In their original brief appellants assert only one point for reversal: “The Court erred in dismissing plaintiffs’ [appellants] prayer for injunctive relief on the basis of Ark. Stat. Ann. § 20-314 (Repl. 1968).” Appellants contend that “the injunctive relief sought by plaintiffs-appellants was in effect dismissed.” (Emphasis added) We do not construe the order of the chancellor as a dismissal of appellants ’ request for a permanent injunction. The order entered by the chancellor, in pertinent part, reads:

“That the complaint seeks money damages in addition to injunctive relief, and since money damages is sought, by the plaintiffs [appellants] that the motion should he treated as a motion to transfer to the court of law in order that a determination may be made on the question of damages. ¶ It is therefore considered, ordered, adjudged and decreed that so much of the hereinabove suit as pertains to Waterworks Improvement District Number 3, which seeks money damages, is hereby transferred to the Circuit Court of Lincoln County, Arkansas.” (Emphasis added)

The plain and unambiguous wording of the order is that the chancellor only granted the district’s motion to dismiss insofar as it relates to the forum for appellants’ action for money damages. We are of the view that appellants’ request for a permanent injunction is still pending before the chancellor and appellants’ present appeal is premature.

Further, appellants submit that the chancellor erred in transferring the issue of damages to circuit court, citing Evans v. Pettus, 112 Ark. 572, 166 S. W. 955 (1914) and St. Paul Mercury Indemnity Co. v. City of Hughes, 231 Ark. 530, 331 S. W. 2d 106 (1960). However, this argument was first presented in appellants’ reply brief and, therefore, we do not reach it. We do not consider an asserted error first proposed in the reply brief because, in that event, the appellee has no opportunity to reply. Groves v. Keene, 105 Ark. 40, 150 S. W. 575 (1912); O’Dell v. Young, 210 Ark. 1073, 199 S. W. 2d 971 (1947); Nelson et al v. Busby et al; 246 Ark. 247, 437 S. W. 2d 799 (1969).

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Mackie L. TAYLOR and Vernie Taylor
    5-5048
    447 S. W. 2d 646
    Opinion delivered December 8, 1969

      Thomas B. Keys and George O. Green, for appellant.

      Gordon, Gordon & Eddy, for appellees.
   Carleton Harris, Chief Justice.

This is a highway condemnation case. The Arkansas State Highway Commission, appellant herein, instituted an eminent domain action against Mackie L. Taylor, and his wife, Vemie Taylor, for the acquisition of lands needed for the construction of Interstate 40 and its facilities in Conway County. The property condemned consisted of 2.75 acres taken from a 3.1 acre parcel. The property had frontage of 343 feet on Highway 9, and a depth of 390 feet. The property remaining consisted of approximately one-third of an acre in a triangular shape, the condemnation taking all access to this area, and for all practical purposes leaving this last property landlocked. On trial, Mr. Taylor testified that his damages were $27,975.00.

Lloyd Pearce, an expert appraisal witness on behalf of appellees, testified to damages of $19,100.00, and Mr. Charles Lewis Ormond, also an expert appraiser for appellees, testified that the damages amounted to $23,-950.00. The jury returned a verdict of $23,500.00, and from the judgment so entered, appellant brings this appeal. For reversal, it is urged that the trial court erred in refusing to strike the value testimony of Mr. Taylor, and also erred in refusing to strike the value testimony of Mr. Pearce.

The commission recognizes that Mr. Taylor, as an owner of the land, was entitled to give his opinion of the value thereof. It points out, however, citing Arkansas State Highway Commission v. Darr, 246 Ark. 201, S. W. 2d 463, that an owner’s conclusion as to damages must be satisfactorily explained; if not, the testimony does not constitute substantial evidence. It might be well at the outset to point out that Mrs. Darr’s testimony in that case, and Mr. Taylor’s testimony in the instant litigation, can hardly be compared. In Darr, we mentioned that it was not disclosed when she resided on the land, if ever; that she was never asked if she had an opinion as to the fair market value of the property, but was merely asked the worth of the land; that it was apparent that she had a sentimental attachment for the farm, because her husband had told her to keep it, and further, she showed no reasonable knowledge of market values of lands in the community. Here, Mr. Taylor bought the property in 1957, finished a house that was being constructed, and lived on the property for more than 10 years. He appeared to be familiar with the location of the highways, utilities, easements, and city limits, with reference to the property and the surrounding area. All improvements were taken by the commission; in fact, as already pointed out, everything was taken except the approximate .3 of an acre, which was valued at $25 by Taylor, and $50 by Pearce, Ormond, and the appraisers for the state. The Taylor home was a one-story building, 28 x 38 feet, with five rooms, modern bathroom, and hot water heater in the bath. There was a septic tank, and a deep well with a pump in it, a glass screened-in porch and a picture window in the front of the house. There was quite a bit of shrubbery on the premises. A trade school was located about % of a mile from the home. Admittedly, two sales that he mentioned were much lower than the value he placed on his own lands, but he endeavored to show that the condemned property- had advantages not found with the land that had been sold. Appellant’s principal argument for striking the value testimony relates to the assertion that Taylor considered offers that had been made to him to purchase his land, or parts of it, in reaching his conclusions. On direct examination, appellee was asked if his opinion was based on what other land was selling for, and offers he had had for it, and the witness stated that both his before the taking value and after the taking value were based on what other property was selling for. However, the commission moved to strike his value testimony previously because he had said that he considered offers that had been made to him. The court denied this motion, but told the jury:

“Ladies and gentlemen of the jury, this witness has testified with reference to offers that people had made him regarding his property. You are now told by the Court that an offer for this property is not proper and should not be considered by you at all.”

Appellee contended that the testimony was .admissible as a means of showing that the property was desirable, though he agreed that the amount of any offer could not be given. Appellant relies upon Arkansas State Highway v. Elliott, 234 Ark. 619, 353 S. W. 2d 526, and Arkansas State Highway Commission v. Jackson County Gin Company, 236 Ark. 761, 376 S. W. 2d 553. In these two cases the amounts of the offers were given by the witnesses. In Elliott, a witness was brought into court by Mrs. Elliott, this witness testifying that he had offered to purchase the condemned property for $5,-000.00, and a letter written sometime before (the filing of the suit) from the witness to Mrs. Elliott, was offered in evidence. The letter advised that he would pay her $5,000.00. We held that this was not admissible, and reversed the judgment. In the Jackson County Gin Company case, there was testimony that the sales price of certain property between individuals had been reduced by $10,000.00, because the highway department had filed a condemnation action. In the case before us, no figure was ever mentioned, but there is no need to discuss appellee’s contention, since the court very plainly told the jury that it should not consider this testimony. There was no error in refusing to strike the evidence of appellee Taylor.

As to the second point, we .also disagree with appellant that the value testimony of Lloyd Pearce should be stricken. This contention is based on the fact that Mr. Pearce gave this particular property .a much higher value per acre than the sale price obtained per acre for the comparable sales mentioned by the witness. Pearce said that the highest and best use of the north 100 feet of the Taylor property, where the home was located, was for a rural homesite, and that the best use for the south 243 feet was for commercial property. The latter portion is right across the highway from property that is zoned for commercial use. He agreed with other witnesses that the landlocked triangle, heretofore mentioned, was practically worthless, valuing it at $50.00. In using comparable sales, Pearce stated that he considered several factors, such as location, the availability of utilities for servicing the property, access to and from the area, access to the city of Morrilton, proximity to schools and churches, and the topography of the lands. It is true that he gave a higher value to the Taylor property, both for residential and commercial use, than had been received by the seller in the comparable sales used, but the witness explained his reasons for doing so, which were based upon the factors just mentioned. For instance, one sale used in comparison of residential use, was on a gravel road; another had frontage on Highway 9, but there was a large capital outlay expended in order to bring utilities to the property. Another sale made in the same vicinity did not have water and sewer available. According to the evidence, sewer and water were less than a half mile from the Taylor property. Pearce said that one of the factors affecting the value of property around Morrilton is that the land is tightly and closely held; that there is not a lot of property for sale in the area. He explained that the city is expanding to the north, expansion to the south being limited by the Arkansas River, and expansion to the west being limited by Point Remove Creek and overflow lands in the general area. Expansion of Morrilton would therefore normally take place to the north .and the east. As to topography, the land is level, cleared, and could be easily developed. Both of the appraisers for the state gave the highest and best use of all the property as residential, although Mr. J. C. Merritt admitted that property across the highway (west of the Taylor property) was zoned commercial.

It must he remembered that, though we have held that a non-expert witness must state the facts upon which his opinion is based before giving that opinion, there is no similar condition attached to the admissibility of an expert’s opinion, provided, of course, that the expert demonstrates his familiarity with the subject of his evidence. Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436. The very fact that the witness is an expert (and Pearce’s qualifications are not questioned) permits him to express an opinion, though the sales mentioned are not comparable in every respect to the property under discussion. The court did not err in refusing to strike the testimony of Pearce.

The testimony of appellees’ other expert witness, Charles Lewis Ormond, is not under attack, and it would accordingly have to be presumed that there was no question as to the basis used for the before and after values given by this witness. The appraisal of Ormond was considerably higher than that of Pearce; in fact, it would really appear that the jury was more impressed by this witness than any other, since the verdict arrived at was much nearer to the figure given by Ormond than the figure given by either Taylor or Pearce. Ormond, who according to his evidence, sold an average of two pieces of property .a month in and around Morrilton, testified that there was a good demand for property of the Taylor type, and he was definitely of the opinion that this land could have a greater demand as commercial property, rather than for any other use. Not a single objection was made to any part of Ormond’s testimony.

Finding no reversible error, the judgment is affirmed.

It is so ordered.

      From the cross examination of Merritt:
      “Q. I am talking about the Leavels to Leisure Lodge in 1962,i with frontage on Highway 9, $10,000.00 for an acre and a quarter, approximately $8,000.00 an acre in 1962.
      A. I believe you will find that in a more dense built up residential and commercial area than subject property. I do have market data on that, yes, sir, but just because it is the same distance from Morrilton as subject property is—
      Q. You didn’t consider that at all in trying to fix the fair market value of this property?
      A. I considered it to be very excessive to the value of this property. To me it is ridiculous to try to use that sale. First of all, I think it is a different highest and best use.
      Q. Where is the cotton gin?
      A. Pardon?
      Q. You say this is a more desirable location where the cotton gin is located with reference to the Leavels property that sold to Leisure Lodge?
      A. It is in that area.
      Q. Isn’t there a little grocery store across the street from the property?
      A. Yes, sir.
      Q. Isn’t there a drive-in theater next to it?
      A. If you are speaking of that sale — This is in a built up commercial and residential area, and consequently would have much greater value.
      Q. Isn’t the area across the highway from the Taylor property commercial?
      A. There will be. There has been special purpose back from the highway.
      Q. I am talking about the west of the Taylor property at the Hawkins addition. Isn’t that zoned commercial?
      A. I understand it is, since the highway was put there.
      Q. Wasn’t it zoned commercial prior to that time?
      A. Yes. People have a little forethought and look to the future.”


author: G-eobge Rose Smith, Justice.

text:
    W. H. ROUNSAVILLE v. VAN ZANDT REALTORS, INC., and R. J. Nash Company, Inc.
    5-5091
    447 S. W. 2d 655
    Opinion delivered December 8, 1969

      Hardin, Barton, Jesson & Dawson, for appellant.

      Shaw & Bedwell, for appellees.
   G-eobge Rose Smith, Justice.

The controlling question is whether the plaintiff-appellant Rounsaville’s offer to buy a piece of commercial property from the appellee R. J. Nash Company was so unconditionally accepted by Nash as to have resulted in an enforceable contact. The chancery court, to which the case was transferred, entered a decree upholding the contract and requiring Rounsaville either to complete the purchase or to forfeit the $2,500 in earnest money which he seeks to recover from the seller.

No essential fact is in dispute. On April 1, 1968, Rounsaville, who was occupying the building in question along with another tenant, delivered to Van Zandt Realtors a written offer to buy the property for $50,000. Rounsaville inserted three conditions in the offer-and-acceptance form: (1) The building to be treated for termites; (2) the roof to be repaired to stop leaks; and (3) the offer to be binding on Rounsaville only if accepted within one day. Rounsaville deposited $2,500 earnest money with Van Zandt.

On the same afternoon Van Zandt submitted the Rounsaville offer to the seller’s agent, Virgil Bracken. Tommy Van Zandt testified without dispute that Bracken said that “he wouldn’t want to just sign a blank check” for the termite work and roof repairs. Hence Van Zandt and Bracken wrote into the contract a $100 maximum limitation upon each of those items. They also inserted a condition that the sale would be subject to existing leases and a statement that the seller would pay a real estate commission of $3,000.

About a week or ten days later Van Zandt told Rounsaville about the changes in the contract. Rounsaville at once said that the limitations were not according to his agreement and that he would just forget about the whole deal. Rounsaville has steadfastly adhered to that position ; there is not even a hint that he has ever agreed to the changes in the contract.

Despite Rounsaville’s firm rejection of the agreement, Van Zandt and Nash went ahead, between that rejection and the recited closing date of July 1, with the performance of the original conditions. The building was termite treated at a cost of $231, and a new roof— which was needed anyway — was put on at a cost of $705. Both Tommy Van Zandt and Virgil Bracken testified at the trial that their undisclosed agreement between themselves was that the two $100 limitations were solely for Nash’s protection and that if the actual cost of the work exceeded the limitations the excess would be paid by Van Zandt from the $3,000 commission. It also turned out that the existing lease held by the other tenant in the building was allowed to expire without renewal before the proposed closing date; so the seller’s added condition that the sale be subject to existing leases would not have proved to be detrimental to the purchaser.

The chancellor was in error in holding that Rounsaville cannot be heard to complain about Nash’s changes in the agreement, merely because they eventually proved to be of little practical consequence. Rounsaville’s offer allowed but one day for acceptance. An acceptance, to be effective, must be identical with the offer. The introduction of new terms doubtless indicates a willingness to negotiate further, but such a response is a counteroffer that must in turn be accepted by the other party. Smith v. School District No. 89, 187 Ark. 405, 59 S. W. 2d 1022 (1933). That final step was lacking here.

Rounsaville, one day after the submission of his offer, certainly did not have an enforceable contract that was acceptable to him. His insistence upon termite treatment and roof repair had been diluted by limitations that materially changed the terms of the offer. Had the work proved defective he would have had no recourse against Nash. Moreover, it lay within the seller’s power to lease at least part of the building to another tenant upon terms perhaps wholly repugnant to the purchaser. The law wisely holds that business transactions should not be subject to such uncertainties. Rounsaville, as a prospective purchaser, was entitled to a yes-or-no answer upon his own terms- He should not have been compelled to submit to a delay of days, of weeks, or even of months, while the seller determined in the light of later events whether the proposed sale would eventually prove to be one that it was willing to make.

Reversed and remanded for the entry of a decree restoring the earnest money to Rounsaville, with interest and costs in both courts.


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    Jimmy SPIVEY and Freddie C. PAYNE v. The STATE of Arkansas
    5445
    447 S. W. 2d 846
    Opinion delivered December 8, 1969
    [Rehearing denied January 12, 1970.]

      W. B. Hotvard and Jack Begars, for .appellants.

      Joe Purcell, Attorney General; Don Langston and Mike Wilson, Asst. Attys. Gen., for appellee.
   Lyle Brown, Justice.

Jimmy Spivey and Freddie C. Payne appeal from a conviction on two counts of burglary and grand larceny. In the first burglary they were charged with taking a television set and a rifle; in the second charge they allegedly took an adding machine and a rifle. On appeal they attack the testimony of two of the State’s witnesses as being incompetent and prejudicial. The only evidence abstracted is the testimony of those two witnesses, W. V. Vincent and Sarah Kay Meredith.

The Testimony of W. V. Vincent. He attended an auction sale at which the defendants were present; Spivey turned in an adding machine to he auctioned off and the witness bought it; Spivey inquired of Vincent if he ever bought guns, to which Vincent replied in the affirmative; subsequently Spivey made a date by telephone with Vincent; and at the appointed time Spivey brought a pistol and seven rifles to Vincent’s home. At that point in Vincent’s testimony this colloquy occurred:

Mr. McCourtney: If the court please, we want to object to this line of questioning and .answers about these guns, unless it can be shown that they are guns connected with the burglaries of Mr. Ball and Mr. Barnett, which are contained in these charges.
The Court: The objection is overruled.
Mr. McCourtney: Note our exception.
Prosecuting Attorney: You did buy the eight guns?
A. On Monday morning, yes, sir. I did buy the guns.
Q. Do you have the guns now?
A. No, sir.
Q. Were they taken by persons that identified them as their owner?
Mr. McCourtney: We object to that all.
Prosecuting Attorney: We withdraw the questions.
The Court: The jury will disregard it.

Appellants hinge their first point for reversal on that part of the record just cited. They contend that the court should not have permitted Vincent’s testimony with reference to his having purchased eight guns to be continued after the first objection; they say the clear import of the testimony is that all the guns were stolen. The effect of the testimony, say the appellants, was to connect them in the minds of the jury with other alleged offenses.

In addition to the abbreviated abstract we have searched the record and we .are unable to find where the State ever established that any of the guns involved in the Vincent transaction came from the homes of the prosecuting witnesses; in fact it is fairly clear that they came from other sources.

The line of questioning was for the .apparent purpose of establishing that the defendants, a short time after the alleged offenses, had in their possession a quantity of guns thought to have been stolen from persons other than the prosecuting witnesses. Since counsel for the defendants specifically and timely objected to the line of questions .and saved exceptions, we are concerned with whether the testimony was admissible. The guns sold to Vincent had no connection with the larceny charges under prosecution. Proof of their possession was not relevant to show intent. If the defendants entered the homes of the prosecuting witnesses and took property therefrom, no further enlightenment on intent was necessary. Searcy v. State, 245 Ark. 159, 431 S. W. 2d 477 (1968); Alford v. State, 223 Ark. 330, 266 S. W. 2d 804 (1954).

True it is that after the second objection the prosecuting attorney withdrew the questions and the trial judge told the jury to “disregard it.” But the damage was already done. If the trial court had sustained the first objection the jury would never have heard the prejudicial testimony we have recounted.

The Testimony of Sarah Kay Meredith. The alleged burglaries occurred in two rural communities near McCrory. In his defense Freddie Payne testified that he had never been in the McCrory area except on one occasion when he was driving nonstop to Hot Springs. To rebut that testimony the State produced Sarah Kay Meredith. She worked at a cafe in McCrory and identified Payne as having patronized the cafe one day late in February or early March. (The burglaries were committed on February 27.) On direct examination she testified that the sheriff came to see her about one week after Payne was in the cafe; that he brought some pictures and she identified one as being that of Payne.

We do not agree with appellants that Sarah Kay Meredith’s extrajudicial identification was inadmissible. There are three cases which we think hold contrary to appellants ’ contention:

Birones v. State, 105 Ark. 82, 150 S. W. 416 (1912). Pursuant to a plan of the officers, the prosecuting witness went to the police station a few days after the offense; Birones was brought into the room and she recognized him. The testimony of the prosecuting witness to that effect on direct examination was upheld. “It was entirely competent for her to state how often she had seen the defendant before and after the commission of the crime, and whether she recognized him or not.” This court specifically pointed out that the ruling did not conflict with Warren v. State, 103 Ark. 165, 146 S. W. 477 (1912);

French v. State, 231 Ark. 677, 331 S. W. 2d 863 (1960). The prosecuting witness testified for the State in chief that he went to the police station some ten days after the crime and identified French in a lineup. The defendant objected to the witness being asked if he identified the defendant and to the affirmative answer. We said it was proper to state when and where he identified the defendant;

Bishop v. State, 236 Ark. 12, 364 S. W. 2d 676 (1963). The day following the alleged rape the prosecuting witness went to the jail and identified the defendant. Her testimony on direct examination to that effect was approved.

Among the five cases cited-'by appellants for rejection of the Meredith identification are three which, at first blush, appear to support their theory, particularly if emphasis is placed on some of the general pronouncements. Those cases ,are: Warren v. State, supra; Trimble & Williams v. State, 227 Ark. 867, 302 S. W. 2d 83 (1957); and Hicks v. State, 231 Ark. 52, 328 S. W. 2d 265 (1959). We think those holdings should be interpreted in light of the particular fact situations upon the reversals hinged. The Warren case was reversed because two officers were permitted to testify in chief that they saw the prosecuting witness identify Warren in a lineup. That same fact situation was the basis of the reversals in Trimble and in Hicks.

When courts are divided on an issue, .as they are in this instance, it is not difficult to find persuasive arguments on both sides. The division is reflected in an annotation in 71 A. L. R. 2d 449. Also, see Wharton’s Criminal Evidence, Vol. 1, 12 Ed., § 181.1 (Supp. 1969) Many safeguards are today in effect to protect the .accused in his due process rights pertaining to pretrial identification; cf. Simmons v. United States, 390 U. S. 377 (1968); United States v. Wade, 388 U. S. 218 (1967); and McClain v. Stale, 247 Ark. 33, 444 S. W. 2d 99 (1969). In light of those safeguards and the persuasive arguments supporting our own precedent we are unwilling to adopt a different rule than that which is supported by Birones, Bishop, and French. (We should mention in passing that the defendants here did not seek an in-chambers hearing .as was utilized in McClain v. State.)

For the error in admitting Vincent’s testimony relative to the eight guns, the case is reversed..

Byrd, J., concurs.


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    ARKANSAS STATE HIGHWAY COMM’N v. Theola McALISTER et al
    5-4990
    447 S. W. 2d 649
    Opinion delivered December 8, 1969

      Thomas R. Keys and Philip N. Gowen, for appellant.

      Gordon, Gordon & Eddy, for appellees.
   John A. Fogleman, Justice.

Appellant asks us to reverse a judgment in an eminent domain proceeding against appellees, asserting that the jury verdict for $6,500 compensation is excessive, because it is not supported' by substantial evidence. We find the evidence sufficient to support the judgment.

Appellant took 14.11 acres of land from a tract of approximately 271 acres owned by appellees near Morrilton. On August 3, 1967, the date of the taking, the tract was bisected by Highway 287, a gravel road. Approximately 160 acres of the property lay north of this highway. The tract taken was a strip 1,875 feet long and varied from 300 to 350 feet in width, severing the portion of the lands south of Highway 287. It was taken for construction of Interstate Highway No. 40, a controlled-access highway. The only access between the residual of approximately 40 acres north of the new right-of-way and about 57 acres south of the highway was a 6 x 6 concrete box culvert. The property lay about one-half mile east of Highway No. 9 and the city limits of Morrilton. It had approximately one-half mile of frontage on Highway 287. It was conceded by one of the state’s expert value witnesses that the use of the south 57 acres was somewhat limited after the highway went through and that the property does not have access along Highway 287 as it did before. He stated that while cattle could use the 6x6 culvert, it would not be practical to get machinery or vehicles through it. None of the value witnesses considered that the tract remaining north of Highway 287 was damaged. All of them considered that the tract south of that highway was damaged. They only differed as to land values before and after the taking.

Arletha Manley was the only one of the landowners called to testify. The property belonged to her, her mother and her brothers and sisters. She is a teacher in the Conway Public School System. Her family has owned the property as long as she can remember. Her mother, Theola McAlister, lives on the property. The family was using the property for growing corn, peanuts, potatoes, hay and as pasture. About 200 acres of the land, according to her, were devoted to pasture. She stated that there was a pond in the area that was taken which had constituted a watering place for their cattle. The cattle had been kept on the north side of Highway 287 in the daytime and on the south side at night. She testified that her mother milked five or six cows daily. She calculated that about 2% acres were required to support one cow on this property. She estimated the hay cut from the property each year at 400 to 500 bales. This witness stated that, in her opinion, the fair market value of the property on the date of the taking was $300 an acre. She did not state the value of the remaining property after the taking.

In an attempt to sustain its burden to demonstrate that this landowner’s opinion as to value was without substantial basis, appellant’s attorney only asked her whether she was familiar with any sales of land in this area around the farm, and whether she knew of any sales of farmland for $300 an acre. Her answer to the first inquiry was in the affirmative and to ¡the second in the negative. Her value testimony was not based upon comparable sales. Even if it bad been, the mere fact that she did not know of any sales of farmland at $300 an acre would not have demonstrated that she had no reasonable basis for her opinion. So, her testimony, at least as to the value of the lands taken must be considered as substantial evidence. See Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201.

Since the testimony of the landowner could support a verdict only slightly in excess of $4,200, the result in this ease depends upon whether the testimony of Lloyd Pearce, the only other witness for appellees, constituted substantial evidence. We find that it did.

Mr. Pearce is a real estate broker, consultant, and appraiser. The qualifications as a real estate appraiser he stated were unquestionably such as to require consideration of his testimony, if it was properly supported. He stated that before he made his appraisal he ascertained local conditions, checked on the location of utilities as they applied to the property, and ascertained economic features of the area. He also studied the Arkansas River Valley Study, the effects of navigation on the area surrounding the Arkansas River, and a number of sales of property throughout the county. He made a physical inspection of the property and its improvements. In making his appraisal, as elements that affected property values, he considered that lands in the area are closely and tightly held and that there has been an upward increase in land values in the particular area of this tract in the past five years. Among the factors he considered in appraising this property were the growth of the city of Morrilton, the roads serving the property, the surrounding neighborhood and community, the highest and best use for the land, supply and demand for lands in the area, physical improvements on the property and sales of other lands in the area.

Pearce found a six-room residence, barn and two storage sheds located on the part of the land south of Highway 287. Electricity was available. He stated that the highest and best use of the property was ‘ ‘. . . cattle raising, and with some potential for future urban development. It is in the line of the development of the City of Morrilton. There was an area along the road for homesites — rural homesites. As I say, the highest and best use is one of agricultural nature, with some potential for future development.” He investigated approximately 70 sales in the county, and said that he considered 12 in relation to the property.

One basis of appellant’s attack on the testimony of this witness is that the sales which he relied upon in ■arriving at his valuation figures were not of lands comparable to the McAlister property. Pearce placed a value of $250 per acre on the McAlister tract before the taking and a damage of $6,450, by reason of decrease of value attributable to the taking. On direct examination, he did not describe any of the sales relied upon by him. He detailed two on cross-examination.

One of the sales to which he referred was by one McAlister to Interstate Manufacturing Company in August, 1963. This was a 40-acre tract one mile west of the subject property and one-half mile north of the Morrilton city limits. It sold for $250 an acre in August of 1963 for future development. Access to that property was via the “Poor Farm Road.” He described the tract as fronting on a trail, 20 feet in width, maintained by the county, but not a dedicated road. The other sale about which he testified was from Oates to Stobaugh on March 1, 1966. That tract was 1% miles south of the subject property. It had frontage on a gravel road. It was closer to the city limits than the subject property. It contained about 40 acres, one-half of which was wooded and lay on a steep ridge. Pearce stated that this property could be expected to develop for urban use.

When further asked to give another sale he felt comparable, the witness said, “There is another sale — ” when he was interrupted by the cross-examiner. Later, on cross-examination, the following took place:

“Q. Mr. Pearce, I would still like for you to give another sale of this type of land at $250.00 an acre.
A. Would you accept one at $290.00 per acre?
Q. It depends on where it is and what it is .and its relation to the subject property.
A. This is approximately a mile south of the property.
Q. All right. That’s on the other side of Morrilton, right?
A. Yes, sir.
Q. I am asking about a sale comparable to the subject property. Do you mean to tell the jury you made an extensive study of the market and can’t give one sale that is comparable? The only sale that joins the property you state it is not comparable in your opinion, it doesn’t reflect market value?
A. That is the only sale I know of .adjacent to the property I would consider to represent market value.”

On redirect examination, Pearce stated that he considered sales other than those about which appellant’s attorney .asked him and other than those related on cross-examination. On recross-examination, no further inquiry about comparable sales was made of the witness. We are unable to say that it was demonstrated by appellant that Pearce relied only upon these two sales as a basis for his opinion. We are also unable to say that these two sales were not comparable as a matter of law. It was for the jury to determine the weight to be given to the testimony of this witness based on these sales. Mr. Pearce stated that land values throughout the area in question had increased 10 percent per year over the past five years. He stated that adjustments would have to be made, when a sale took -place several years in the past, not only for the trend in prices, but for the uses, size, topography, improvements, locations relative to the city, and supply and demand for lands in the area. He testified that some land within one-half mile of this property was selling for $1,000 and $1,200 per acre three years earlier. In considering comparability, we have recognized that because no two tracts are identical, the courts must allow reasonable latitude in evaluating sales. Arkansas State Highway Commission v. Clark, 247 Ark. 165, 444 S. W. 2d 702. We also said in Arkansas State Highway Commission v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309:

“There can be no fixed definition of similarity or comparability. Similarity does not mean identical, however it does require some reasonable resemblance. See Nichols, Eminent Domain, Yol. 5, § 21.31, p. 439. There are certain criteria of similarity which can be utilized to establish a reasonable resemblance. Important factors of similarity to be considered are location, size and sale price; condi-, tions surrounding the sale of the property, such as the date and character of the sale; business and residential advantages or disadvantages; unimproved, improved or developed land.”

Another attack made upon this witness’ testimony was his failure to take into consideration the sale of an 80-acre tract abutting the McAlister property for $125 per acre in March of 1967 and the sale of a 53-acre tract which lay immediately east of the subject property in April, 1964, for approximately $50 per acre.

The land lying south of the McAlister tract was sold by one Wallen John to Nash. Pearce explained that he did not consider this sale because he did not consider it to be an arm’s length transaction. He stated that the property had never been exposed for sale on the open market, that he understood that an incompetent was involved, and that the price was much less than what other lands had brought around the city of Morrilton. He also testified that he had talked to one person who had offered to purchase the property for more than it brought. In rebuttal to value testimony given by witnesses for appellant relying on this sale, Pearce pointed out that the land lay along a ridge extending from east to west with an elevation variation of 200 feet in approximately one-quarter of .a mile. He compared this variation to the height of a 20-story modern office building. In contrast, he said that there was only a 20 foot variation in elevation in the McAlister property. One of appellant’s witnesses stated that this tract did not have good access or highway frontage since it merely “point cornered” on Highway 287.

The 53-acre tract of land was sold by one Stover to Wingo. Pearce did not consider that sale because he stated that it was a landlocked parcel purchased by Wingo who owned adjoining lands through which he would have access to the property. Appellant’s expert appraiser confirmed the lack of highway access to this tract, except by traveling through the property involved here, or the property already owned by the purchaser Wingo. The reasonableness of the explanation of the witness for his failure to consider these sales was for determination by the jury in weighing his testimony. It does not render his testimony insubstantial as a matter of law.

Appellant also questions the amount of damages attributed by Pearce to the taking, saying that his appraisal amounted to $50 per acre while appellant’s witnesses testified that the damage to this portion amounted to only $25 per acre. Pearce considered the McAlister lands to be effectively severed, because of the lack of means of travel back and forth between the properties without considerable travel to Highway 9 to cross the Interstate Highway. He considered the box culvert useless as a cattle pass. He had seen futile efforts^ to drive cattle through such a culvert. He remarked on the fact that the 57-acre tract south of the Interstate Highway had been effectively cut off from the headquarters at the homesite, thus isolating the area in which the hay meadows were located. He also took into consideration the fact that the cattle watering area formerly fed by a creek had been destroyed by the taking. He stated that it would no longer be feasible to develop the property as a unit because of the severance of the 57 acres. What we said in Arkansas State Highway Commission v. Wahlgreen, 246 Ark. 472, 438 S. W. 2d 694, is appropriate here. We stated:

a* * # To tajj-g appellant’s view, it would be necessary that we arbitrarily decide from the printed record that appellees’ witnesses were wrong, and appellant’s witnesses were right. Such action would be contrary to our case law.”

Pearce’s opinion as to “before and after” values indicated a difference of $6,450 — $50 less than the jury verdict. Yet we find substantial evidence to support the verdict. Pearce’s valuation of the lands taken was $3,-550. His estimate of severance damages was $2,900. Aletha Manley valued the lands at $300 per acre before the taking.

We have long recognized that one approach to determination of just compensation is a formula consisting basically of two elements, i. e., (1) value of the lands taken and (2) damage resulting to the remainder of the tract, usually referred to as severance damages. Springfield and Memphis Railway Co. v. Rhea, 44 Ark. 258; Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S. W. 2d 575; Stuttgart and R. B. R. Co. v. Kocourek, 101 Ark. 47, 141 S. W. 511; Arkansas Power & Light Co. v. Mayo, 244 Ark. 435, 425 S. W. 2d 531; Clark County v. Mitchell, 223 Ark. 404, 266 S. W. 2d 831. We have said that in partial taking cases the testimony should be first directed to the value of the lands taken and then to the damage resulting to the remainder of the tract. Springfield and Memphis Railway v. Rhea, supra. We have recognized that evidence of the value of lands taken plus damages to the remainder is not only admissible but that these two elements are appropriately considered by many appraisers as guides for determining “before and after values.” Young v. Arkansas State Highway Commission, supra. In Young, we held that even though the court’s instructions to the jury required a verdict reflecting the difference between “before and after values” rather than value of the lands taken plus severance damages, the landowner might present to the jury a resume" of testimony relating to one of the elements, which, in that case, was severance damages. Certainly, it could only have been anticipated that the jury might take the same approach. In so doing, they are accorded great latitude in the consideration of testimony and are not restricted to values of, or estimates of damage to, real estate fixed by the opinion of one or more witnesses. Griffin v. Searcy County, 150 Ark. 423, 234 S. W. 270. In the case last cited, we sustained a verdict for an amount of total compensation not only less than that which could be arrived at from the testimony of any witness but also less than the lowest estimate of severance damages alone. We said that the jury might well have considered that the only damage in that case was the value of the land actually taken plus the cost of constructing a road crossing. We also said that in testing the evidence supporting a verdict for sufficiency, we would consider it in the light most favorable to the appellee.

When we do this here, we find that according to the testimony of the landowner, the 13.65 acres taken would have had a value of $4,095 or $545 more than Pearce assigned to them. The range of estimated damages to the remaining lands was from $2,900 by Pearce to $1,450 by one of appellant’s expert appraisers. Thus, the result reached by the jury was well within the range of testimony offered on the two critical elements of damage, when they are considered separately.

This approach is in harmony with our decisions in partial taking cases such as Arkansas State Highway Commission v. Wilmans, 236 Ark. 945, 370 S. W. 2d 802, and Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201. In the former, we held that a motion to strike only the “before values” given by a witness should have been granted because it included an improper element of damages. In the latter we rejected the argument that when a witness’ “after values” are stricken, his “before values” should also be stricken because the two are so closely related that one may be misleading without the other. Of course, “before values” relate to lands taken as much as they do to remaining lands.

We consider here only the particular situation existing in this case, i. e., when there is testimony which could be related separately to values of lands taken and to damages to remaining lands. We do not reach the situation which would be involved if all testimony related to “before and after” values only, and the verdict exceeded the greatest difference in values stated by any witness.

Since we cannot say that the testimony on behalf of appellees was not substantial, the judgment is affirmed.

Harris, C. J. and Jones, J., would offer a remittitur of $50.

Byrd, J., concurs.

       0.46 acre was already in a highway right-of-way.