author: Neill Bohlinger, Associate Justice. Carleton Harris, Chief Justice.

text:
    Bieker v. Owens.
    5-2489
    350 S. W. 2d 522
    Opinion delivered October 30, 1961.

      Sexton & Morgan, by Thomas A. Peclron, for appellant.

      Shaw, J ones & Shaw, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant, plaintiff in the court below, filed in the Sebastian Circuit Court, Fort Smith District, his complaint against Milton Owens, Carroll L. Owens, Bill Griffin and M. N. Griffin, alleging that he was the minor son of Otto J. Bieker and resided in Fort Smith, Arkansas. That Milton Owens was a minor who resided with his father, Carroll L. Owens in Fort Smith; that Bill Griffin was a minor residing with his father, M. N. Griffin in Fort Smith; that on or about August 26, 1960, the defendants, Bill Griffin and Milton Owens, driving an automobile which was the property of Carroll Owens, pursued and overtook the plaintiff, Johnnie Bieker, and by driving directly in front • of the automobile driven by Johnnie Bieker, forced him to stop and that the defendants, Griffin and Owens, forcibly, deliberately, maliciously, willfully and intentionally dragged the Bieker boy from his automobile and physically assaulted him by striking, beating and kicking the plaintiff and so injuring him that he was hospitalized for contusions of the face, lacerations, broken nose and mild concussion with other injuries. That the defendants, Carroll Owens and M. N. Griffin, knew that their sons, Milton and Bill, had dangerous tendencies and propensities of a willful and malicious nature and that by their lack of parental discipline and authority they had permitted, or failed to correct, the acts of their sons in the striking, beating and abusing other younger men less physically endowed than themselves and thus knowing of the propensities of these minors, the defendant parents failed and neglected to exercise needed restraint and authority over them and that due to such negligence the appellant alleges he was injured.

To this complaint Carroll L. Owens, appellee, interposed a general demurrer and the court, on February 20, 1961, sustained the demurrer and dismissed the complaint. From that action of the court comes this appeal.

“The general common law rule is that a parent is not liable of a minor child’s tort unless there is some element of participation,” Bonner v. Surman, 215 Ark. 301, 220 S. W. 2d 431.

The “Family Purpose Doctrine” is not accepted in this state and this court has recognized the rule that the negligence of a child cannot be imputed to the parent merely because of the parental relationship. Richardson v. Donaldson, 220 Ark. 173, 246 S. W. 2d 5511.

But here we are not concerned with the negligence of a child but with the negligence of the parent in permitting either actively or passively, a minor willfully or negligently to commit such acts which could reasonably be expected to cause injury to another.

It is within reason and good logic to- say that the parent has a responsibility to control minor children while they are in their formative years. For while they are not in the custody of the parents, absent any official action to the contrary, no other source of control may be found. Of course minors above a certain age are subject to criminal and civil sanctions but these sanctions are remedial rather than preventative. There is a question whether the civil sanctions are of any consequence since judgments against minors are of little practical effect. The old adage “an ounce of prevention is worth a pound of cure,” could be applied ixi these situations if the responsibility for the prevention is placed on the parents.

Since each human mind and personality is exclusively that of the individual possessing it, it would be unreasonable to place an absolute responsibility for the acts of another on any person. But where the parent (1) has the opportunity and ability to control a minor, and (2) has knowledge of the tendency or proclivity of the minor to commit acts which could normally be expected to cause injury to others, and (3) after having such opportunity, ability and knowledge has failed to exercise reasonable means of controlling the minor or appreciably reduce the likelihood of injury to others because of the minor’s acts, the parent should be made to respond to those who have been injured by such acts of thé minor.

39 American Jurisprudence § 58 states the rule in this manner:

“Although there are some decisions which have failed to recognize this principle, the general rule is that a parent may be liable for the consequences of failure to exercise the power of control which he has over his children, where he knows, or in the exercise of due care should have known, that injury to another is a probable consequence. Thus, a father may be held liable where he knows that a tortious act is in contemplation, or that his children are persisting in a course of conduct likely to result in injury to another. Failure to restrain the child, it is said, amounts to a sanction of or consent to his acts by the parent.
“It is questionable whether mere knowledge by the parent of his child’s mischievous or reckless disposition is enough to make him liable for torts of the child . . . Certainly, where there is nothing to show any knowledge and therefore any approval by the parent of a line of conduct on the part of the child, the parent is not liable. However, it must be remembered that, as in all negligence cases, the issue in the last analysis is whether the parent exercised reasonable care under all the circumstances,- therefore, especially where he has had knowledge of particular acts of the same kind as those which caused the injury, it would seem that he may, under some circumstances, be held liable solely on the basis of such knowledge followed by his failure to restrain or caution the child. Accordingly, it is held that to prove negligence on the part of the parent, evidence is admissible that he knew of the child’s former reckless conduct.” (Emphasis ours.)

67 Corpus Juris Secundum § 68 has this to say:

“As a general rule a parent may be liable for an injury which is caused directly by the child, where the negligence of the parent has made it possible and probable that such injury would so occur.
* * * While mere knowledge by the parent of a child’s mischievous and reckless or heedless or vicious disposition is not of itself sufficient to impose liability witli respect to torts of the child, according to some authorities, liability of the parent arises from failure to exercise control over the child where the parent knows, or, in the exercise of due care, should know, that injury to another is a natural and probable consequence of such failure, and the parent may be liable for negligence in causing the child to become dangerous and in not attempting to restrain the child, or for failure to correct or restrain the child where the parent has knowledge of a dangerous habit of the child which is likely to cause injury to others.
Generally speaking, liability of the parent is based on the rules of negligence rather than the relationship of parent and child. ‘Negligence’ in this connection has been regarded as a relative term and the duty imposed on the parent as dependent on the particular circumstances. In accordance with rules applicable in negligence cases generally, ***the negligence of the parent must have been the proximate cause of the injury. In other words, the injury must have been the natural and probable consequence of the negligent act, that is, a consequence which, under the surrounding circumstances, might and ought reasonably to have been foreseen as likely to flow from such act. In order to render a parent liable, his or her negligence in the exercise of parental supervision must have some specific relation to the act of which complaint is made, and liability may not be predicated on a failure to supervise where supervision would not have rendered the parent aware of the possibility of the tortious conduct of the child.
“The distinction has been made that any liability of the parent is for his own fault and not for the fault of the child, and the fact that the child is liable for the particular tort does not prevent the imposition of liability on the parent for his negligence with respect to such tort. ’ ’ (Emphasis ours.)

In Ellis v. D’Angelo et al, 116 Cal. App. 2d 273, 253 P. 2d 675, the complaint alleged that parents employed plaintiff for first time as baby sitter for a four year old son; that parents knew and failed to warn plaintiff that son habitually engaged in violently attacking and throwing himself forcibly and violently against-other people and violently shoving and knocking them and that shortly after plaintiff entered on her duties in the home the son attacked her to her resultant injury. The court held the complaint stated a cause of action against the parents for their negligence, saying:

“While it is the rule in California, as it is generally at the common law, that there is no vicarious liability on a parent for the torts of a child there is ‘another rule of law relating to the torts of minors which is somewhat in the nature of an exception, and that is that a parent may become liable for an injury caused by the child, where the parent’s negligence made it possible for the child to cause the injury complained of, and probable that it would do so.’ Buelke v. Levenstadt, 190 Cal. 684, 689, 214 P. 42, 44; Rocca v. Steinmetz, 61 Cal. App. 102, 214 P. 257.”

In 155 A. L. R. 85, in discussing Capps v. Carpenter, 283 P. 655, the annotator states, at page 90:

“Evidence of the boy’s reputation for possessing a malignant disposition, likely to make him dangerous to other children, as well as evidence of particular manifestations thereof, provided the instances were strictly relevant and of marked significance, was held admissible to show that his father knew, or should have known of such disposition; but evidence of reputation for possessing other propensities, or trivial instances of rough behavior were held not admissible.”

The question before us is, does the complaint state a cause of action? We think that it does. It describes the time and place and the extent of the tortious action, the injuries that were sustained by reason thereof, and in stating that the defendant parents had full knowledge and particulars of previous acts committed by their sons in inflicting injuries on smaller boys and that such minor sons had committed such willful and wanton acts, as the act committed against the plaintiff and that said parents,, knowing of these matters continuously failed to exercise any parental authority over the reckless and malicious conduct of their sons, thereby sanctioning, ratifying, and consenting to the wrongful acts, the complaint states a cause of action against the parents.

For the reason stated herein, the action of the circuit court in sustaining said demurrer is hereby reversed and this cause is remanded with directions to overrule the demurrer that further proceedings not inconsistent with this opinion may be had.

Harris, C. J., concurring.

Carleton Harris, Chief Justice.

I thoroughly agree with everything that is said in the Majority opinion, but, due to my long interest in matters relating to parental discipline, cannot refrain from making special comment in this case. I feel that this is one of the most important decisions that has been handed down by this Court, and truly “strikes a blow” for home discipline. I fervently trust that it will be effective in bringing to the attention of parents their responsibility for the actions of their minor children. Too many, though aware of the tendencies of the child to engage in improper or unlawful conduct, are unwilling to take the time, or make the effort, to curb such propensities, but rather, surrender this duty to the general public. Of course, I recognize that in some instances, children are incorrigible, but these instances are rare when considered in relation to the overall problem. In such event, proper discipline would seem to preclude the use of the family automobile. I am proud to have a part in handing down this Opinion, and it is to be hoped today’s action by the Court will receive wide attention.

         As defined by Webster: “Incapable of being corrected; not reformable; unmanageable; delinquent.”


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Interstate Fire Ins. Co. v. Ford.
    5-2490
    350 S. W. 2d 687
    Opinion delivered November 6, 1961.
    [Rehearing denied December 4, 1961.]

      DuVal L. Purlúns, for appellant.

      Paul K. Roberts, for appellee.
   Carleton Harris, Chief Justice.

On August 25, 1958, Interstate Fire Insurance Company, appellant herein, executed to Henry Ford, Sr., appellee, its policy insuring the contents of Ford’s premises to the extent of actual cash value of the property at the time of any loss, or the amount which it would cost to repair or replace the property with material of like kind and quality, now, however, to exceed $1500. The schedule recited that the property insured was located in “West End — next to Blackman’s Cafe, Warren, Arkansas.” “Contents Insurance” was defined as “household and personal property usual to a dwelling (except motor vehicles, boats and aircraft), including household and personal property purchased under an installment plan and usual to a dwelling, belonging to the Insured or a member of the family of the Insured, while contained in the dwelling.” On November 21, 1959, Ford’s dwelling house and all contents were totally destroyed by a fire. At the same time, equipment in a pressing shop, also owned by Ford, was likewise destroyed. Appellee contends that his living quarters, cafe, and pressing shop were all located in the same building, and that his policy covered the contents of each, while appellant asserts the pressing shop and restaurant were located in a separate building, and the company is not liable for any loss occurring there. Three days after the fire, appellant’s adjustor met with Ford, and after some conversation, the latter was given a draft for $499.42. This draft was held for approximately eleven months, at which time it was returned to the company by appellee, with the statement that $1500 was due to be paid for the loss. A few days later, Ford instituted suit against the company for $1500, together with 12% penalty, and attorney’s fees. On trial, the jury, in a 9 - 3 verdict, found for appellee in the full amount sought, and the court entered its judgment accordingly, together with 12% penalty and attorney’s fee in the amount of $350. From such judgment, comes this appeal. Several points are urged for reversal, but under the view we take, a discussion of each contention is not necessary.

Appellant contends that appellee, by his action in accepting the draft of $499.42 and executing his release therefor, is precluded from recovering any additional sums. The proof shows that V. M. Heller, an adjustor for Interstate, together with Cecil Marks, district manager of the company, went to Warren on November 24, 1959, for the purpose of adjusting the loss. They, together with Ford, examined the dwelling- house, and Ford submitted a list of his loss. All of the parties then visited with Moseley Furniture Company, and the butane gas company, and obtained the cost value of the items that had been listed. No examination of the pressing shop or cafe premises was made, because the company contended that it was not liable for any such loss. The cost value was set at $759.35, and was adjusted to the actual cash value at the time of the loss in the amount of $494.50. This adjustment was 65.1% of the 1957 actual cost value. Ford took the draft and delivered it to a lawyer; approximately eleven months later, it was returned to the company. Appellant company contends that Ford’s action in accepting the draft and signing the release constituted accord and satisfaction, but, under the circumstances of this case, we do not agree. Ford stated:

"He took me all around the store, and we discussed where it all burned, and he said, ‘I’ll settle with you if you want it’, and I said, ‘Yes, sir’, and I thought he was going to pay me and he said, ‘I’ll give you $499 on it’, and I say, ‘The policy say $1500.00’, and he say, ‘I’ll give you $499.00’, and he say, ‘I’ll give you new stuff if you want it’, and I say, ‘I don’t want no new stuff’, and he say, ‘I’ll give you $499.00’, and someone told me to see a lawyer, and I’d get more’n that, and I went up to see a lawyer and he kept it eleven months and kept it . . .
Q. You had another lawyer before Mr. Roberts?
A. Yes, sir. I went to see if he couldn’t get me more’n that. I didn’t figure that was enough.”

Appellee asserts that he was "overreached”; that he took the draft and signed the release because he doubted that he would get any amount if he refused. It does definitely appear that Ford was dissatisfied from the outset. We think, under the proof, that it was a question of fact for the jury to determine whether Ford entered into the settlement freely and voluntarily, and with full knowledge of all his rights under the policy. Ford was apparently an ignorant colored man, and was, under the evidence, unable to read, and could only write his name.

The proof is not entirely clear as to whether the dwelling, pressing shop, and cafe were joined, and under the same roof. Ford testified that the cafe, pressing shop and dwelling were “tied together”; that the cafe was in the front, the pressing shop in the rear, and the dwelling to the east, some 15 or 20 feet from the pressing shop, but connected by “a little gate you go into about 10 feet where you go in, and joined by the same ramp * * * it’s a little place, just enough room to go through it, and I had it over the top of the other building.” Cleo Broomfield testified “it was all one building in together” . . . “Just a little passageway between the two buildings.” She testified there was a shed between the living quarters and the pressing shop. Hazel Hampton testified that the buildings were adjoined by a passageway with a roof on the back, but not over the front. Susie May Young testified that the pressing shop and dwelling were joined by a roof. We think the evidence was sufficient to make a jury question except that portion of the building occupied as a cafe definitely was not covered. This is shown by the terms of the policy itself, which describes the insured premises as being located “next to Blackmans cafe.” This language, of course, precludes recovery of property in Blackman’s cafe.

As to the last, appellee would, at any rate, be precluded from recovery for most items located in the restaurant, because the restaurant equipment, the value of which was introduced into evidence, was not “household and personal property usual to a dwelling.” For example, there is testimony of the loss of eighteen stools. This obviously is restaurant equipment. It is not at all clear from the evidence as to the value given the restaurant equipment. From the testimony:

“Henry, you list in this Complaint that you lost some dishes and restaurant equipment.
A. Yes, sir.
Q. What was the value of the dishes and restaurant equipment?
A. The restaurant ... all the stuff in it was about $500.00 value.
Q. All of it?
A. $500 value for the whole thing. I had an ice box and deep freeze.
Q. We’re not talking about that. We’re talking about the dishes in the restaurant.
A. That’s all combined.
Q. Talking about the dishes and things in the restaurant, but no taking in the box . . . how much was that worth?
A. I guess . . . I’ll say $250.00 for the restaurant equipment, dishes, plates and glasses and stove and sink to wash the dishes.”

This testimony was objected to, and should have been excluded, for these items are beyond the coverage afforded by the policy. Certain other items were listed (objected to by appellant) which obviously cannot he characterized as “household and personal property usual to a dwelling”; for instance, a steam presser and boiler used in connection with the pressing shop, which Ford testified cost $350; also, three “puff irons” valued at $75. Other irons and items are mentioned, but the evidence is insufficient to determine whether these were items usual to a dwelling. Upon a new trial, the testimony should be more fully developed. Likewise, evidence was admitted of the loss of 15 suits of clothes and 15 overcoats from the pressing shop. While the testimony is not entirely clear, it would appear that these coats and suits belonged to customers, since they were located in the pressing shop, and the number seems unusually large for an individual to own. As heretofore mentioned, the policy, in defining “contents insurance” provided coverage only for personal property owned by the insured or a member of his family or being purchased on the installment plan. This, too, can be more fully developed. Since this cause is being remanded, it might also be well to mention that appellee’s proof, relative to value of certain items, is rather indefinite. In several instances, he prefaces his evaluation with the word “about”, i.e., “about $4.50 a piece” (referring to the value of chairs); “I’d say” (referring to the value of beds and springs); “I guess”, and other testimony of a similar nature.

The judgment is reversed, and the cause remanded.

       Ford owned the building, furnishings, and equipment in the cafe, but had, some time prior to the fire, leased same to one Blackman.

       The loss was adjusted as $494.50, but Ford was due a refund of premium in the amount of $4.92, which was included in the draft.

       The actual judgment entered was $1,005.58, inasmuch as the company had already paid into the registry of the court the sum of $499.42. Interest was allowed on this amount in the sum of $88.68.

       Two ice boxes and two deep freezes are mentioned in appellant’s evidence; apparently one ice box and deep freeze were located in the dwelling.


author: Ed F. McFaddin, Associate Justice.

text:
    Cotten v. Hamblin.
    5-2478
    350 S. W. 2d 612
    Opinion delivered November 6, 1961.

      J. B. Milham and Gladys M. Cummins, for appellant.

      John L. Hughes and Ben M. McCray, for appellee.
   Ed F. McFaddin, Associate Justice.

This appeal stems from appellants’ attempt to set aside an order of adoption, and the only question here presented is whether there was a defect of parties. The Probate Court held that there was a defect, refusing to hear the evidence, and dismissed the petition. Prom that ruling, there is this appeal.

The appellants, Mr. and Mrs. J. C. Cotten, are the paternal grandparents of two little boys, Roy, .aged 14, and Edward, aged 12. In October 1959, the Saline Probate Court made an order of final adoption (§ 56-108 et seq. Ark. Stats) whereby the appellees, Mr. and Mrs. Hamblin, adopted the two little boys. In October 1960, Mr. and Mrs. Cotten filed a suit in the Saline Chancery Court to set aside the order of adoption. That case came before us in Cotten v. Hamblin, 233 Ark. 65, 342 S. W. 2d 478, wherein we held that the Chancery Court was without jurisdiction; and our opinion concluded: “We accordingly affirm the decree without prejudice to the appellant’s right to apply to the probate court for such relief as he may be entitled to — a point upon which we express no opinion.”

On February 21, 1961, Mr. and Mrs. Cotten filed the present petition in the Saline Probate Court, seeking to set aside the order of adoption, and they alleged: (1) That the petitioners were the paternal grandparents of the two little boys; that the petitioners, at all times, lived and resided in Garland County; that the little boys were living and residing with the petitioners in 1959; that the boys went to school, and the Hamblins took the children from school and proceeded with the adoption Avithout notice to the petitioners. (2) That at the time of the adoption the boys Avere residents of Garland County and could not be legally adopted in a proceeding in the Saline Probate Court. (3)“. . . That the defendants are unable to get along with said minor children and have beat and abused said children AAÚthout just cause, and especially beat and AAdiipped Roy Jean with a large stick of Avood and caused said children to leave their home in night-time and tramp through the Avoods to their grandparents, plaintiffs herein, that defendants and the children Avere strangers to each other at the time of adoption and said minor children have become someAAdiat hostile to said adopted parents.”

On motion of the Hamblins, the Probate Court, Avithout hearing any evidence, dismissed the petition by an order which recited:

“That petitioners, who are the paternal grandparents of the adopted: children, are not the proper parties to maintain an action to annul the .adoption decree, the natural parents of said- children having consented to said adoption and not-having joined petitioners in their petition to annul said adoption decree.”

As aforesaid, the only question here presented is whether the petitioners are proper parties to maintain this action to annul the order of adoption. In Gillen v. Edge, 214 Ark. 776, 217 S. W. 2d 926, the natural mother of a little girl filed a petition to annul the order of adoption. The Probate Court held that only the Welfare Department could maintain such a petition. In reversing the Probate Court’s ruling, we said:

“Both the statute in force in 1943 (Pope’s Digest, § 263) and the present law (Ark. Stats. (1947), § 56-110) provide that a petition to annul an adoption order may be filed if the adoptive parents fail to perform their obligations. Neither act specifies by whom the petition must be filed, and it is obvious that the natural mother ordinarily has a deeper interest in her child’s welfare than anyone else. Appellant’s consent to the proceedings was of course based on the assumption that the appellees would give her daughter proper care. If they have not done so, appellant certainly has the privilege of bringing that fact to the court’s attention. We do not construe Ark. Stats. (1947), § 56-118, as vesting in the Child Welfare Division the exclusive power to seek annulment of an adoption order.”

Of course, a rank outsider or mere stranger could not maintain a petition to annul an order of adoption, but in the ease at bar the petitioners alleged that the little boys were living with petitioners who had the care and custody of the children for many years before they were taken away. So the petitioners occupied some sort of semi loco parentis relationship to the children, and are not entire strangers. A grandmother was held entitled to resist an adoption proceeding in Fries v. Phillips, 189 Ark. 712, 74 S. W. 2d 961. Furthermore, in the ease at bar, the petition for annulment alleged that the adopting parents were mistreating the children. Section 56-110 Ark. Stats, lists as the first cause for annulling an order of adoption, “The adopting parents have failed to perform their obligations to the adopted person.” In every case the best interest of the child is the paramount question. § 56-108 Ark. Stats.; Caples v. Wages, 219 Ark. 252, 241 S. W. 2d 111; 2 C. J. S. 436 et seq., “Adoption of Children,” § § 45, 57.

In the ease at bar the Probate Court should have heard the evidence to see what was best for the children and also whether the original adoption was valid or should be annulled for one of the reasons set forth in the statute. Under the facts here alleged, the petitioners were not entire strangers; and the Court should have heard the evidence. The judgment is reversed and the cause is remanded for further proceedings not inconsistent with this opinion.

      For whatever force it may have, there is in the transcript here before us, the report of the State Welfare Department concerning the children and their parents at the time of the original adoption. On the trial on remand, we are of the opinion that there should be evidence obtained as to the present condition of the parents and their attitude toward the present litigation.


author: George Rose Smith, J.

text:
    McGehee Hatchery Co. v. Gunter.
    5-2483
    350 S. W. 2d 608
    Opinion delivered November 6, 1961.

      Gannaway é Gannaway, for appellant.

      House, Holmes, Butler & Jewell, for appellee.
   George Rose Smith, J.

This is a claim by the appellee, Keno R. Gunter, for benefits under the Arkansas workmen’s compensation law. Gunter, a resident of Mississippi, was injured on January 22,1958, in a traffic accident upon a Mississippi highway. At that time he was employed as the manager of Warren Produce Company, a Mississippi concern, at a salary of $550 a month, and was also employed as a traveling salesman by the appellant, an Ai’kansas concern, at a salary of $285 a month.

Gunter first asserted a claim against Warren Produce Company and its insurance carrier, under the Mississippi workmen’s compensation law. Upon that claim he received benefits totaling $12,391.50, which included $5,764.15 for medical and hospital expense and $6,627.35 as payments for disability. About a year after the accident Gunter filed this claim against the appellant and its insurance carrier for similar benefits under Arkansas law. Without going into the merits of the claim the commission, citing Butler v. Lee Bros. Trucking Contractors, 206 Ark. 884, 178 S. W. 2d 58, held that the payment of maximum benefits under Mississippi law-barred Gunter from asserting a claim under Arkansas law. The circuit court reversed the commission’s decision and directed that the entire claim be considered on its merits.

Our holding in the Butter case does not bar the present proceeding. There we considered ourselves bound by the decision in Magnolia Petroleum Co. v. Hunt, 320 U. S. 430, 88 L. Ed. 149, 64 S. Ct. 208, 150 A. L. R. 413, where the Supreme Court had declared that the allowance of a workmen’s compensation claim in Texas constituted, under the full faith and credit clause, a complete defense to the assertion of the same claim in Louisiana. But later on the Hunt case was very nearly overruled by the holding in Industrial Comm. of Wisconsin v. McCartin, 320 U. S. 622, 91 L. Ed. 1140, 67 S. Ct. 886, 169 A. L. R. 1179, where the court held that the second claim would be barred only if the law of the first state so declared, which is not the situation in the case at bar. For a discussion of all three prior cases see Leflar, Conflict of Laws, 3 Ark. L. Rev. 18, where the author concludes: “In the light of the later McCartin case, it seems that a second award, such as was sought in Arkansas in the Butler case, is permissible if it is not barred by the terms of the first award. Of course there can be no double recovery, however; only the difference by which the second award is greater than the first may be recovered.”

This possibility of a double recovery presents the second question in this case. Where there is only a single employer the imposition of duplicate liability under the applicable laws of two states is universally condemned. “To allow double recovery is contrary to one of the fundamental principles of workmen’s compensation.” Schneider, Workmen’s Compensation (Perm. Ed.), § 160; see also Leflar, The Law of Conflict of Laws, § 138. In some decisions, such as Mizrahi’s Case, 320 Mass. 733, 71 N. E. 2d 383, the second claim has been rejected as a matter of policy. In the great majority of cases, however, the smaller award is merely credited upon the larger one. Cook v. Minneapolis Bridge Const. Co., 231 Minn. 433, 43 N. W. 2d 792; Hughey v. Ware, 34 N. M. 29, 276 P. 27; Salvation Army v. Industrial Comm., 219 Wis. 343, 263 N. W. 349, 101 A. L. R. 1440. In the only case allowing a double recovery against the same employer, Texas Employers’ Ins. Assn. v. Price, Tex. Civ. App., 300 S. W. 667, the court pointed out that the total- amount of the two disability awards did not equal the employee’s wages; so he was receiving less than full compensation. Within less than a year after the Price decision was rendered the Texas statute was amended to expressly prohibit a double recovery. Texas Laws, 1927, ch. 259, § 1.

Where there are two employers, however, a different situation exists. In the case at bar Gunter received, a salary from his Mississippi employer and another salary from his Arkansas employer. If he was injured in the course of his employment for both concerns we think it clear that he has sustained two distinct wage losses during his disability. That he may have received weekly payments under Mississippi law, amounting to a percentage of his Mississippi salary, is not a sound reason for denying weekly payments under Arkansas law to compensate the loss of his Arkansas salary. Ark. Stats. 1947, § 81-1313.

"VYe have found no similar case involving disability payments, but in the field of death benefits there is authority to support our conclusion. In 1949 Edward H. Gehring was killed in the course of his employment for a New York company and for two Rhode Island companies. Death benefits were allowed in both states. In the New York case the court stressed the fact that the awards were based upon different wage losses, it being said: “But it is not a double recovery in the true sense, since the award in each state is based solely upon the earnings of the employee in that state.

“The decedent’s earnings in the New York employment were so great that they entitled his dependents to the maximum death benefits under the New York statute, without taking into account the decedent’s earnings in the Rhode Island employments. Similarly, the decedent’s earnings in the Rhode Island employments were sufficient to warrant a maximum award under the law of that state, without taking into account the decedent’s earnings in his New York employment. A different situation would be presented if the claimant had sought a recovery in each state, in an amount which was computed upon the basis of the total earnings of the decedent in his employments in both states, but no such problem is presented here.” Gehring v. Gehring Laces, 286 App. Div. 382, 143. N. Y. S 2d 17.

The companion Rhode Island case is Gehring v. Nottingham Lace Works, 82 R. I. 190, 106 A. 2d 923, 108 A. 2d 514, where, however, the court relied in part upon a statute providing that no benefits from any other source should be considered in fixing compensation. In a later case the court pointed out that the Gehring decision did not support the allowance of two awards against the same employer. Scialo v. Luisi, ......... R. I. ........., 161 A. 2d 194. A third case in which death benefits were allowed against two separate employers is Shelby Mfg. Co. v. Harris, 112 Ind. App. 627, 44 N. E. 2d 315.

Upon the reasoning followed in the above cases we think it proper for the Arkansas commission to consider, upon its merits, the matter of making a disability award to compensate the appellee for the loss of his Arkansas earnings. To this extent the judgment of the circuit court is affirmed.

On the other hand, we think it almost too plain for discussion that Gunter is not entitled to be unjustly enriched by receiving a duplicate cash award for hospital and medical expenses that have already been paid in full by his Mississippi employer. Exactly the same public policy that condemns a double recovery against the same employer, even though he may have two policies of compensation insurance in two different states, also condemns Gunter’s claim for hospital and medical expense. In our study of the cases we have not found a single instance in the United States in which a double recovery of this kind has been approved.

It is argued that the situation is analogous to recovery upon two policies of accident insurance or fire insurance. Such a statement was made, entirely as dictum, in one early case. Rounsaville v. Central R. Co., 87 N. J. Law 371, 94 A. 392, reversed on other grounds, 90 N. J. Law’ 176, 101 A. 182. A leading writer, in referring to the Rounsa.ville dictum, has said that “it was once erroneously suggested that a complete double recovery under the acts of two states might be possible, on the strength of the discredited analogy of recovering on two private contracts of accident insurance.” Larson, Workmen’s Compensation, § 85.70. In the same vein the New’ Mexico court has said tersely, “The analogy is false.” Hughey v. Ware, 34 N. M. 29, 276 P. 27.

The fallacy in the Rounsaville dictum is readily apparent. In the first place, the primary duty is upon the employer, not the insurance carrier, and that duty is to “provide” medical and hospital care. Ark. Stats., § 81-1311. The basic legislative purpose is to furnish those services to the injured workman, not to enrich him by a monetary payment for a financial loss not actually suffered by him.

Secondly, in the field of accident insurance and the like the parties are free to contract or not to contract as they choose. That is not true in the field of workmen’s compensation, where the benefits are fixed by law rather than by private agreement. If an employer should happen to have two policies of compensation insurance in force at the same time it would not be seriously contended that his employees were thereby entitled to double benefits. Indeed, that situation has arisen in cases too numerous to cite; liability has often been divided between the insurers, but we have found no case in which a double recovery has been permitted or even suggested. The point seems so clear and the authorities so completely in accord that we think further discussion to be unnecessary.

With respect to the claim for medical and hospital expense the circuit court’s order is modified to conform to this opinion.


author: Paul Ward, Associate Justice. Carleton Harris, Chief Justice,

text:
    Woodruff Electric Coop. Corp. v. Ark. Public Service Comm.
    5-2388
    351 S. W. 2d 136
    Opinion delivered November 6, 1961.
    [Rehearing denied December 11, 1961.]

      Eldriclge & Eldridge, for Woodruff Electric Cooperative Corp.; Leland F. Leatherman, for Ark. State Electric Cooperative, Inc., appellant.

      Jack P. West, for City of Forrest City; House, Holmes, Butler & Jeioell and Mann S McCulloch, for Ark. Power & Light Co., appellee.
   Paul Ward, Associate Justice.

The problems involved in this litigation were germinated in 1957 when the Arkansas Power and Light Company took over territory previously assigned to the Woodruff Electric Corporation. Several parties are involved, so, before summarizing the factual background it will be helpful to identify them at this point. Appellant, Woodruff Electric Cooperative-Corporation, will be referred to as Woodruff; Arkansas Power and Light Company as Power Company; the city of Forrest City as City; the Arkansas State Electric Cooperative as State Electric; and the Arkansas Public Service Commission as Commission,

Woodruff was organized in 1937 pursuant to Act 342 of that year. It is here noted that said act gave such organizations authority to operate in rural areas, and Sec. 2 (8) of the Act defines “Rural Area” as all area except that area in cities and towns having a population in excess of twenty five hundred. In 1948 the City leased to the Power' Company (by a 31 page document signed by both parties) its power plant and auxiliary equipment with the right to serve the City. (This lease was not to be effective until the Power Company had completed a large power unit some miles outside the City limits). In 1950 Woodruff erected a large warehouse and office building on land adjacent to the north side of the City limits at a cost of approximately $150,000. In 1951 the Power Company’s lease became effective when it took over the operation of the City’s plant and distribution system. Following this, in 1953, the Commission allocated to Woodruff 120 acres of land north of the City limits which we will hereafter call “area”. This area was near Woodruff’s warehouse and office building. Also it was bisected by a through highway and was near the railroad.

Two or three years after the Commission made the allocation to Woodruff the citizens of the City became interested in a project to secure an out-of-state industry. This resulted in a firm named Yale & Towne agreeing to locate on the “area” provided the City would extend its boundaries to include that location and also, it seems, provided it would be furnished electricity by the Power Company. Pursuant to the above, the City, on December 10, 1956, annexed a portion of the “area” and on January 25, 1957 the Power Company contracted to furnish power to Yale & Towne. This resulted, of course, in Woodruff being deprived of a portion of its allocated territory including nine members therein which it had formerly been serving. So, on March 21, 1957 Woodruff filed a complaint before the Commission against the Power Company for relief under Act 85 of 1955. The City and the State Electric intervened, and after a full hearing the Commission ruled against Woodruff on the sole ground that Sec. 3 of said Act 85 precluded Wood-ruff from receiving any relief. On appeal by Woodruff and the State Electric to the Circuit Court of Pulaski County the Commission was affirmed, and they now prosecute an appeal to this Court for relief.

On appeal Woodruff insists that the only question for decision is the construction of Sec. 3 of Act 85 of 1955, but the Power Company and the City also challenge the constitutionality of the act.

Construction of Section 3. First we examine the history of Act 85 and our former interpretation of the prior Act No. 342 of 1937. The only decision of this Court which bears materially on the issue here is the case of Farmers Electric Cooperative Corporation v. Arkansas Power & Light Company, 220 Ark. 652, 249 S. W. 2d 837. In the cited case appellant served territory adjacent to the City of Newport which was later taken over by appellee. When the City annexed a portion of appellant’s territory and appellee’s service followed, appellant sought relief (as here) against appellee. On appeal we in effect held, that when the City extended its boundaries to take in new area appellee was obligated to serve such area and that there was no provision in the law whereby the cooperatives could be compensated for loss of territory. In speaking of the latter situation we said:

“No doubt the General Assembly failed to foresee the conflict here presented when Act 342 was being considered, else some provision would have been made for the awkward situation.”

There can be little doubt that the legislature had this “awkward situation” in mind when it passed Act 85 of 1955. At any rate this act does provide a method of relief to a cooperative which hás been deprived of a portion of its alloted territory. It is crystal clear that a situation could arise where it would be unjust to deprive a cooperative of a lucrative territory which it alone had developed over a long period of time. Whether or not that situation obtains to a small or large degree in the case before us now is immaterial because, in either event, the same principle is involved, and the interpretation of Act 85 would be the same. With this in mind we proceed to an analysis of said act.

Sec. 1 of Act 85 amends Sec. 2 (8) of Act 342 of 1937 which, as before mentioned, merely defines the area in which cooperatives may operate; The amendment contains all the language in said Sec. 2 (8) and also additional language relating thereto, but it is not material here. Then the section further provides as follows:

“. . . and said Corporation shall not be ousted from service in said rural area or deprived of the right to continue to provide electric service in said rural area subsequent to the granting of a Certificate of Convenience and Necessity by the Arkansas Public Service Commission, except as provided in this Act, as amended.”

It is conceded that Woodruff has been assigned the territory here involved by the Commission when the Power Company took it over. It is obvious therefore from the above quoted portion of Sec. 1 that Woodruff can be “ousted”, but it remains to be seen hoio and on what conditions.

The answers to the above questions are to be found in Sec. 2 of Act 85. One portion of Sec. 2 reads as set out below:

“If any rural area allocated by the Public Service Commission to a corporation organized under this Act shall be included in, or become a part of any incorporated city, town or village already being served with electricity by a regulated public utility, then the members of said corporation residing or operating within such city, town or village shall lose their membership and right to receive service from said corporation.”

The above quoted language tells how Woodruff can be “ousted”. The rest of the paragraph tells on what conditions it can be “ousted”, and it reads:

“It shall be the duty of the Commission to enforce the provisions of this Act and to provide for adequate compensation to the corporation for its loss of area and property. ’ ’

The rest of the paragraph explains how “adequate compensation” is to he arrived at by the Commission but we are not here concerned with that feature because the extent of compensation is a matter for the Commission and not this Court to decide, and it is not an issue at this time.

The conclusion deducible from what we have said so far about Act 85 is that Woodruff should be compensated for the loss of part of its territory. With certain reservations to be noted later we understand that appellees agree with the indicated conclusion.

However appellees contend (and the Commission held) that none of the above mentioned provisions of Act 85 are of any benefit to Woodruff because of Sec. 3 of the Act. This section reads:

“Nothing in this Act nor any of the provisions of Act 342 of the Acts of the Arkansas General Assembly of 1937 (Arkansas Statutes 1937, Section 77-1131) shall in any manner restrict or impair the right of any municipality to acquire, construct, expand, maintain or operate any electric generation, transmission or distribution facilities within the corporate limits of said city, town or village in Arkansas as such limits may now exist or as such limits may exist upon the extension or expansion of the city limits of said city, town or village.”

Fundamentally and generally speaking, appellees’ contention in this connection is based on the fact that the Power Company is only a lessee and that the power plant and facilities are oivned by the City. There can be no dispute that this is the true relationship between the two mentioned parties, even though it is correctly pointed out by appellants the lease can run for eighty years and a large portion of the utility is owned outright by the Power Company. This, say appellees, makes the City the real party in interest in this litigation and therefore not liable for compensation because of said section. We have concluded, however, for reasons set out below, that said See. 3 does not admit of the interpretation placed on it by appellees.

(a) As mentioned before, we feel that the primary purpose of Act 85 was to remedy the unjust and “awkward” situation previously mentioned. That being true the act should, we think, be liberally construed to effectuate that purpose. From the very nature of the business of supplying energy to customers in adjacent territories there will always be reason for rivalry between cooperatives and public utilities. Some of this rivalry may be advantageous to the general public, but the State has recognized the need for a mediator. This need has been partially met by requiring both parties to receive their allocations of territory in which to serve from the Commission. Through Act 85 the State has manifested an interest in seeing that both parties are treated fairly and justly. This right to serve enjoyed by both parties is a privilege granted by the State and is therefore subject to regulation by the State through the Commission. This is not true of a city. As we view the provisions of Secs. 1 and 2 of Act 85 they deal with the right to serve (certain territories) and not with ownership of property. The conflict here is over the right to serve a certain territory. The Power Company, under the facts and circumstances of this case, has been given the right to serve the disputed territory just as effectively as if it had bought City’s plant instead of leasing it. Certainty it is true that Woodruff’s loss would be the same in either event. We must conclude therefore that the provisions of Secs. 1 and 2 were meant to give relief to Woodruff under the undisputed facts of this case.

(b) We are unable to agree with appellees’ contention that the conclusion we have reached above nullifies Sec. 3 of Act 85 in that such conclusion deprives Forrest City of rights it has under said section. The answer to appellees’ contention is that Forrest City at one time had the right mentioned in Sec. 3 (copied above) but it saw fit to contract that right away, and is therefore in no position to complain now. One of the most sacred rights granted an individual by the Constitution is the right to own and keep property, but no one would contend that such individual cannot dispose of his property. As a matter of fact (as we understand the lease contract) the City still has every right (except one) mentioned in Sec. 3. It now has, under the lease, the right to “acquire”, “construct”, “expand” and (perhaps) “maintain” a power plant. The only right City does not now have is the right to “operate” the plant. This latter right the City (for what it considered its best interest) transferred, with the approval of the Commission, to the Power Company. We think the sole purpose of the legislature in inserting Sec. 3 in Act 85 was to reaffirm and protect the right of cities to own and operate their own electric plants if they so desired. Certainly Sec. 3 does not prohibit the City from selling or leasing away that right.

We now discuss some other objections raised by appellees.

Compensation. Having already concluded that Woodruff is, in principle, entitled to compensation under Secs. 1 and 2 of Act 85, we are not, as before indicated, concerned at this time with the measure of compensation since that was not considered by the Commission. The act provides for an exchange of territory in the manner and under the provisions therein set out. However, appellees advance the argument that Act 85, in this respect, is unconstitutional because only a court of law and not the Commission can assess damages. It is noted that the act provides for assessment of damages only in the event Woodruff desires to sell some of its property. No such event has arisen in this case as yet and it may never arise. In fact it was stated on oral argument by appellants that Woodruff was only asking for an exchange of territory. It is hardly likely therefore that this Court will ever be called upon to decide whether the Commission has the constitutional right to assess money damages since Act 103 of 1957 (not involved here) provides that cooperatives “shall not he ousted from service in said rural area”. We are of the opinion however that the Commission has the right, in its sound discretion and subject to review by the courts, to effect a substitution of territory as a necessary incident to an administration of the other provisions of the act.

In the case of Southwestern Gas & Electric Co. v. City of Hatfield, 219 Ark. 515, 243 S. W. 2d 378, it was said:

“In making such determination the Commission may consider and determine questions of law, or mixed questions of law and fact, where such questions are germane and incidental to the final legislative act.”

Impairment of Contracts. Appellees’ argument is to the effect that the Power Company has acquired certain rights by and through its lease contract with the City, and that the legislature could not (by Act 85) constitutionally divest it of such rights. One answer to that argument is that nothing will be taken away from the Power Company if the Commission follows the provisions of Act 85. Theoretically at least neither party can be hurt by operation of the act. If the Power Company gives up anything of value it must not exceed the value of that which it has already received. Moreover, when the Power Company leased from the City, it knew that the State had the paramount right (through the legislature) to allocate territory between it and the cooperatives. The Power Company could not restrict that right by contracting with a third party. If it could, then the State’s entire program of allocating territory would be subject to nullification.

The judgment of the trial court is reversed and the cause is remanded thereto with directions to remand to> the Commission for further proceedings in accordance with this opinion.

Reversed and remanded.

Harris, C. J., and Robinson, J., dissent.

Carleton Harris, Chief Justice,

dissenting.

In my opinion, Forrest City had a right to lease its power plant and auxiliary equipment to the Arkansas Power & Light Company, and enter into a contract with that organization to serve the city. Under the holding of the Majority, it would certainly appear logical that the city, if and when it resumes its operation of the municipal power plant, will be forced to reimburse the power company for whatever property or assets the company gives up to the Woodruff Cooperative. This seems to me to be in conflict with Section 3 of the Act which provides that none of the provisions of Act 342 shall in any manner impair the right of any municipality to “acquire, construct, expand, maintain, or operate any electric generation, transmission or distribution facilities within the corporate limits of said city, town or village * * V’ That section does not contemplate that a city shall give up anything of value in order to service its customers. I feel that this Court has placed a restriction upon the cities that the Legislature did not intend.

I firmly believe in the principle set forth in Act 85 of 1955, i.e., an affected cooperative should receive an exchange of territory or customers to compensate for that which it is forced to give up to a private utility, and, in the case before us, if the proof reflected that this lease contract had been entered into after the passage of Act 85 — or after the Yale & Towne organization had decided to move to Forrest City, — an entirely different situation would exist. Of course, under the evidence in this case, there can be no contention that the lease arrangement between the city and power company was merely a subterfuge to take Woodruffs territory. The proof is undisputed that the city had owned and operated its municipal electric system for nearly fifty years and that this lease agreement was entered into in 1948, becoming effective in 1951 (after the power company had made extensive improvements required under the contract), at which time the company took over the operation of the city’s plant and distribution system. This was several (about five) years before Yale & Towne moved into the area, and, as far as I can determine, several years before it was even contemplated that such an event would happen. While in this particular instance, the new territory will likely be profitable, it must be remembered, that if it were otherwise, and the city had annexed territory which would prove unprofitable for the power company to serve, under the provisions of the lease, the latter could be compelled to perform. This loss of territory was due to action initiated by the citizens of St. Francis County, resulting in the county court order of December 10, 1956, and resolution of the City Council in December, 1956. In January, 1957, in conformity with the action of the council, the mayor wrote the power company, directing the company to provide service to the Yale & Towne plant.

For the reasons indicated, I would affirm the judgment, and therefore, respectfully dissent.

         Emphasis supplied.

       This identical provision is also contained in Act 10S of 1957.

       The city did voluntarily offer to assign nine other customers to Woodruff to replace the nine taken from it, but the offer was refused.


author: Sam Robinson, Associate Justice.

text:
    Cecil v. State.
    5021
    350 S. W. 2d 614
    Opinion delivered November 6, 1961.

      Donald Poe, for appellant.

      Prank Holt, Attorney General, by Sam H. Boyce, Asst. Attorney'' General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Belton Cecil, appeals from a conviction of a misdemeanor, for which he was fined $99. He was charged in an information filed by the prosecuting attorney with the offense of “allowing a fire to escape.” It is further alleged in the information that he allowed the fire to escape from his control after having built said fire and permitted it to spread to the lands of Lehman Gilley. On appeal appellant first contends that the evidence is not sufficient to sustain the verdict of guilty. It is not disputed that about four or five o’clock on March 28, 1960, appellant set fire to some grass in a meadow he owned. To the north and east of this meadow there is a creek about 16 feet wide. About 18 feet from the water’s edge there was a dead tree, which became ignited from the fire set by appellant. The State contends that the next day the top burned out of the tree and fell across the creek, starting a fire on the east side thereof. Appellant contends that although the tree did catch fire, he extinguished it late on the evening of the 28th and that it was not burning the next day, the morning of the 29th. In any event, about 500 acres, including the land of Lehman Gilley, east of the creek, burned and there is ample evidence from which the jury could have found that the State’s version of what occurred is correct.

Among other testimony produced by the State, Lehman Gilley testified:

“A. I traced the fire back to the opposite side of the field where Mr. Cecil was setting the fire.
Q. How did you do that?
A. It was burned over, and was bordered by a little draw next to the creek, and on the north and on the west and southwest was the Barren Creek, and there was a tree that had been afire the evening before along there where he had burned the field, and the top had burned out and fell in and across the creek.”

Appellant was prosecuted under the provisions of Ark. Stat. § 41-507, which make it a misdemeanor to be punishable by a fine of not less than $10 nor more than $100 or a jail sentence of not less than ten days nor more than a year, or by both fine and imprisonment, for (paragraph 2) “Allowing fire to escape from the control of the person building or having charge of the fire, or to spread to the lands of any person other than the builder of the fire.” or (paragraph 3) “Burning any brush, stumps, logs, rubbish, fallen timber, grass, stubble or debris of any sort, whether on his own land or that of another without taking necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof. The escape of such fire to adjoining-timber, brush, or grass lands shall be prima facie evidence that necessary precautions were not taken.”

The court, by instruction No. 7, told the jury:

“The section of law upon which this Information is based reads as follows, to-wit: ‘The following acts shall be misdemeanors and shall be punishable by a fine of not less than $10.00 nor more than $100.00, or a jail sentence of not less than ten (10) days nor more than a year, or both such fine and imprisonment.’
“ ‘Burning any brush, stumps, logs, rubbish, fallen timber, grass, stubble or debris of any sort, whether on his own land or that of another without taking necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof. The escape of such fire to adjoining timber, brush or grass lands shall be prima facie evidence that necessary precautions were not taken.’ ”

And instruction No. 8 given by the court is as follows:

“So if you find from the testimony in this case beyond a reasonable doubt that the defendant, Belton Cecil, did, within one year prior to the filing of the Information herein, in Polk County, Arkansas, burn any brush, stumps, logs, rubbish, fallen timber, grass, stubble or debris of any sort, on his own lands without taking the necessary precaution both before lighting the fire and at all times thereafter to prevent the escape thereof, then you will find the defendant guilty, and fix his punishment by a fine of not less than $10.00 nor more than $100.00, or by a jail sentence of not less than ten days nor more than a year, or . by both such fine and imprisonment.”

Appellant complains of the giving of these two instructions, contending he was charged in the information with allowing “fire to escape” as set out in the second paragraph of the statute, and that the instruction authorizes the jury to return a verdict of guilty provided in the third paragraph of the statute. True, instruction No. 8 does authorize a verdict of guilty of violation of the third paragraph of the statute. It cannot be said, however, that a charge in the information in substantially the wording of the third paragraph of the statute, of allowing fire to escape “from his control after having built said fire, and permitting it to spread to the lands of Lehman Gilley,” is not sufficient to charge appellant with, doing the act that the State’s evidence showed him to be guilty of, to the satisfaction of the jury.

Appellant next complains of the court’s action in refusing to give instructions requiring the State to prove the venue. The trial court was not in error in refusing to give these instructions. Ark. Stat. § 43-1426 provides: “It shall be presumed upon trial that the offense charged in the indictment was committed within the jurisdiction of the court, and the court may pronounce the proper judgment accordingly, unless the evidence affirmatively shows otherwise.” See Meador v. State, 201 Ark. 1083, 148 S. W. 2d 653.

Appellant argues that the trial court erred in permitting the prosecution to impeach the defense witness Buck Smedley, without having laid the proper foundation for such impeachment. Buck Smedley testified in regard to another fire started by appellant having no connection with the fire involved in the case at bar. He testified he saw appellant at about 10:00 a.m., about one and a half miles south of the fire here involved, on the day both fires were burning. Jennie Mae Smedley, a relative of Buck Smedley, was allowed to testify on cross examination by the State’s attorney that Buck Smedley told her he had first seen appellant on the day of the fire at about 12:00 noon. We fail to see how this testimony could have in any manner been prejudicial to appellant. It will be recalled that appellant Cecil had set the tree afire, but he testified that he extinguished the fire and that he passed the tree the next morning and it was not burning at that time. Whether it was at 10:00 a.m. or 12:00 noon that Buck Smedley saw Cecil a mile and a half south of the fire is not material, and defendant was not prejudiced by the testimony of Jennie Mae Smedley.

Appellant argues other points, all of which we have examined, but we find no error.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Universal C.I.T. Credit v. Evans Corp.
    5-2445
    350 S. W. 2d 606
    Opinion delivered November 6, 1961.

      Wright, Lindsey, Jennings, Lester & Shults and Philip S. Anderson, Jr., for appellant.

      Cole & Scott, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a Chancery Court’s award of a sum of money interpleaded by an intervenor in a chattel mortgage foreclosure action.

In March of 1955, appellee J. M. Evans sold to E. K. Weise and James Westbrook his business known as Saline County Motors. To enable Weise and Westbrook to make this purchase, appellees J. M. Evans and Ivy G. Evans, his wife, permitted Weise and Westbrook to execute a chattel mortgage on the property sold. The mortgage covered “all parts and accessories, all office furniture and fixtures, all accounts receivable and all notes receivable, all other appurtenances now on hand, all used automobiles, all used trucks or rolling stock, all used farm machinery, and new farm machinery.” Attached to and mentioned in the mortgage was a list of some of the property that it-was intended the mortgage should cover. The mortgage also provided “that the mortgagors shall have the right to collect said notes and accounts and sell of the above described property and any hereafter acquired property in the usual retail trade and that any such property hereafter acquired shall also be covered by this mortgage and also notes and accounts receivable or renewals thereof shall also be covered by this mortgage with the right to sell and collect the same as above stated,” (i.e. usual retail trade).

On June 1, 1960, Weise and Westbrook had become heavily indebted to appellant, Universal C. I. T. Credit Corporation. In order to recover this deficit, Weise and Westbrook executed to Universal C. I. T. Credit Corporation an assignment of factory credits due or to become due them from International Harvester Company. This assignment was made without any discussion as to the amount of credits due Weise and Westbrook from International Harvester. At the time the assignment was made, International did not owe Weise and Westbrook the fund in question in this appeal. The assignment included “all credits which are now or may hereafter become due to the undersigned (Weise and Westbrook) from International Harvester Company any of its subsidiaries or affiliates in connection with undersigned’s acquisition of new cars, parts and accessories . . .”

On August 10, 1960, Weise and Westbrook sent appellee J. M. Evans the key to the business building along with a letter telling him that all his mortgaged parts, accessories, office equipment and fixtures were in the building.

On August 12, 1960, appellees, J. M. Evans and Ivy G. Evans filed a complaint for foreclosure in the Chancery Court of Saline County, Arkansas, seeking to foreclose on the mortgage executed to them by Weise and Westbrook in 1955 and have a receiver appointed to inventory and preserve the assets covered by the mortgage.

On or about August 17, 1960, International Harvester Company, after negotiating with Weise and West-brook (mortgagors), bought from them certain automobile and truck parts for which it agreed to pay the sunn of $4,789.20. The money from this sale is the money involved in this appeal.

On August 18, 1960, a hearing was held in the Saline-County Chancery Court at which time a receiver was appointed to inventory and take charge of and preserve the assets covered by appellees’ mortgage.

On August 22, 1960, the receiver made demand upon International Harvester Company for payment of the .$4,789.20 owing for the parts it had bought.

On September 23, 1960, International Harvester Company filed its intervention and Bill of Interpleader in the Saline Chancery Court paying into the registry .of the court the $4,789.20 due on the parts. Both appellant and appellees filed an Answer to the Intervention claiming the money in question — appellees ’ by reason of their mortgage, and appellant’s by reason of its assignment.

On November 21, 1960, a hearing was held in the Saline Chancery Court on the Intervention and Bill of Interpleader at which time the court found that the money owed by International Harvester and deposited into the registry of the court should be paid to appellees (or the receiver) as the same was covered by their mortgage and not covered by appellant’s assignment.

From this final order, Universal C. I. T. has appealed.

For reversal, three points are urged. Appellant’s first point contends that the mortgage from Weise and Westbrook to appellees violated the Bulk Sales Act (Ark. Stats. § 68-1501, 1957 Repl.).

Appellant did not offer to prove that the Bulk Sales Act was not complied with. Since this is a case of first impression in this State relative to the burden of proof under the Bulk Sales Act, we agree with and adopt as our own the general rule as set out in 37 C. J. S. Fraudulent Conveyances § 498, as follows:

‘ ‘ The burden of proof is on one who seeks to" set aside a sale of merchandise as in violation of the bulk sales statute to bring himself and the transaction strictly within its provisions. Thus, he must show that at the time of the transfer he was an existing creditor and entitled to a compliance with the provisions of the statute. ’ ’ (Also see Singletary v. Morris Candy Co., 129 Ky. 556, 112 S. W. 637, and Whittington v. Yazoo Delta Mortgage Co., 148 Miss. 861, 114 So. 752.)

Appellant’s second and third points urged for reversal are so interwoven they will be discussed together. They contend that: The Chattel Mortgage in favor of appellees does not extend to factory credits; and, that the mortgage is a fluctuating mortgage on a stock of goods and as such it is void as to appellant.

“Fluctuating” or “open-end” mortgages have long been held to be valid as between the parties. Lund v. Fletcher, 39 Ark. 325 (1882); Soule v. First National Bank of Ft. Smith, 202 Ark. 326, 150 S. W. 2d 204. Of course the thing that makes them void as to third parties is the authority given to the mortgagor to sell the property, Coffman v. Citizens’ Loan and Investment Co., 172 Ark. 889, 290 S. W. 961. This appears to be a logical rule. It permits one wishing to buy mortgaged property in the tbsual course of trade to look at the mortgage and see that the mortgagor has the right to sell it under the mortgage. Such a third party as this is certainly entitled to such a protection. But this is not the situation of the case at bar. Here we have a mortgage given on the property with the mortgagor having the right to sell this property in the usual retail trade. If International had bought in the usual retail trade and if appellant had received its assignment in the usual retail trade, then appellant would be entitled to the protection intended by the rule against fluctuating mortgages. However, Universal C. I. T. Credit Corporation is not in this position.

As we view the matter, Universal C. I. T. took this assignment, which came into being through a wholesale transaction, to secure a pre-existing account in the course of its business of lending money and not in the course of retail trade of Saline County Motors. This being true, we have no choice but to agree with the learned Chancellor that the funds here in question were covered by appellees ’ mortgage and were properly awarded to him.

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    Evans v. Weise.
    5-2528
    350 S. W. 2d 616
    Opinion delivered November 6, 1961.

      Cole <& Scott, for appellant.

      O. Wendell Hall, Jr. and Joe E. Purcell, for appellee.
   Neill Bohlinger, Associate Justice.

This is an appeal from the Saline Chancery Court from a judgment against the appellants and their bondsman in favor of the appellees for $38,600.00 damages.

'On March. 28, 1955 the appellant, J. M. Evans, sold to the appellees an automobile-truck-farm equipment business which the appellant was operating in Saline County and which the appellees purchased by making a down payment and executing a note in the sum of' $43,965.60 for the balance of the purchase price which note was secured by a mortgage on ‘all parts and accessories, all furniture and fixtures, all accounts receivable and all notes receivable, all used trucks or rolling stock, all used automobiles, all new and used farm machinery which were a part of the business which was known as Saline County Motors.’

The note given by appellees was payable at the rate of $366.38 per month and appellees met all monthly payments and in addition, rented the building from appellant wherein the Saline County Motors was housed for a sum of $300.00 per month which was duly paid.

The business of the appellees on June 1, 1960 appears to have been in financial difficulties and the appellant and appellees discussed the matter of liquidating the business and paying the creditors, including the appellant who claimed a balance of $21,250.04 on the note and mortgage given by appellees in the purchase of the business.

The matter of liquidating appears to have been discussed by the partner appellees and on June 2, 1960 they advised their suppliers, Chrysler Corporation and The International Harvester Company, of their intention to cancel their dealership contracts and proceeded further with the liquidation of the business by disposing of assets, including accounts receivable which the appellant claims were covered by his mortgage.

Finding that the proceeds from the disposal of the assets were not finding their way into the bank, the appellant, on June 13, I960,- asked for and obtained a temporary restraining order to conserve the assets of the partnership. On June 15, 1960, the appellees moved to dissolve the temporary injunction and after a hearing on June 18, 1960, the chancellor granted the prayer of the appellees and dissolved the injunction.

The appellees moved in the chancery court for the impaneling of a jury to assess the damages to which they felt they were entitled by reason of the. temporary injunction. On December 8, 1960, the chancellor impaneled a jury for that purpose and after hearing testimony, the jury found for the appellees, E. K. Weise and James Westbrook, in the sum of $38,600.00 damages against the appellant. The chancellor adopted the finding of the jury and entered a decree pursuant to such jury finding, awarding damages to the appellees against appellant in the sum of $38,600.00.

To reverse that decree, the appellant presents among others, the following point:

“Point 1 — The Chancery Decree Awarding Judgment of $38,600.00 was Error
1-A — A Question of Fact, to be Tried De Novo, is Presented on Appeal
1-B — The Damages Awarded are not Supported by any Substantial Evidence
1-C — The Damages Awarded are Crossly Excessive”.

With appellants’ Point 1, we agree and the case is here and now considered de novo, § 32-307 Ark. Stats. (1947) Anno., is as follows:

“Assessment of damages upon dissolution of injunction or restraining order. — Upon the dissolution in whole or in part of any injunction or restraining order of any and every kind and nature whatsoever, the chancery court wherein the same was pending may assess and render against principal and sureties on the injunction bond a valid judgment for any and all damages occasioned by the issuance of such injunction or restraining order; and the court may either appoint a master to report as to such damages, or may render summary judgment therefor, or at its discretion may cause a jury to be empaneled to find such damages. [Civil Code, § 320 (1st sentence); Acts 1915, No. 102, § 1, p. 389; C. & M. Dig., § 5822; Pope’s Dig., § 7538.] ”

In Sullivan v. Wilson Mercantile Co., 172 Ark. 914, 290 S. W. 938, this court said:

"It may be first said that the verdict of a jury in a chancery case is advisory to, but not binding on, the court. Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049. But, inasmuch as the decree was rendered in accordance with the verdict of the jury, it must be assumed that the court coincided with and concurred in the finding of the jury, and that the verdict indicates what his own finding would have been, had he passed upon the question originally without the intervention of a jury.”

See also Hinkle v. Hinkle, 55 Ark. 583, 18 S. W. 1049 and Magnolia v. Davies, 188 Ark. 19, 64 S. W. 2d 85.

Since the chancellor has made the finding of the jury his own finding, he will of necessity be credited with the soundness and be charged with the fallacies of the logic and conclusions that entered into the jury finding. It appears from this record that the jury took the view that since the temporary injunction, which was dissolved as being without equity, was responsible for the closing of the business, the measure of appellees’ damages was the combined sums of the debts of the business. With this we do not agree.

The record inflects that the business was, as one of the appellees stated, "a losing proposition,”; that in almost five years of operation the business had operated at a loss with the exception of one year; that appellees were constantly in financial difficulty; that in 1959 they had issued a check for more than $6,000.00 without the money to secure payment of the check and they had importuned the appellant to help them in their difficulty. This the appellant did by getting the bank to hold the check and endorsing the note of the appellees in the sum of $6,000.00, and a major portion of such note still remains unpaid. The appellees were confronted with the same situation just prior to June 1, 1960 and again besought the appellant to help them in their difficulty, but this the appellant declined to do and suggested to the appellees that they might more advantageously liquidate their business then than later on and, that according to the figures of appellees, they could liquidate and pay all their debts and have something over.

The appellees, as partners, appeared to have discussed this suggestion and knowing more of the status of their business than any other person, they decided the course was a wise one and the decision to liquidate the business was made by them. To that end they severed their connection with their suppliers and proceeded to hypothecate and to dispose of assets. Prom that point on, the Saline County Motors was not a going concern and any conclusion to the contrary is not based on the clear reading and the implications to be found from the record. The giving of checks against an inadequate balance at the bank, borrowing money to cover checks, disposing of assets, transferring of accounts receivable which might have been construed as being covered by the mortgage held by appellant, are not the earmarks of a prosperous, going business but speak most eloquently of a business that is ready for liquidation.

There is nothing in the record before us that would indicate that the injunction either accelerated or retarded the dissolution which the appellees had themselves initiated. We are not confronted here with the problem of a successful business whose orderly progress is disrupted by an injunction and the standing of which, as a going concern, might have been adversely affected. There is no showing that the final liquidation of the business would have been any more profitable to the appellees had the injunction not been granted in the first place.

The appellees had the same assets at the end of the five days during which the temporary injunction was in force that they had at the issuance of such injunction and the idea that the appellees would have fared better had the injunction not been issued is based on pure conjecture, — there is no proof on that point. Neither do we find that the injunction revealed to. the public any facts which the creditors and trading public were not entitled to know and we thus find that no damages after the dissolution of the injunction have been shown.

The temporary injunction was in effect for a period of about five days which included four working days. We have carefully read the case of Citizens’ Pipe Line Company v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017, and the cases cited, but that case is not controlling here. In the Citizens’ Pipe Line case a temporary injunction was made permanent. Such is not the fact in the case before us. As to whether or not the damages arose during the five-day period the temporary injunction was in effect, whether they arose after that time, or whether damages stemmed from the issuance of the injunction and were suffered at a later date, we need not be concerned here. For taking the testimony from the hour the temporary injunction was issued to the date of the entry of the judgment, we find nothing that will sustain an award of $38,600.00 in damages.

There is some fragmentary evidence that during the life of the temporary injunction a prospective customer had made inquiry as to the price of a piece of equipment and that some job work was lost but these losses, for which appellant is liable, do not exceed $600.00.

For the reasons herein stated, the decree of the chancellor is reversed and this cause is remanded with directions to enter a decree against the appellant and in favor of the appellees in the sum of $600.00 and the appellees will recover their costs, both in the trial court and here.


author: Per C.uriam.

text:
    Connelly v. State.
    5007
    350 S. W. 2d 298
    Opinion delivered November 6, 1961.
    (Original opinion delivered September 18, 1961, 233 Ark. 826.)
   Per C.uriam.

On September 18, 1961, this Court rendered its opinion affirming the conviction of the appellant; and in due time appellant filed Petition for Rehearing. On October 18, 1961, while the Petition for Rehearing was pending, the appellant filed in this Court her petition for leave to file in the Garland Circuit Court a Petition for Writ of Error Coram Nobis. The germane portion of said Petition reads: Appellant, in the past two weeks, has received reliable information that the Jury which convicted her of manslaughter in the Circuit Court of Garland County, Arkansas, on September 22, 1960, decided its verdict by lot in that the number of years suggested by each individual juror were totalled and divided by twelve in order to fix the length of the sentence imposed on Appellant by the Jury. Under Section 43-2204 of the Arkansas Statutes it will be necessary that said jurors be examined so as to determine the validity of said verdict.”

Supporting the said petition are the affidavits of the appellant and two other persons to the effect that J. M. Thompson, who claimed to be a juror in the trial of Mrs. Bonnie Connelly in the Circuit Court of Garland County, had stated in the presence of the affiants that the jurors wrote “down the number of years from 0 to whatever each of them thought she should have and that they would add these together and the total amount would be divided by 12 and that this would be their verdict and they would be bound by it.” This alleged statement by Thompson was made after our opinion of September 18, 1961. It is claimed that these affidavits show that the verdict of guilt was reached by lot; and, for that reason, the appellant desires leave to file a Writ of Error Coram Nobis.

These affidavits do not show that the verdict against Mrs. Connelly was reached by lot. The worst that can be said of the verdict is that it was a quotient verdict, and not a verdict reached by lot. It is only in a case of a verdict reached by lot that a juror may be heard to impeach his verdict (§43-2204 Ark. Stats.). The difference between a quotient verdict and a lottery verdict is clearly stated by Mr. Justice Humphreys in Speer v. State, 130 Ark. 457, 198 S. W. 2d 118:

“Lastly, it is urged that the verdict of the jury was determined by lot. Lot involves an element of chance. The quotient verdict is not the result of a lottery. It is a certain result ascertained by adding twelve separate amounts together and dividing the sum total by twelve. Only one result can be reached. It would be a lottery if twelve different amounts were placed on separate slips of paper and one slip then drawn out, which by agreement would become the verdict.”

Other cases to the same effect are: Snow v. State, 140 Ark. 7, 215 S. W. 3; Steed v. Wright, 179 Ark. 812, 18 S. W. 2d 340; St. Louis-San Francisco Rwy. Co. v. Steele, 185 Ark. 196, 40 S. W. 2d 628; Patton v. State, 189 Ark. 133, 70 S. W. 2d 1034; Martin v. State, 189 Ark. 408, 72 S. W. 2d 539; Coca-Cola Bottling Co. v. Davidson, 193 Ark. 825, 102 S. W. 2d 833; and Kennedy v. Griffin, 195 Ark. 379, 112 S. W. 2d 644.

The Petition for Leave to File a Writ of Error Coram Nobis is denied; and the Petition for Behearing is likewise denied.

       No such petition may be filed in the Trial Court without leave of this Court when the ease has been before us on appeal. State v. Hudspeth, 191 Ark. 963, 88 S. W. 2d 858.


text:
    Duncan v. Malcomb.
    2487
    351 S. W. 2d 419
    Opinion delivered November 13, 1961.
    [Rehearing denied December 18, 1961.]

      J. B. Reed, for appellant.

      W. M. Lee, for appellee.
   Carleton Harris, Chief Justice.

On September 17, 1957, R. H. Duncan and Vivian Duncan, his wife, owners of certain lands in the southern district of Prairie County, and which embraced a body of water known as Horseshoe Lake, entered into a lease contract with W. S. Malcomb, appellee herein. The term of the instrument was for ten years from January 1,1958, with an optional renewal right for a period of ten years. Appellee entered into possession of the lands on January 1, 1958, and has continuously occupied same since that time. The agreement set the rental for the premises at $200 per year, payable annually on January 1 of each year, and allowing a grace period of thirty days. The lease provided for the forfeiture of possession by appellee upon his failure to pay rent when due.

In 1958, Malcomb paid $100 on the rent in January, but did not pay the other $100 until the latter part of November, and in 1959, he paid the full rent of $200 in the middle of July. In the latter part of March, 1960, Duncan sent word to Malcomb to come to his store in Biscoe, and appellee arrived at the store on March 30th. According to Duncan, he demanded his 1960 rent, and appellee replied that he did not have it. This appellant then told appellee that he had already waited three months, and was declaring the lease null and void. Duncan then handed Malcomb a written notice declaring the lease cancelled. Appellee testified that no demand for the rent was made by Duncan on the occasion of going to the store. “That was the first time that I had saw Mr. Duncan in the year 1960 and when he told me that he was going to forfeit the lease, he did not ask me anything about the money at all. He asked if the boy was going to move the boats back down there and I told him they would on Friday and he told me he was going to forfeit the lease. ‘Here it is the middle of March and I have not received my money yet.’ ” Malcomb left the store, obtained the money, and according to his evidence, returned to the store, but Duncan had left. He then took the full amount of money to Mrs. Duncan, who, so he stated, accepted it, and said that she would later give him a receipt. This testimony was disputed by Mrs. Duncan, who testified that she simply took the money as an accommodation to Malcomb, and explained that she would see her husband and find out what he “wants to do about it.” She stated that her husband would not accept the money, and she so advised Malcomb, but the latter told her “let the old man cool down”, and “keep it until morning”, but that Malcomb did not return.

Suit was instituted by appellants in the Prairie County Chancery Court praying that the lease contract be declared breached by the appellee; that same be declared null and void, and that Malcomb be ordered to vacate the premises and deliver possession to appellants. Malcomb answered asserting that the 1960 rent had been paid, and by amendment to his answer, pleaded estoppel, ‘‘ That lessor on several occasions by words and conduct, told lessee that he was behind him one hundred percent in the development of the leased premises and for him not to worry, and other words and actions to that effect, led lessee to believe that he would not enforce a forfeiture provided for in lease and therefore plaintiff is equitably estopped from seeking to avail himself of a forfeiture for the non-payment of rent as provided for in the lease.” On hearing, the complaint was dismissed, the $203 on deposit in the registry of the court ordered paid to Duncan, and a decree entered accordingly. From such decree, comes this appeal.

While the trial court did not give its reason for dismissing the complaint, such action was apparently based on a finding that Duncan, by his conduct, waived the requirement for prompt rental payments, and was therefore not entitled to the forfeiture (at least, that is the contention advanced and strongly argued by appellee). Of course, it is elementary that equity abhors forfeitures, and in one of our more recent cases, Vernon v. McEntire, 232 Ark. 741, 339 S. W. 2d 855, we quoted from 1 Pomeroy Eq. Jur. 452, as follows :

“If there has been a breach of the agreement sufficient to cause a forfeiture, and the party entitled thereto either expressly or by his conduct waives it or acquiesces in it, he will be precluded from enforcing the forfeiture, and equity will aid the defaulting party by relieving against it, if necessary.”

In the cause before us, Malcomb testified that in December, 1957, he told Mr. Duncan that he would have to borrow the money to pay the first rent, and that Duncan told him not to worry about it; “he was behind me one hundred percent on that thing, just so I got the money paid, not to worry about it being paid on the first day. The second year came up and the same story. We had a conversation and he repeatedly told me not to worry about that, pay it when I could.” Appellee contends that Duncan waited until he. (appellee) had made valuable improvements on the property, and then deliberately declared the forfeiture in order to gain repossession of the improved premises. Duncan denied both the testimony and contention of Malcomb, stating that he was only interested in obtaining his rent, and had frequently made demand for same.

Irrespective of the testimony by the parties, we think the conduct of Duncan clearly establishes that he waived prompt payment of the rent. Admittedly, he accepted the 1958 and 1959 rent from seven to eleven months late, including interest for the latter year. In Pierce v. Kennedy, 205 Ark. 419, 168 S. W. 2d 1115, this court quoted from § 894 of the chapter on Landlord and Tenant, 32 Am. Jur., page 757 as follows:

“A court of equity, even in the absence of special circumstances of fraud, accident, or mistake, may relieve against a forfeiture incurred by the breach of a covenant to pay rent, on the payment or tender of all arrears of rent and interest by a defaulting lessee. The grounds upon which a court of equity proceeds in this connection are: That the rent is the object of the parties, and the forfeiture only an incident intended to secure its payment ; that the measure of damages is fixed and certain; and that when the principal and interest are paid, the compensation is complete. This relief may be granted where there is a mere power of re-entry, and it has been granted in various situations.

Of course, the fact that Duncan had previously accepted late payments of the rent, did not preclude him from enforcing the forfeiture provision contained in the lease, in the future, provided that he first gave reason able notice to appellee of Ms intention to cancel the lease if the rent were not paid on time.

In 31 ALR 2d 377, we find: “Where a lessor, for several rent installment periods, consistently with a set-led course of dealing, accepts overdue payments of rent without warning or notice to the lessee of objections to tardiness, he cannot summarily terminate the lease for such default even though the right to do so is granted by the terms of the lease, and the lessee is entitled to appropriate relief in a proceeding to enjoin termination of the lease therefor and the lessor from taking possession of the premises.” Quoting further: “Although a lease specifically gives the lessor the right to declare a forfeiture of the term for nonpayment of rent when due and provides that the lessee waives his right to notice of an election by the lessor to do so, a settled course of dealing whereby rent is accepted on or before the tenth of the month instead of on the first, as provided by the lease, can be construed only as a waiver by the lessor of his right to prompt payment, and he cannot predicate a forfeiture upon failure to pay on the first without first having notified the lessee that thereafter strict conformance in the matter will be expected.”

It is undisputed that no notice was given to Malcomb that Duncan expected prompt payment of the 1960 rent. In fact, both parties agreed that the 1960 rent had not been discussed prior to March 30th. It is noticeable, that Duncan, in sending word to Malcomb that he wanted to see him, did not state that he would be expecting the payment of the rent. It is also noteworthy that Duncan already had his written notice prepared to give to Malcomb before the latter arrived. This lends credence to appellee’s statement that no demand was made on that occasion, but only a demand for the repossession of the lands.

In accordance with the reasoning herein set out, we are unable to say that the Chancellor erred and the decree is, in all things, affirmed.

       The amount given Mrs. Duncan was $203, the $3.00 being given voluntarily by Malcomb as interest. Three dollars interest had also been paid voluntarilv by Malcomb on the 19'9 rent. The $203 was subsequently placed in the registry of the court.

         The property eoncededly had been improved, though the extent of the improvements or cost of same is not in the record.

        Milbourn v. Aska, 81 Ohio App. 79, 77 N.E. 2d 619.

         Donovan V. Murphy, 217 Ill. App. 31.