author: John A. Fogleman, Justice.

text:
    Suzanne Marie CARROLL, Mother and Next Friend of Tammy Johnette JOHNSON and Jason Robin JOHNSON, Minors, v. Sammy JOHNSON
    77-292 & 77-293
    565 S.W. 2d 10
    Opinion delivered April 24, 1978
    (Division II)

      Shackleford, Shackleford & Phillips, for appellant.

      Keith, Clegg & Eckert, for appellee.
   John A. Fogleman, Justice.

These two appeals are consolidated by us because they involve the same legal questions relating to changes of the names of Jason Robin Johnson in 77-292 and of Tammy Johnette Johnson in 77-293. Both of them are minor children, now aged seven years and thirteen years, respectively, of Suzanne Marie Carroll and Samuel W. Johnson, who were divorced sometime prior to November 22, 1972, when the mother married Dr. Peter J. Carroll. By separate ex parte petitions Mrs. Carroll, as mother and next friend of the respective minor children, asked that their names be changed to Robin Johnson Carroll and Tammy Johnette Carroll, respectively. Dr. Carroll joined in both petitions. It was alleged in each of them that the minor children had been cared for and supported by Dr. Carroll since he married the mother and that Samuel Johnson, the father, had failed and refused to support them. Both petitions were filed on February 8, 1977. Separate orders granting the prayer of each petition was filed on the same date, both reciting that the petition was heard on the preceding day. The only appearances noted were those of the petitioners and their attorneys. No notice was given to the father.

Subsequently, Samuel W. Johnson filed a motion in each proceeding to set aside the order previously entered, alleging that he had performed such obligations as he had for the support of the child involved and had been in constant communication with the child and its mother, that a proceeding for the adoption of the child had been filed in January, 1977 and heard on April 13, 1977, and that he had received notice of this proceeding and had been in constant communication with Mrs. Carroll and her attorney during the pendency of that proceeding but had not been given any notice whatever of the petition for change of name. He asked that the order in each case be set aside for three reasons, i.e.: want of notice to him; on account of the falsity of statements in the petition; and because the change was not in the best interest of the minor. He asserted that the entry of the orders without notice to him deprived him of due process of law under both the state and federal constitutions.

Mrs. Carroll, as mother and next friend of each of the minors, responded in both cases, denying the allegations of appellee’s motion and asserting that appellee was not entitled to notice, that appellee had no standing to challenge the order of the court because he was not a party to the proceeding, and that appellee had not alleged or made a prima facie showing of a meritorious defense. The chancery court held that due process oflaw entitled a natural parent to notice of the filing of a petition to change the name of his minor child and that, according to the opinion in Clinton v. Morrow, 220 Ark. 377, 247 S.W. 2d 1015, notice to a noncustodial parent and trial on the merits on such a petition is contemplated. On this holding, the orders were set aside.

Appeals were taken by Mrs. Carroll, as mother and next friend, on the grounds that due process of law does not require notice of the filing of a petition for name change of a child to its non-custodial parent, that the non-custodial parent cannot invoke due process notice requirements without showing that he was prevented from asserting a defense to the court’s action by lack of notice and that appellee had neither alleged nor made a prima facie showing of a meritorious defense to the name changes. We agree with the chancery court and affirm.

Appellant correctly states that Ark. Stat. Ann. § 34-801 et seq (Repl. 1962) relating to proceedings for change of name, requires no notice and that we said in Clinton v. Morrow, supra, “We have no statute requiring the consent of both parents to change the name of an infant.” Upon those premises, appellant concludes that a father, living separate and apart from a mother, paying no child support, and seldom exercising his bare right of reasonable visitation is entitled to no notice. Appellant also argues that there is no reason for requiring notice to one whose consent is unnecessary and over whose objection the change can be granted.

Little attention need be given the statute, for it is, as we held in Clinton v. Morrow, supra, merely in affirmation and aid of, and supplementary to, the common law rule that one may ordinarily change his name at will, without any legal proceedings, merely by adopting another name, that the right is not limited by the ordinary rules of minority and that the statute only affords another method of doing so. But the failure of the statute to require notice in a case such as this is no answer to the due process argument. It could, at the most, constitute a legislative determination that notice was not essential to due process, and in the case of the change of name of an adult, it probably would not be. The legislature cannot dispense with notice, where notice and hearing are necessary to afford constitutional due process. Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 ALR 238 (1931 ).

It seems clear to us that a natural father has standing to challenge a proposed change of name of his minor child. This right has been widely recognized. See In re Larson, 81 Cal. App. 2d 258, 183 P. 2d 688 (1947); Application of Trower, 260 Cal. App. 2d 75, 66 Cal. Rptr. 873 (1968) and cases cited. The annotator in an annotation at 53 ALR 2d 914, et seq, has correctly and concisely stated the prevailing rule, viz:

The courts have generally recognized that the father has a protectible interest in having his child bear the parental surname in accordance with the usual custom, even though the mother may have been awarded custody of the child.

The paternal right has been denominated in various terms. It has been called: a natural right, West v. Wright, 263 Md. 297, 283 A. 2d 401 (1971); Worms v. Worms, 252 Cal. App. 2d 130, 60 Cal. Rptr. 88 (1967); DeVorkin v. Foster, 66 N.Y.S. 2d 54 (1946); Application of Baldini, 17 Misc. 2d 195, 183 N.Y.S. 2d 416 (1959); a fundamental right, Young v. Board of Education of City of N.Y., 114 N.Y.S. 2d 693 (1952); a primary or time-honored right, Application of Shipley, 26 Misc. 2d 204, 205 N.Y.S. 2d 581 (1960); Schoenberg v. Schoenberg, 57 N.Y.S. 2d 283 (1945), aff’d. 59 N.Y.S. 2d 280, aff’d. 296 N.Y.S. 583, 68 N.E. 2d 874; In re Larson, supra; a common law right, Application of Trower, supra; a protectible interest, Robinson v. Hansel, 302 Minn. 34, 223 N.W. 2d 138 (1974); Ouellette v. Ouellette, 245 Or. 138, 420 P. 2d 631 (1966); Ex parte Taylor, 322 S.W. 2d 309 (Tex. Civ. App., 1959); and even a iegal right, Steinbach v. Steinbach, 119 N.Y.S. 2d 708 (1953). Although there are jurisdictions in which it has been held that the father’s right is not absolute, he is still accorded the right to a hearing and to protection against a change of the name of his minor child in a proper case.

Even if we did not recognize the father’s standing to challenge the change of his minor child’s name in Clinton, we do so now. Regardless of the way in which the father’s right may be characterized, we have no hesitation in holding that it is basic and fundamental that he has a protectible interest in his child’s name. The interest has been protected in various ways when a father objects to a change, even by injunction against an informal name change by the mother having custody. See e.g., Sobel v. Sobel, 46 N.J. Super. 284, 134 A. 2d 598 (1957); Montandon v. Montandon, 242 Cal. App. 2d 886, 52 Cal. Rptr. 43 (1966); Kay v. Bell, 95 Ohio App. 520, 121 N.E. 2d 206 (1953); Application of Hinrichs, 41 Misc. 2d 422, 246 N.Y.S. 2d 25 (1964); De Vorkin v. Foster, supra; Mark v. Kahn, 333 Mass. 517, 131 N.E. 2d 758, 53 ALR 2d 908 (1956).

There is a split of authority on the question whether failure to give a non-custodial father notice of a proceeding to change the name of his minor child violates due process. In Georgia it has been held that it does not. Fulghum v. Paul, 229 Ga. 463, 192 S.E. 2d 376 (1972). See also, Laks v. Laks, 25 Ariz. App. 58, 540 P. 2d 1277 (1975). In Texas, it has been held that it does. Scucchi v. Woodruff, 503 S.W. 2d 356 (Tex. Civ. App., 1973); Eschrich v. Williamson, 475 S.W. 2d 380 (Tex. Civ. App., 1972). The holding in Texas seems to have resulted, at least in substantial part, from Armstrong v. Manzo, 380 U.S. 545, 85 S. Ct. 1187, 14 L. Ed. 2d 62 (1965). In Armstrong, it was held that due process of law requires notice of a pending adoption to a non-custodial parent. The United States Supreme Court in that case held that, where the result of the judicial proceeding could permanently deprive a legitimate parent of all that parenthood implies, due process requires notice reasonably calculated to apprise interested parties of the pendency of the action and an opportunity to present their objections. That court said that failure to give the father in that case notice of the pending adoption proceedings violated the most rudimentary requirements of due process. See also, Olney v. Gordon, 240 Ark. 807, 402 S.W. 2d 651.

The due process clauses of both the Arkansas and United States constitutions afford protection against deprivation of life, liberty or property. Neither an adoption nor a change of name of his child would deprive a divorced father, who does not have custody of the child, of life or liberty or property, if the words are narrowly or strictly construed, in a technical sense, as appellant reads them. Obviously, they were not so construed in Armstrong. The right of parenthood was there recognized as a right protected by the due process clause of the Fourteenth Amendment to the United States constitution. Our due process clause is not significantly different. See Art. 2, § 8, Constitution of Arkansas. But the result reached by the Texas court was not mandated by Armstrong, and the Texas court’s result was based not only on that case but upon a reading of the Texas constitution’s due process clause, the words of which protect privileges and immunities as well as life, liberty and property. The move from Armstrong to the Texas position or to the position taken by the trial court requires further analysis. In order to determine whether due process required notice in these cases, we must first consider the nature of the right involved, and then consider whether a right of that nature comes under the “life, liberty or property” umbrella.

The positions of various courts as to names are quite different. There are those taking the position that one’s Christian name given him at birth and the surname of his father or patronymic is his legal name. See Sobel v. Sobel, supra; Kay v. Bell, supra. See also, Application of Trower, 260 Cal. App. 2d 75, 66 Cal. Rptr. 873 (1968). Others say that the succession of the paternal surname is the usual custom. West v. Wright, 263 Md. 297, 283 A. 2d 401 (1971); Application of Shipley, 26 Misc. 2d 204, 205 N.Y.S. 2d 581 (1960).

A name, in addition to furnishing a means of identifying a person, signifies a particular relationship between and among people. Application of Hinrichs, 41 Misc. 2d 422, 246 N.Y.S. 2d 25 (1964). The paternal surname tends to identify the relationship between a father and his children, and it matters little whether the name is bestowed as a matter of law or as a matter of centuries-old custom. The courts should not interfere with the usual custom of succession of the parental surname except under circumstances warranting a change for the best interest of the minor. West v. Wright, supra; Kay v. Kay, 65 Ohio L. Abs. 472, 51 Ohio Op. 434, 112 N.E. 2d 562 (1953). It has been held that a father may not arbitrarily be deprived of-the right to have his children use his surname. Galenter v. Galenter, 133 N.Y.S. 2d 266 (1954); In re Application of Seif, 40 Misc. 2d 596, 243 N.Y.S. 2d 172 (1963). It has also been said that to deprive a child of his father’s surname is a serious and far-reaching action. Application of Zipper, 2 A.D. 2d 756, 153 N.Y.S. 2d 282 (1956).

The change of a minor’s name so that he no longer bears his father’s name has been said to be such a serious matter that it is justified only when it is shown that such a change is required for the welfare of the minor. Lazow v. Lazow, 147 So. 2d 12 (Fla. App., 1962).

It has been recognized that change of a child’s paternal surname may foster an unnatural barrier between father and child and erode a relationship that should be nurtured. West v. Wright, supra; Kay v. Kay, supra. Where the parents of a child are divorced and his mother has his custody, the bond between father and child is tenuous at best, and that bond may be weakened if not destroyed by a change of the minor’s name. Mark v. Kahn, 333 Mass. 517, 131 N.E. 2d 758 (1956). It has been said that such a change would lend aid to the estrangement of father and child, contrary to the best interest of the child, and constitute a step toward complete severance of the father-child relationship. Rounick’s Petition, 47 Pa. D&C 71 (1942); Application of Shipley, 26 Misc. 2d 204, 205 N.Y.S. 2d 581 (1960). See also, Kay v. Kay, supra. Another court has said that allowing a mere custodial parent of a minor to arbitrarily interrupt “the inheritance of a surname is not commensurate with genealogy, history, justice and fairness in the United States.” Montandon v. Montandon, 242 Cal. App. 2d 886, 52 Cal. Rptr. 43 (1966). The threat of erosion, if not complete destruction, of the relationship, to the detriment of the child, has been considered an adequate basis for injunctive relief. Application of Hinrich, supra.

An adverse effect upon the relationship of a father and his child has been held to be a valid ground for a father’s objection to a change of his minor child’s surname and for a court’s refusal to make the change. Lazow v. Lazow, supra; Application of Shipley, supra.

It has been held that a father’s interests are materially affected by a proceeding to change his child’s name, and that a decree changing it is a final determination of the rights of all persons interested. In re Larson, 81 Cal. App. 2d 258, 183 P. 2d 688 (1947). This approaches, even though it does not reach, the permanent deprivation attendant upon adoption. But the step from change of surname, in view of its erosive effect on the parental and filial relationship, may be a short one. Erosion may be destructive, not just damaging. But, before we extend the non-custodial father's protection in adoption, which may be a complete severance of the relationship between father and child, to mere change of surname, which may only tend to erode it, we must decide whether the “life, liberty or property” umbrella gives such extensive coverage. Appellant reads the “due process” clauses of the pertinent constitutions much too narrowly. It has been said of that clause in the Fourteenth Amendment to the federal constitution that it exacts of the states all that is.implicit in the concept of ordered liberty. Wolf v. Colorado, 338 U.S. 25, 69 S. Ct. 1359, 93 L. Ed. 1782 (1949). Elaborating in that case, the court, speaking through Justice F’rankfurtcr, said:

Due process of law thus conveys neither formal nor fixed nor narrow requirement. It is the compendious expression for all those rights which the courts must enforce because they are basic to our free society. But basic rights do not become petrified as of any one time, even though, as a matter of human experience, some may not too rhetorically be called eternal verities. It is of the very nature of a free society to advance in its standards of what is deemed reasonable and right. Representing as it does a living principle, due process is not confined within a permanent catalogue of what may at a given time be deemed the limits or the essentials of fundamental rights.
To rely on a tidy formula for the easy determination of what is a fundamental right for purposes of legal enforcement may satisfy a longing for certainty but ignores the movement of a free society. It belittles the scale of the conception of due process. The real clue to the problem confronting the judiciary in the application of the Due Process Clause is not to ask where the line is once and for all to be drawn but to recognize that it is for the Court to draw it by the gradual and empiric process of “inclusion and exclusion.” *****

It has been said that the terms “life,” “liberty,” and “property” are representative terms and their comprehensive scope embraces “all our liberties, civil, personal and political; in short all that makes life worth living” and that each of these rights “carries with it, as its natural and necessary coincident, all that effectuates and renders complete and full, unrestrained enjoyment of that right.” In re Flukes, 157 Mo. 125, 57 S.W. 545 (1900). The liberty guaranteed by the Fourteenth Amendment includes the right of the individual to marry, establish a home and bring up children and, generally, to enjoy those privileges long recognized at common law as essential to the pursuit of happiness. Meyer v. Nebraska, 262 U.S. 390, 43 S. Ct. 625, 67 L. Ed. 1042, 29 ALR 1446 (1923); Sinquefield v. Valentine, 159 Miss. 144, 132 So. 81, 76 ALR 238 (1931); Danforth v. State Department of Health & Welfare, 303 A. 2d 794 (Me., 1973). See also, Pierce v. Society of Sisters, 268 U.S. 510, 45 S. Ct. 571, 69 L. Ed. 1070, 39 ALR 468 (1924). Clearly the freedom to marry accorded due process protection is basically a personal right. Loving v. Virginia, 388 U.S. 1, 87 S. Ct. 1817, 18 L. Ed. 2d 1010 (1967). It has long been recognized that freedom of personal choice in matters of family life is one of the liberties protected by the due process clause of the Fourteenth Amendment. Cleveland Board of Education v. La Fleur, 414 U.S. 632, 94 S. Ct. 791, 39 L. Ed. 2d 52 (1974). In the case just cited, the LJnited States Supreme Court brought within the coverage of the clause actions which constituted a heavy burden on the exercise of those freedoms.

It has been said that the guaranty of liberty encompasses many personal freedoms including the right to enjoy domestic relations and the privileges of family and home. State v. Cromwell, 72 N.D. 565, 9 N.W. 2d 914 (1943). Parental custodial rights (even of the father of an illegitimate child) come within the protection of the due process clause of the federal and state constitutions. Stanley v. Illinois, 405 U.S. 645, 92 S. Ct. 1208, 31 L. Ed. 2d 551 (1972); Sinquefield v. Valentine, supra; Harloe v. Harloe, 129 W. Va. 1, 38 S.E. 2d 362 (1946). We have indicated that a parent is a necessary party to the appointment of non-parental guardian for custody purposes. Bowles v. Dixon, 32 Ark. 92. In discussing the protection of the parental rights by due process of law the United States Supreme Court said in Stanley.

The private interest here, that of a man in the children he has sired and raised, undeniably warrants deference and absent a powerful countervailing interest, protection. It is plain that in the interest of a parent in the companionship, care, custody and management of his or her children, “come[s] to this Court with a momentum for respect lacking when appeal is made to liberties which derive merely from shifting economic arrangements.”

A parent’s care, custody, management and companionship of his minor children has been called a personal right more precious than property rights. May v. Anderson, 345 U.S. 528, 73 S. Ct. 840, 97 L. Ed. 1221 (1953).

The due process clause, whether federal or state, is not an enumeration of the rights protected and it must be read in conjunction with other clauses in the same constitution in order to determine its coverage. A clause to be read with the due process clause of the Arkansas Constitution is Art. 1, § 2, recognizing the existence of certain inherent and inalienable rights, among which are those of enjoying life and liberty and pursuing happiness. Another is Art. 2, § 29 prohibiting any construction of Art. 2, in which certain constitutional rights are enumerated to deny or disparage others retained by the people. Of course, our “due process of law” clause is part of Art. 2. Among the inherent and inalienable rights protected, when the scope of “life, liberty or property” is thus measured is the right to establish and maintain a home and family relations. Thiede v. Town of Scandia Valley, 217 Minn. 218, 14 N.W. 2d 400 (1944).

Because a change of a child’s paternal surname can be such a burden upon an important family relationship we do not hesitate to hold that a father’s protectible interest in that respect comes within the coverage of the due process clauses of both the state and federal constitutions.

Appellant’s contention that appellee was not entitled to relief, because he did not show a meritorious defense is without merit. Halliman v. Stiles, 250 Ark. 249, 464 S.W. 2d 573; Davis v. Schunmel, 252 Ark. 1201, 482 S.W. 2d 785.

The decree is affirmed.

We agree.

Harris, C.J., and Byrd and Hoi/r, JJ.

      It appears that proceedings for adoption of these children by their step-father were pending and being resisted by this father at the very time the orders for changes of their names were entered without any notice to him.

      In construction and interpretation of our own constitution and arriving at its intent, meaning, and purpose, or the meaning of any part of it, we have always read it as a whole and its various provisions in the light of each other. State v. Hodges, 107 Ark. 272, 154 S.W. 506; Collins v. Humphrey, 181 Ark. 609, 27 S.W. 2d 102; Hopper v. Wolfe, 238 Ark. 932, 385 S.W. 2d 783; State v. Jones, 242 Ark. 168, 412 S.W. 2d 284.

      We have found the words “life, liberty and property” to be broad enough to protect the right of a prostitute to walk or ride on the streets with a male person over the age of 14 years. Coker v. City of Ft. Smith, 162 Ark. 567, 258 S.W. 388 (1924).


source: Caselaw Access Project

license: Public Domain

text:
    Daniel EVANS v. Charlene EVANS and FARM BUREAU INSURANCE COMPANY OF ARKANSAS, INC.
    77-324
    564 S.W. 2d 505
    Opinion delivered April 24, 1978
    (Division I)

      Tiner & Palmer, by: H. C. Palmer, III., for appellant.

      Penix, Penix & Mixon, for appellee and third party defendant.
   John A. Fogleman, Justice.

In a divorce proceeding brought by appellant in which appellee also sought a divorce by counterclaim, she was awarded possession of the dwelling house owned by the parties as a tenancy by the entirety. Both parties were denied a divorce, but appellee was given custody of the three children, $600 per month child support, $400 per month as maintenance and alimony, an automobile, an award of $10,179.53, and possession of all furniture, fixtures, furnishing and. appliances along with the possession of the home. On or about March 19, 1977, the home and the furniture, fixtures and appliances were damaged by fire. Appellant carried an insurance policy with Farm Bureau Insurance Company of Arkansas, Inc., in which he was the named insured. Appellee filed a petition seeking to recover the proceeds of the policy and to enjoin the insurance company from paying the proceeds to anyone other than her. She subsequently amended her petition, asking that appellant be required to apply all proceeds of the policy to rebuild or refurbish the home, or, in the alternative, that he be required to provide and furnish a proper home for her and the children. She also asked that she have the benefit of the policy provisions for temporary living expenses. Later, she again amended her petition to allege that she had paid one-half of the premium on the policy and asked that a constructive trust or equitable lien be imposed upon the policy proceeds for the benefit of her and the children. Still later she amended her petition to ask a divorce, support, maintenance, alimony, costs of suit, attorney’s fees, possession of the home, all the furniture, furnishing and appliances, an automobile and a statutory interest in appellant’s property. Appellant had, prior to the fire, sought a reduction of the support payments required of him, alleging a substantial change in his financial position.

It was stipulated that the land on which the dwelling was located consisted of 15 acres held by the parties as tenants by the entirety, that the Farm Bureau Insurance Company had agreed to pay $22,000 for the fire loss on the contents of the dwelling, and that two reputable contractors had made bids of $42,000 and $35,400, respectively, to restore the damaged house.

The chancery court decree recited that appellant agreed for the third party defendant, the insurance company, to rebuild and restore the home and directed the insurance company to apply the proceeds of the insurance policy to the restoration of the home, held that the wife was entitled to receive the additional living expenses of her children and herself provided for in the insurance policy, and directed the parties to carry out the rebuilding of the home and the replacement of the contents. The court directed that the right of possession of the home be continued. Appellant’s petition for modification of the support payments was denied.

Appellant first contends that the court erred in holding that the insurance proceeds were held by the entirety. We do not interpret the court’s ruling as having so held. Nevertheless, appellee’s testimony that she paid one-half of the insurance premium was not contradicted. She also testified that the insurance company had delivered a check, made payable to appellant and appellee, for the loss, but that appellant refused to endorse it unless the proceeds were divided. Appellant contends that appellee had no right to any of the proceeds of the policy, because, since he was named as the sole “insured” in the policy, the contract was personal with him, that only he could recover on it, and the amount collected did not constitute the proceeds of the property. In essence, he contends that only his interest was insured.

Appellant’s contentions in this regard are really of little significance. The possession of the property had been awarded to the wife as a part of an award of separate maintenance for her benefit and that of the children of the parties, and the court’s decree does nothing more than make that award effective. Appellant further contends, however, that the chancellor erred in requiring appellant to rebuild the house.

Even if the parties had not held as tenants by the entirety, awarding appellee the possession of the homestead of the parties would have been an exercise of the court’s jurisdiction, even though both parties were denied a divorce. Cassell v. Cassell, 211 Ark. 489, 200 S.W. 2d 965. Under these circumstances, the award was in the discretion of the court. As long as the parties are married and the wife has not abandoned the husband without just cause, it is the duty of the husband to support her and his minor children according to the station in life in which they have lived. Stearns v. Stearns, 211 Ark. 568, 201 S.W. 2d 753.

The words “support” and “maintenance” generally import the provision of the necessaries of life, which include shelter, or a suitable place of residence or habitation. Ricci v. Ricci, 96 N.J. Super. 214, 232 A. 2d 709 (1967); Dravecko v. Richard, 267 N.Y. 180, 196 N.E. 17 (1935). Furnishing a house for his wife and children is within a husband’s duty of support. Kearns v. Kearns, 6 N.C. App. 319, 170 S.E. 2d 132 (1969). In allowing support, a court may require the husband to pay mortgage installments, real estate taxes and insurance on a home. Hahn v. Hahn, 40 A.D. 2d 624, 336 N.Y.S. 2d 500 (1972). Where the court has the power to order a husband to provide a home for his wife, it also has the jurisdiction to require him to keep it in repair, and requiring him to do so does not involve any question of property rights. Wilson v. Wilson, 86 N.J. Super. 61, 205 A. 2d 902 (1964). See also, Williams v. Williams, 279 Ill. App. 274 (1935). By the same token, appellant could have been required to carry insurance on the property for the benefit of both himself and his wife. Even though appellant was not required to carry insurance by the previous decree, it was within the power of the court to require the restoration of the damaged house and the replacement of the contents lost, in order to give effect to the award of possession as a part of the support and maintenance of appellant’s wife and children which had been required of him. The damaged house certainly afforded no shelter and the right of occupancy of it certainly would be meaningless. The trial court had the discretion to require appellant to provide adequate comparable housing for his wife and children. Its discretion was certainly not abused by the decree entered.

Appellant also contends that the court erred in not reducing the support payments required of him. The court’s decree had required him to pay $600 per month for the three children and $400 per month for appellee. Appellant's real complaint is that the court took into consideration the fact that appellant had $40,000 invested in certificates of deposit. He says that the court should have considered his income level only. The chancellor actually stated that he was not going to reduce the payment “at this time,” saying that appellant had this $40,000 and that appellant, a farmer, had the current year’s crop coming ip. The chancellor added: “We will just have to see how it developes as the years go along.” We find no abuse of discretion on this score. The cases relied upon by appellant do not. hold, as appellant seems to think, that his income is the only factor, except the situation of the parties in life and their conduct, to be considered in fixing the amount of these payments. Those cases, Lewis v. Lewis, 202 Ark. 740, 151 S.W. 2d 998 and Shirey v. Shirey, 87 Ark. 175, 112 S.W. 369, do not so hold. In Lewis, we said that ability to pay is the foremost consideration. We pointed out that the governing rule required that alimony be so apportioned as to secure the wife the same social standing, comforts and luxuries of life as she would have had, had it not been for the enforced separation, care being taken that it does not amount to appropriation of the entire estate of the husband. That statement of the rule points out that consideration should be given to the financial circumstances of the parties. In Shirey, we said that ability to pay was one of the factors having a bearing on the amount. Nothing was said about the level of income in either case. We cannot say that the chancellor erred by considering appellant’s savings in measuring his ability to pay and in declining to make a reduction without considering the result of his current crop.

Appellant also argues that the court did not give adequate consideration to appellee’s ability to earn, pointing out that she has a high school education supplemented by one and one-half years in a business course at Delta Vocational Technical School and that she was physically able to work and had been constantly employed prior to her marriage. The only factor that could be considered a change of circumstances after the original decree is the business course.

Appellee testified that she lacked three hours of finishing the course, that she was supposed to go back and take tests, and that her textbooks had been destroyed in the fire and she had been unable to replace them. She said that, prior to the fire, she had gone to the employment office every week and that she had gone to every place in Harrisburg and to the social security office seeking employment, without success. She also testified that, subsequent to the fire she had found it necessary to find a place to live, that her clothing and personal items, as well as her children’s, had been lost in the fire. These she had to replace, along with the furniture lost. Mrs. Evans also testified that she had physical, nervous and emotional problems. We find no abuse of discretion in the trial court’s refusal to reduce the support payments, at least until after the results of appellant’s current crop were known.

The decree is affirmed.

We agree.

Harris, C.J., and George Rose Smith and Holt, JJ.

      The facts in this case bring it within the purview of this case rather than that of Walls v. Walls, 227 Ark. 191, 297 S.W. 2d 648, which involved a decree requiring a husband to vacate the homestead held by the entirety, even though he had successfully defended the wife’s divorce action without seeking a divorce. In denying the divorce, the chancellor had held that the wife had no cause for leaving her husband. The decision in Walls turned upon the peculiar facts of the case.


author: Conley Byrd, Justice.

text:
    Willie Audrey MORRIS v. George E. MATTHEWS et ux
    77-321
    564 S.W. 2d 509
    Opinion delivered April 24, 1978
    (Division II)

      Tom Donovan, for appellant.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, for appellees.
   Conley Byrd, Justice.

The pivotal issue in this foreclosure case is whether the conditional contracts of sale used by appellees George E. Matthews and his wife constituted a sale within the terms of a mortgage held by appellant Mrs. Willie Audrey Morris. The trial court ruled that the conditional contracts of sale did not constitute a sale. Appellant appeals raising the issues hereinafter discussed.

The record shows that Vernon and Willie Audrey Morris sold a 20 acre tract of land to A1 Green and his wife for $90,000, $24,000 of which was paid down and a mortgage of $66,000 was given for the balance. Among other things the mortgage provided:

“Mortgagee hereby agrees that the mortgagor may sell any amount of the herein described property at any time provided that the mortgagee shall receive 60% of all cash and 60% of all notes received from such sale; said amounts to be applied toward the principal balance of the note secured by this mortgage. Mortgagee hereby agrees that the mortgagor may remodel any existing structure, build on, or clear any of the herein described property as mortgagor sees fit.”

Appellees purchased the property from the Greens and assumed the mortgage. Appellees have developed the property as a mobile home park by putting in blacktop streets, sewer, water, gas and electricity. There are now 65 lots in the development. Beginning in June 1976, the appellees began entering into conditional contracts for the sale of the lots. Pursuant to these conditional contracts of sale the appellees agreed to sell a specified lot for a sum certain, payable by specified amount down and the balance to be paid with interest, over a period of years. The installment sales contracts provided that when the purchase price was fully paid the appellees would convey title to the purchasers or their assigns by general warranty deed. Further, the contracts provided that in the event of default after 60 days on any payment due under the contract of sale, the appellees had the option to terminate the agreement and all payments thereunder would be regarded as rent. By the terms of the agreement the conditional purchaser went into possession of the lot or at least had the right to take possession.

At the trial on May 2, 1977, the appellees stipulated that they had entered into conditional contracts of sale for 38 lots within the subject property. Pursuant to these conditional contracts of sale, the appellees had received down payments totaling $12,545.00 and monthly payments of principal in the amount of $4,296.49. None of these payments had been paid over to Mr. and Mrs. Morris except the regular $500.00 monthly payment on the original mortgage. The balance of the payments was being used to pay taxes and an unsecured loan for the development of the mobile home park.

Based upon the mortgage clause, we agree with appellant that the conditional contracts of sale constituted a sale within the terms of the mortgage.

It follows that upon remand appellant will be entitled to amend her complaint to add the several conditional purchasers as parties. The rights of the purchasers with respect to appellant’s mortgage are not before us.

Reversed and remanded for proceedings not inconsistent herewith.

We agree: Harris, C.J., and Hickman and Howard, JJ.


text:
    Larry RUTLEDGE v. STATE of Arkansas
    CR 78-7 & CR 78-8
    564 S.W. 2d 511
    Opinion delivered April 24, 1978
    (Division II)

      S. Wooten Epes and Charles P. Allen, for appellant.

      Bill Clinton, Atty. Gen., by: James Smedley, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

In April 1975, appellant Larry Rutledge received a ten year suspended sentence upon two counts of burglary and grand larceny. Subsequently, on June 16, 1977, appellant was convicted by a jury for burglary and theft of property in the same county. The State then served upon appellant a petition to revoke the ten year suspended sentence on the sole basis of his subsequent conviction. The trial court, after taking judicial notice of the conviction on June 16, 1977, revoked the 1975 suspended sentence. For reversal appellant raises the issues hereinafter discussed.

POINT I. Appellant is correct in that Ark. Stat. Ann. § 41-1209 (2) (Repl. 1977), requires the trial court, in revoking a suspension or probation, to prepare and furnish “to the defendant a written statement of the evidence relied on and the reasons for revoking suspension or probation.” The order entered by the trial court does not give a statement of the evidence relied on and the reasons for the revocation. However, since the “Bill of Exceptions” signed by the trial court and approved as to form by the attorneys for the State and appellant shows that the trial court relied upon the June 16, 1977, convictions and that it revoked the suspension based upon the said convictions, it appears that the trialicourthas substantially complied with Ark. -Stat. Ann. § 41-1209 (2) (Repl. 1977). Consequently, we hold appellant’s contention of error without merit.

POINT II. Appellant contends that the trial court erred in revoking the suspended sentence upon the subsequent convictions while those convictions were pending on appeal. Since appellant may lawfully be held in prison upon the subsequent convictions pending appeal — i.e. such convictions are not subject to collateral attack — we must agree with the State that the trial court did not err in revoking the suspension. See Burton v. State, 253 Ark. 312, 485 S.W. 2d 750 (1972), and Alexander v. State, 258 Ark. 633, 527 S.W. 2d 927 (1975). However, should the subsequent conviction be set aside on appeal, appellant may very well be entitled to post-conviction relief. See Alexander v. State, supra, and State v. Guffey, 253 N.C. 43, 116 S.E. 2d 148 (1960).

POINT III. Appellant’s complaint that he did not receive adequate written notice of the time and place of the revocation hearing is not considered by us as it is raised for the first time on appeal. Furthermore, appellant has not even suggested how he was prejudiced by the notice given.

POINT IV. Appellant complains that the trial court should be reversed because it did not grant his request that the proceedings be transcribed by a reporter. Upon the record before us, we find this alleged error to be harmless. The record shows that no evidence was presented and that the trial court, “without objection,” was permitted to take judicial notice of the subsequent convictions — the only fact relied upon to revoke the suspension. Thus, since the only fact relied upon was already a matter of record and about which there could be no dispute, we fail to see how appellant could have been prejudiced.

POINT V. We find no merit to appellant’s contention that upon revocation he was entitled to credit on his ten year sentence from the date of April 10, 1975, until the date of revocation on June 24, 1977. See Minick v. State, 256 Ark. 564, 509 S.W. 2d 289 (1974). It was only the imposition of the sentence that was suspended during appellant’s good behavior and upon the breach of that duty by. appellant, the trial court at that time had the right to impose the ten year sentence, Ark. Stat. Ann. § 43-2332 (Repl. 1977).

POINT VI. Appellant’s contention that the trial court abused its discretion by taking judicial notice of the subsequent convictions has no merit in view of the fact that the “Bill of Exceptions” shows that the trial court’s action was taken without objection.

Neither can we find any merit to appellant’s contention that because of the 5 year limitation in Ark. Stat. Ann. § 43-2331 (Repl. 1977), the trial court abused its discretion in imposing the full ten year suspended sentence. Ark. Stat.. Ann. § 43-2332 (Repl. 1977), specifically provides that in the event of a violation of the probation “. . . the court may revoke the probation and require him to serve the sentence imposed, . . .

Affirmed.

We agree: Harris, C.J., and Hickman and Howard, JJ.


author: Frank Holt, Justice.

text:
    In the Matter of the Estate of Lula S. TORIAN, Deceased and the FIRST NATIONAL BANK OF MEMPHIS, Memphis, Tennessee v. Louise Crum SMITH et al
    77-283
    564 S.W. 2d 521
    Opinion delivered April 24, 1978
    (Division II)

      Heiskell, Donelson, Adams, Williams & Kirsch, Memphis, Tenn., and Jake Brick, for appellants.

      Burch, Porter & Johnson, Memphis, Tenn., and Rieves, Rieves & Shelton, for appellees.
   Frank Holt, Justice.

This appeal results from a conflict of laws with respect to the apportionment and payment of estate taxes. The decedent, Lula S. Torian, age 81, died testate on October 24, 1972, while a resident and domiciled in Arkansas. She was survived by her husband, H. D. Torian. Her will, executed in Mississippi, nominated the appellant, First National Bank of Memphis, to be executor of her estate. The will made no provision as to how the inheritance taxes were to be paid by her estate. The named executor filed a petition in a Mississippi State court on November 3, 1972, to probate the original will and codicils there. The petition alleged that, although the testatrix was a citizen and resident of Crittenden County, Arkansas, she owned no real property in Arkansas and, because she owned approximately 900 acres of land (later valued at $1,000 per acre for tax purposes) in DeSoto County, Mississippi, probate of the will there was necessary and desirable. The petition was granted on the date it was filed and the appellant bank appointed executor. On December 7, 1972, the executor bank filed an inventory of the estate, listing personal property in Mississippi valued at $1,000. It appears the real and personal property located in Mississippi consisted of approximately 59% of the total estate.

On January 23, 1973, the executor filed a petition, which was approved that date, to probate the will in Crittenden County, Arkansas. Attached to the petition was an authenticated copy of her will and codicils together with the Mississippi order admitting the will to probate there. It was requested that the assets of the estate in Mississippi be administered according to the laws in Mississippi and the personal property in Arkansas, valued at approximately $486,-000, be administered according to the laws of Arkansas. Letters testamentary were issued to appellant First National appointing it executor of decedent’s Arkansas estate which was found to consist of personal property valued as stated. The Arkansas probate court further found that it was necessary to probate the will in Arkansas and Mississippi to fully administer the estate and make a proper distribution of the property. The order stated that the assets in Arkansas would be administered according to Arkansas law and those in Mississippi under its law. It appears that the assets in Arkansas comprised approximately 41% of the total estate.

On May 9, 1973, appellant First National filed a petition with the Arkansas court requesting postponement of the filing of an inventory since a question had arisen as to the proper forum for original jurisdiction to probate the will. The court postponed the filing of an inventory until this determination was made. On July 26, 1973, appellant First National, upon the advice of its Mississippi counsel, filed a petition with the Mississippi court for permission to withdraw the original will and transfer it to Arkansas. The petition recited that the decedent owned about 920 acres in DeSoto County, Mississippi, and a residence in West Memphis, Arkansas, with her husband as tenants by the entirety; that an authenticated copy of the will, previously admitted to probate in Mississippi, was afterwards probated in the probate court of Crittenden County, Arkansas; and that the appellant is advised there is some question about the validity of a probate of a will of an Arkansas resident by an authenticated copy rather than by the original. Further, a transfer of the original will was requested for the reason that the decedent’s will and codicils recite that she was a resident of Arkansas at the time of her demise in Arkansas, and she was married to an Arkansas resident and resided with him on property jointly owned by them in Arkansas. The several specific or residuary legatees (Tennessee residents except one), the appellees here, and the specific devisees of the 920 acres in Mississippi (Mississippi residents) were made respondents. The executor requested that process issue requiring respondents to show cause why the original will should not be withdrawn from the Mississippi court for the purpose of filing it in the pending proceeding in the Arkansas probate court. The residuary legatees answered and joined in the executor’s petition. The specific devisees of the Mississippi lands answered controverting the petition to withdraw the original will.

By cross-bill against the executor, the specific devisees of the 920 acres sought an accounting and the payment of the federal estate taxes by allocating the burden of the taxes pursuant to the laws of Mississippi. The appellant executor, the only named party in the cross-bill, answered admitting federal estate taxes would be owed; also there was a controversy over which state law applied to determine proration of the estate tax liability; and since the decedent was an Arkansas resident, the Arkansas court should first determine the estate tax liability of the respective parties.

The Mississippi court denied the petition to withdraw and transfer the original will for filing in Arkansas. Further, it determined that the decedent’s will, pursuant to Mississippi law, should be construed to require the payment of all estate taxes and other liabilities and expenses from the residuary estate. The residuary legatees (the appellees here), feeling aggrieved by the decree, appealed the decision to the Mississippi Supreme Court asserting that although the Mississippi court had jurisdiction to probate the will, it should have deferred jurisdiction to the Arkansas court, as a matter of comity, on the issue of who should bear the tax burden or should have applied Arkansas law. Under Ark. Stat. Ann. § 63-150 (Repl. 1971), the tax liability would be apportioned equally among all beneficiaries of the estate. On November 3, 1975, the Mississippi Supreme Court affirmed, in Estate of Torian v. First National Bank of Memphis, 321 So. 2d 287 (1975), the lower court’s finding that it is not required by comity to defer to the Arkansas court or apply the Arkansas apportionment statute on the issue of who bore the tax liability because the forum state (Mississippi) and not the domiciliary state (Arkansas) had the greater substantial interest in the controversy under the “dominant interest” and “interest analysis approach.” Also the will was not probated in Mississippi by mistake nor compulsion. Therefore, the residuary legatees must bear the burden of all estate taxes and expenses.

Thereafter, in April, 1976, the residuary legatees, appellees here, filed a petition in the pending proceeding, which had been held in abeyance, in the Arkansas probate court requesting an order directing the appellant executor to file its inventory and final accounting in the Arkansas court. The executor filed its accounting which indicated that the Arkansas administration had approximately $496,626.29 at its inception consisting of cash, bonds, securities, etc. Credits were claimed against those assets of the estate in Crittenden County, Arkansas, from the amounts that the executor had paid for federal, Mississippi and Arkansas estate taxes following the decision of the Mississippi Supreme Court. Appellees objected to the accounting asserting that they, as residuary legatees, had been wrongfully charged in the sum of approximately $228,000; i.e., the executor had not apportioned the taxes pursuant to Arkansas law. Appellant executor asserted that since the residuary beneficiaries, appellees, were parties to the Mississippi proceedings or the appeal there, that the Mississippi Supreme Court decision was entitled to full faith and credit, and the question of the propriety of the expenditures for taxes was res judicata in the case.

The Arkansas probate court held that appellant First National, in its capacity as executor of the deceased’s Arkansas estate, was not a party to the Mississippi proceeding and, therefore, neither the executor nor the Arkansas estate was subject to the decision rendered in Mississippi. The court commented that the record of the Mississippi proceeding did not disclose that the residuary legatees, appellees, were ever served with or waived process on the cross-bill but reasoned this fact was unimportant in that the Mississippi court only had jurisdiction of appellant First National as executor of the Mississippi estate, and the decree was entitled to full faith and credit only as to disposition of the Mississippi estate. Accordingly, the Arkansas probate court, denied credits totaling $229,114.34, which were claimed by the executor, for the disbursements it had made, pursuant to Mississippi law, from the Arkansas assets in payment of the entire estate tax liability without the Arkansas court’s approval. The Arkansas court also ordered the disbursement of the assets of the Arkansas estate to the objecting legatees, appellees, according to the Arkansas apportionment law. The court awarded the executor a fee of $4,000 for its services and its counsel a fee of $5,000.

On appeal here, the appellant executor first contends the court erred in failing to hold the entire decision of the Supreme Court of Mississippi was entitled to full faith and credit and that the doctrine of res judicata applied to the issue of the allocation of the estate tax liability. It is well settled that under the full faith and credit clause of the United States Constitution, Art. IV, § 1, a foreign judgment is conclusive on collateral attack, except for the defenses of fraud in the procurement of the judgment or want of jurisdiction in the court rendering it. Purser v. Corpus Christi State National Bank, 256 Ark. 452, 508 S.W. 2d 549 (1974). Here we are of the view that the Mississippi court decision was not entitled to full faith and credit in its entirety because the court lacked jurisdiction over the Arkansas res or that portion of the estate of which Arkansas had acquired jurisdiction.

In Simmons v. Simmons, 203 Ark. 566, 158 S.W. 2d 42 (1942), we held that “the situs of personal property is the residence of the owner” and the property located in this state is “not subject to the foreign jurisdiction.” Further, it is the general rule of law adopted from the common law that the personal estate of a “decedent is a legal unit, having its situs at the owner’s domicile,” and “the title to the whole of it, wherever situated, is vested in the duly qualified domiciliary administrator, and not in the distributees, and that its distribution is governed by the law of the domicile of the deceased owner.” Baker v. Baker, Eccles & Company, 242 U.S. 394 (1917). Here the deceased was a resident and domiciliary of Arkansas. Therefore, the personal property, approximating $500,000 in stocks, bonds, cash, etc., physically located in the appellant bank in Memphis, Tennessee, had its legal situs in Arkansas.

In Leflar, American Conflicts of Law. § 205 (3rd Ed. 1977), it is stated: “Tangible personalty is for the most part subject to administration at the place of its situs, and nowhere else.” Further it is also said:

Once a chattel is properly subjected to administration in any state, it is technically owned by the administrator there, for purposes of administration .... If, however, the chattels have already come under the control of an administrator at their original situs, .... the situs administrator’s claim to the chattel is superior.

Here it appears that the Mississippi court never attempted to take control over the personal property located in Memphis. The executor Filed an inventory and appraisement of the decedent’s personal property with the Mississippi court which only listed “furniture and furnishing located in DeSoto County, Mississippi,” valued at approximately $1,000. The first court to assert jurisdiction over the personalty in the Tennessee bank was the Arkansas court in its probate order on January 23, 1973. This was proper and in accord with the recited rule of law that the situs of personal property is at the residence or domicile of the owner. Further, in rem jurisdiction is founded upon physical power and the “basis of the jurisdiction is the presence of the subject property within the territorial jurisdiction of the forum State.” Hanson v. Denckla, 357 U.S. 235 (1958). Therefore, the Mississippi State court lacked in rem jurisdiction over the Arkansas assets of the estate.

Even so, appellant contends by virtue of its personal jurisdiction over the parties, the Mississippi court’s judgment is entitled to full faith and credit. Here it is argued that the Mississippi court had personal jurisdiction over the parties, including the appellees who by their appearance and appeal of the Mississippi trial court’s decision, submitted themselves to the Mississippi Court’s jurisdiction. As appellant argues, the basic question litigated there was what law should apply to determine the allocation of liability from the estate’s assets for estate taxes. However, personal jurisdiction over the parties and litigation of this issue does not entitle the Mississippi judgment to full faith and credit in Arkansas as to the Arkansas assets. As was stated in Carpenter v. Strange, 141 U.S. 87 (1891):

Hence, although in cases of trust, of contract and of fraud, the jurisdiction of a court of chancery may be sustained over the person, notwithstanding lands not within the jurisdiction may be affected by the decree, (Massie v. Watts, 6 Cranch, 148), yet it does not follow that such a decree is in itself necessarily binding upon the courts of the State where the land is situated. To declare the deed to Mrs. Strange null and void, in virtue alone of the decree in New York, would be to attribute to that decree the force and effect of a judgment in rem by a court having no jurisdiction over the res.

Here, although personal property is involved rather than real property as in Carpenter, supra, the question of power to render a binding judgment over the property is analogous.

Here the Mississipii State court ruled that the will was properly admitted to probate in Mississippi and that its laws would determine who should bear the burden of the estate taxes. The Mississippi Supreme Court affirmed, recognizing the general rule that the final distribution of a decedent’s effects is to be decided by the law of his domicile; however, it did not apply in Mississippi because of its statute “declaring that personal property situated in this State shall descend and be distributed according to the laws of this State, notwithstanding the domicile of deceased may have been in another State.” Here the personalty involved was not situated in Mississippi. The Mississippi judgment was entitled to full faith and credit in Arkansas as far as it concerned property in Mississippi, but it had no effect in rem upon the property legally situated in Arkansas. Accordingly, it was not entitled to full faith and credit nor res judicata effect on the issue of allocation of tax liability in regard to the assets of the Arkansas estate.

Appellant contends the court erred in applying the Arkansas estate tax apportionment statute to Mississippi real estate because it was without jurisdiction to do so. Suffice it to say that the Arkansas Probate Court recognized that it had “no control or interest in the Mississippi proceedings.” It merely denied the executor the credits sought for the payment of the entire estate tax liabilities out of the Arkansas estate.

Appellant next asserts the court abused its discretion in awarding an unreasonably low fee ($4,000) to it. Appellate review of probate cases is de novo, as in equity cases, and on appeal we will consider improperly excluded evidence. Price v. Price, 258 Ark. 363, 527 S.W. 2d 322 (1975). Therefore, before reaching appellant’s contention, we first determine whether the exclusion of an attorney’s testimony on the ground of attorney-client privilege was improper.

Here the executor, in its petition for allowance of executor’s and attorneys’ fees, asserted that the attorney Spears had been employed initially to render services for the Arkansas estate proceedings. The proffered testimony of Spears by appellees related to a consultation which took place a few days before the will was first filed for probate in Mississippi by appellant. According to this attorney, he had advised the appellant that Arkansas and not Mississippi was the proper forum to probate the will. Also, that probating the will in Mississippi would result in exhausting the residuary estates and the devisees of the Mississippi lands would be free of taxes “with a million dollars worth of land.”

In Francis v. Turner, 188 Ark. 158, 67 S.W. 2d 211 (1933), we stated that it was a settled principle “that an attorney for an estate represents the heirs and distributees and legatees” . . . . and is in “a position of trust with respect to all those interested in the estate.” An executor or administrator is in a similar position of trust with regard to all those interested in the estate. Hobbs v. Cobb, 232 Ark. 594, 339 S.W. 2d 318 (1960). Here the appellant executor, in consulting with the attorney Spears, was necessarily acting for both itself as executor and for the beneficiaries under the will.

In regard to the attorney-client privilege, Ark. Stat. Ann. § 28-1001, Rule 502 (d) (Noncum. Supp., 1976), provides: In a similar situation involving a shareholder’s derivative suit against a corporation, the corporation’s claim of privilege regarding the advice given it by its attorney was said not to be privileged from disclosure in the action. Garner v. Wolfinbarger, 430 F. 2d 1093 (5th Cir. 1970). Here the fee sought by the executor was to be paid out of the estate. We are of the opinion the attorney-client privilege was inapplicable and the testimony admissible on the issue of the reasonableness of the executor’s fee.

(d) Exceptions. There is no privilege under this rule. (5) Joint clients. As to a communication relevant to a matter of common interest between or among two [2] or more clients if the communication was made by any of them to a lawyer retained or consulted in common, when offered in an action between or among any of the clients. . . .

Appellant argues with respect to its executor’s fee that, based upon the value of the personal property passing through its hands in the State of Arkansas and the problems involved in administering the estate, it was entitled to a fee of approximately $20,000 pursuant to Ark. Stat. Ann. § 62-2208 (d) (Repl. 1971) rather than the $4,000 allowed. Under § 62-2208 (c), the court, in its discretion, may deny totally or reduce the compensation to a personal representative who has failed to file a satisfactory account or perform any other substantial duty pertaining to its office. Here the administration of the Arkansas estate was first begun in January, 1973, and the matter is still not resolved. It appears that this delay was primarily due to the appellant executor initiating the original probate in Mississippi in disregard of the advice of its Arkansas counsel. This has threatened the assets of the Arkansas estate to near total depletion. Accordingly, we find no abuse of the court’s discretionary authority under § 62-2208 (c) in the allowance of only a $4,000 fee.

In regard to the $5,000 attorneys’ fee awarded by the court, we cannot agree that the sum awarded was unreasonable or insufficient so as to constitute an abuse of discretion. Appellant sought compensation for its current attorneys in the sum of approximately $17,000 using the statutory standard set out in § 62-2208 (d). However, the court, if it determines the schedule of fees to be excessive under the circumstances, is empowered to allow a fee commensurate with the value of legal services rendered. Appellant argues the fees allowed its current attorneys, Brick and Adams, for services they performed for the executor after April 15, 1976, were inadequate based upon any criteria. Appellees agree that the award was not commensurate with the value of the services rendered. However, they assert, as the trial court found, the bulk of the services were performed on behalf of the executor in its individual capacity to obtain credits for tax payments made out of the Arkansas assets of the estate. This action was actually in derogation of the interests of the appellees or residuary legatees. In the circumstances, we perceive no abuse of discretion in the award of $5,000 in fees. See Jacoway v. Hall, 67 Ark. 340, 55 S.W. 12 (1900).

Appellees, by cross-appeal, assert the court erred in failing to charge the executor with the decrease in value of 1,560 shares of stock held during the preceding four year period of the administration of the estate. Appellees argue that the stock had decreased in value in the amount, of approximately $35,000 or one-half since the time distribution should have been made and that the delay in distribution is solely attributable to appellant’s negligence. The trial court determined the appellees were partially responsible for this decrease in value and denied the requested relief and we agree. The officials of appellant First National had consulted with the appellees, the residuary legatees, concerning this stock. They gave their written authorization to sell one-half of the stock to cover potential federal, Mississippi and Arkansas estate taxes, liabilities and expenses. Also discussions were held as to the necessity of retaining the rest of the stock without making distribution. Additionally, appellant discussed with appellees’ attorney the problems of tax allocation and the effect on ultimate distribution. Neither the appellees nor their attorney requested a distribution at any time or any other action regarding the balance of the stock. Certainly, we cannot say that the court’s finding that appellees were partially responsible for the stock’s decrease in value is against the preponderance of the evidence.

Affirmed on direct.

Affirmed on cross-appeal.

We agree: Harris, C.J., and fooi.eman and Byrd, JJ.


text:
    Sarah WALKER v. COUNTY OF WASHINGTON
    CR 77-227
    564 S.W. 2d 513
    Opinion delivered April 24, 1978
    (In Banc)

      Murphy & Carlisle, for appellant.

      Bill Clinton, Atty. Gen., by. Joyce Williams Warren, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Ark. Const. Art. IV, § 1 (1874) provides that the state government shall be divided into three departments and § 2 reads that “[n]o person, or collection of persons, being one of these departments, shall exercise any power belonging to either of the others, except in the instances hereinafter expressly directed or permitted.” § 1 of Amendment 55 provides that “a county, acting through its Quorum Court may exercise local legislative authority not denied by the Constitution or by law.” Following adoption of the Amendment, Act 742 of 1977 was enacted by our legislature. § 40 (d) of that Act, Ark. Stat. Ann. § 17-3502 (d) (Supp. 1977), provides for the separation of powers in county governments.

Appellant contends that Act 742 of 1977, Ark. Stat. Ann. § 17-3807 (Supp. 1977) specifically denies the quorum court, legislative power except for those powers enunciated in Amendment 55 and its companion legislation, Ark. Stat. Ann. § 17-3801 (Supp. 1977). § 17-3807 provides in pertinent part:

A county exercising local legislative power is subject to the following provisions. These provisions are a prohibition on the legislative power of a county acting other than as provided . . .
(e) all laws directing or requiring a county government or any officer or employee of a county government to carry out any function or provide any service. . . . (Italics supplied.)

Appellant argues there is no statutory provision expressly granting the quorum court the power to regulate the rendering of county services, as here, by elected officials.

We agree that the quorum court has no legislative powers other than those expressly directed or permitted. § 4 of Amendment 55 provides, inter alia, that “the Quorum Court shall have the power to ... . adopt ordinances necessary for the government of the county.” § 17-3801, § 69 of Act 742, provides:

As provided by Amendment No. 55, Section 1, (a) of the Arkansas Constitution, a county government acting through its Quorum Court may exercise local legislative authority not expressly prohibited by the Constitution or by law for the affairs of the county. These powers include, but are not limited to: ... .
(j) provide for any service or performance of any function relating to county affairs;
(m) to exercise other powers, not inconsistent with law, necessary for effective administration of authorized services and functions. . . .

Further, Ark. Stat. Ann. § 17-3802 (1) (Supp. 1977) (§ 70 of Act 742) provides that the quorum court “shall provide through ordinance for the following necessary services for its citizens:”

(c) real and personal property tax administration, including assessments, collection, and custody of tax proceeds; ....
(e) all other services prescribed by State law for performance by each of the several elected county officers or departments or county government.

Here the ordinance required all county constitutional offices to be open to serve the public from 8 a.m. until 4:30 p.m. Monday through Friday. The ordinance relates to the performance of appellant in providing necessary services as tax collector to the public and is within the express powers granted the quorum court by the recited provisions of Amendment 55 and Act 742 of 1977. We find no conflict between the ordinance and the separation of powers provisions in our Constitution and companion legislation.

Appellant next contends the court erred in failing to direct a verdict in her favor because there was no substantial evidence showing her violation of the ordinance. A directed verdict is proper only where no fact issue exists and, on appeal, we view the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence to support the verdict. Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973). Here we consider only appellant’s second motion for directed verdict since the first motion was waived by subsequently offered proof. Raiborn v. Raiborn, 254 Ark. 711, 495 S.W. 2d 858 (1973). In the case at bar a deputy sheriff testified that he checked appellant’s office on three consecutive days between 3:30 and 3:45 p.m., found the office closed and “a sign on the door that advised they are open from eight (8:00) till tiiree thirty (3:30).” Appellant herself testified that the collection windows were closed at 3:30 p.m. She closed the office at 3:30 except for those persons standing in line in the hall and a taxpayer, who was not in line at that time, could not pay his taxes. Suffice it to say there was ample substantial evidence that appellant failed to keep her office open to the public until 4:30 as required by the ordinance.

In fairness to the appellant, we note that she, as her predecessors, had for many years closed the collector’s office at 3:30 for security and bookkeeping purposes although she and the personnel continued to work until 4:30 and often later. The collection of money after 3:30 posed a security problem since the banks were closed by then. Whether there is an infringement upon the separation of powers, as asserted here, depends upon the facts of each case. On the narrow issue presented, keeping the public office open an additional hour, we cannot say the ordinance is an unreasonable exercise of the quorum court’s authority.

Affirmed.

Harris, C.J., and Hickman, J., concur.


author: Darrell Hickman, Justice.

text:
    Winfred STILES v. REYNOLDS METALS COMPANY and LIBERTY MUTUAL INSURANCE COMPANY
    77-338
    564 S.W. 2d 520
    Opinion delivered April 24, 1978
    (Division II)

      Toungdahl, Larrison & Agee, for appellant.

      Wright, Lindsey & Jennings, for appellees.
   Darrell Hickman, Justice.

The only issue on appeal of this Workers’ Compensation case is the failure of the commission to award Winfred Stiles a lump-sum settlement.

Winfred Stiles was awarded permanent total disability payments in September, 1975. He filed a claim with the commission to receive some $39,000 in benefits in a lump-sum. The commission denied the claim; that decision was affirmed by the Circuit Court of Saline County.

Stiles’ benefits are $49.00 a week. In addition to his compensation he is receiving retirement pay and social security. Stiles wisely invested his money and has increased his net worth since he started receiving benefits. In fact, he had several thousand dollars in the bank. Stiles testified that he vyould like to receive a lump-sum settlement so that he could manage the money rather than receiving it weekly. Stiles offered to either place the bulk of the money in certificates of deposit or in a trust account.

The majority of the commission found it was not in Stiles’ best interest to receive a lump-sum settlement. The commission is granted broad discretionary powers in approving lump-sum settlements. On review we look to see if that discretion has been abused and if there is substantial evidence to support the decision of the commission. Gill v. Ozark Forest Products, 255 Ark. 951, 504 S.W. 2d 357 (1974). We do not decide what we would do in such cases; that is the function of the commission, which must administer the claim of the workers.

The commission is in a position to study the problems of workers and to insure that the act is fairly administered. We cannot say in this case that the commission abused its discretion or that there was no substantial evidence to support the decision of the commission. Therefore, we affirm.

Affirmed.

We agree: Harris, C.J., and Byrd and Howard, JJ.


author: Darrell Hickman, Justice. John A. Fogleman, Justice,

text:
    VERMEER MANUFACTURING COMPANY v. Bobby STEEL, Circuit Judge
    77-359
    564 S.W. 2d 518
    Opinion delivered April 24, 1978
    (In Banc)

      Shaw & Ledbetter, for petitioner.

      Hardegree & Maddox, for respondent.
   Darrell Hickman, Justice.

The appellant, Vermeer Manufacturing Company, seeks a writ of prohibition to prevent the circuit judge of Polk County from proceeding further in a wrongful death case.

The facts are undisputed and the two issues on appeal are purely questions of law: is a writ of prohibition a proper remedy in this case; is the three-year statute of limitations for a wrongful death action extended one day if the last day for commencing such an action falls on Sunday. A writ of prohibition is the proper remedy in this case; however, we decline to grant it and hold the trial judge correctly ruled that the three-year statute was extended one day.

It was proper for the appellant to seek prohibition in this case because the three-year statute of limitations for wrongful death is jurisdictional. If this case was not commenced within the time permitted by the statute, then there would be no jurisdiction. See Wheeler v. Southwestern Greyhound Lines, Inc., 207 Ark. 601, 182 S.W. 2d 214 (1944).

An action for wrongful death must be. commenced within three years. Ark. Stat. Ann. § 27-907 (Repl. 1962). The death occurred on July 24, 1974. The complaint was filed on Friday, July 22, 1977. The last day of the three years was Sunday, July 24. The summons was placed in the hands of the Pulaski County Sheriff on Monday, July 25, 1977. Before an action is commenced the complaint must be filed and the summons must be delivered to the sheriff. Therefore, this action was commenced one day beyond the three years unless we apply the Sunday rule. See Ark. Stat. Ann. § 27-301 (Repl. 1962). ,

We have held that-when an act is required to be done within a certain number of days, then if the last day falls on Sunday, the-time is extended until Monday. White v. Avery, 226 Ark. 951, 295 S.W. 2d 364 (1956); McNutt v. State, 163 Ark. 122, 259 S.W. 1 (1924). However, we have held that when a statute requires an act to be done within a certain number of months or years then the time is not extended if the last day falls on Sunday. Cf., Clark v. American Exchange Trust Co., 189 Ark. 717, 74 S.W. 2d 974 (1934).

After reviewing our decisions we have decided that it would be best to adopt a uniform rule for all such cases. Therefore, in every instance where an act must be done within a certain number of days, months or years, if the last day falls on Sunday the time for commencement is extended to the following Monday.

This new rule is to be applied in this case and hereafter in all such cases. Consequently, we overrule our decisions in White v. Avery, supra, McNutt v. State, supra, and Clark v. American Exchange Trust Co., supra, insofar as they apply to the subject of this case.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. This is not a case in which a statute of limitations, as such, is involved. Neither is it an “instance where an act must be done within a certain number of days, months or years,” whatever that means. The wrongful death act creates a cause of action and the limitation is on the right, not the remedy.

I would grant the writ.


author: George Howard, Jr., Justice. Conley Byrd, Justice, George Rose Smith, Justice,

text:
    Annie WILLIAMS, Individually and as Administratrix, et al v. Fondville L. CARR & POWELL BROTHERS GIN & LAND COMPANY
    77-242
    565 S.W. 2d 400
    Opinion delivered April 24, 1978
    (In Banc)
    [Rehearing denied May 30, 1978.]

      Hale, Foglernan & Rogers and J. B. Cobb, Memphis, Tenn., for appellants.

      Rieves, Rieves & Shelton and Reid, Burge & Brevallet, for appellees.
   George Howard, Jr., Justice.

The question presented for review is whether the jury’s verdict is sustained by substantial evidence which found that the decedents and appellee, Fondville L. Carr, were equally guilty of negligence in the same degree, thus resulting in the dismissal of the wrongful death actions instituted by the personal representatives of the decedents.

FACTS

On October 22, 1974, at approximately 12:15 a.m., decedents, Vera Walker Joyner and Helen Walker, were passengers in a pickup truck owned and driven by Walter Turner in an easterly direction on Interstate Highway 55 enroute to Memphis, Tennessee. While the pickup truck was proceeding on the Rock Island Overpass in Crittenden County, Arkansas, the pickup truck was involved in an accident with a 1966 Pontiac station wagon. As a consequence, the station wagon came to rest across the westbound traffic lane causing the westbound traffic to back up in the direction of Memphis, while the pickup truck came to rest across the eastbound lane causing the traffic to back up in the direction of West Memphis, Arkansas.

While the decedents were in the process of discussing the accident with representatives of the Arkansas State Police near the pickup truck, appellee, Fondville L. Carr, while operating a 1966 Rio tractor-trailer unit in the westbound lane, crossed the median striking decedents and killing both of them.

Appellants instituted a wrongful death action against appellee and Powell Brothers Gin & Land Company of Memphis, Tennessee, the alleged employer of Fondville L. Carr, for compensatory damages in the sum of $750,000.00 and punitive damages in the sum of $150,000.00.

The case was tried to a jury. Among other things, the following interrogatory was submitted to and answered by the jury:

“4. Using 100% to represent the total responsibility for the occurrence, apportion responsibility between the parties whom you have found to be responsible. Answer: Fondville'Carr — 50%; Helen Walker — 50%.
“a) Using 100% to represent the total responsibility for the occurrence, apportion the responsibility between the parties whom you have found to be responsible. Answer: Fondville Carr — 50%; Vera Walker Joyner — 50%.”

The trial court directed a verdict in behalf of appellee on the issue of punitive damages and involving the question whether Fondville L. Carr was an agent, servant or employee of Powell Brothers Gin & Land Company.

On February 14, 1977, the trial court entered its judgment pursuant to the jury’s verdict dismissing appellants' action.

On March 4, 1977, appellants presented their motion for a new trial which was denied by the trial court.

APPELLANTS’ CONTENTIONS FOR REVERSAL

I. It was error to direct a verdict on the issue of punitive damages.
II. The trial court erred in submitting to the jury the issue of whether decedents were guilty of negligence which was a proximate cause of the accident.
III. The verdict of the jury apportioning negligence which was a proximate cause of the accident was not supported by any substantial evidence.
IV. The trial court erred in failing to direct a verdict that appellee Fondville Carr was guilty of negligence which was a proximate cause of the accident.
V. The trial court erred in giving an instruction of sudden emergency.
VI. The trial court erred in failing to instruct the jury in accordance with the United States Department of Transportation Regulation 391.41(a) prohibiting one from driving a motor vehicle unless he is physically qualified to do so.
VII. The trial court erred in refusing to allow rebuttal evidence of Arkansas Highway Department blueprint of Rock Island Overpass.
VIII. The trial court erred in not applying the Tennessee Law on measure of damages for wrongful death.
IX. The trial court erred in allowing a funeral home director to testify as an expert witness on the issue of what is more than normal grief.
X. It was error to allow expert witness to testify in view of violation of discovery request for names of witnesses.
XI. The trial court erred in refusing to grant a new trial because of inadequacy of damages.
XII. It was error to direct a verdict that appellee Fondville Carr was not an agent, servant or employee of appellee Powell Brothers Gin & Land Company.

THE DECISION

The points asserted by appellants for reversal will be discussed in seriatim:

I.

We are persuaded that the trial court was correct in directing a verdict in behalf of appellee-defendant on the issue of punitive damages. Therefore, the trial court is affirmed on this contention.

In Williams v. Walker, 256 Ark. 421, 508 S.W. 2d 52, we held that the recovery of exemplary damages is dependent upon the recovery of actual damages. The jury found that decedents and appellee were equally at fault, consequently, there was no recovery for actual damages by appellants-plaintiffs.

II.

We are convinced that appellants’ second contention has merit. The trial court should have held as a matter of law that decedents were not guilty of negligence which was a proximate cause of the incident resulting in their untimely deaths. Consequently, we reverse the trial court’s action in submitting this question to the jury.

It is clear from the evidence that, the decedents were following the instructions and directions of the Arkansas State Police at the time decedents were struck and killed by the truck driven by appellee, Fondville L. Carr. Moreover, the evidence reflects that decedents were standing at the only available and safest place at the time of the incident.

The evidence also reflects that Kim Wegner who was operating a truck in the westbound traffic lane, stopped his vehicle in the vicinity of the first accident, put his four-way flashers on and ran back in the direction of Memphis and placed flares on a crest in the westbound traffic lane in order to warn approaching vehicles of the existing emergency. After the state police arrived, Kim Wegner obtained additional flares from the police and placed them on the crest.

Kim Wegner testified that after Fondvilie L. Carr's truck had crossed the median and entered the eastbound traffic lane and struck the decedents, he (Kim Wegner) and the state police observed that the flares were still burning in the westbound lane.

Fondvilie L. Carr testified that he got up the morning of October 21, 1974, at 7:00 o’clock a.m. and reported to work; that he had had only “3 or maybe 3 1 /2” hours of sleep in the “cab” of his truck between the time he reported for work and the time of the accident which occurred shortly after midnight. It is clear from the record that all other motorists in the westbound lane observed the flares and brought their vehicles to a stop in line with the backed up traffic.

We deem it unnecessary to discuss appellants' contentions III and IV in view of the position the Court has taken in contention II.

V.

We conclude that the trial court erred in giving an instruction on sudden emergency to the jury. The record does not support a finding that appellee, Fondvilie L. Carr, was faced with an emergency. Moreover, one has to be free of negligence in order to be entitled to an instruction of sudden emergency. In other words, one may not create an emergency by his own action and then seek to take advantage of the situation by requesting an instruction on sudden emergency.

VI.

Relative to this contention, we conclude that on a retrial of this cause, provided a request is made, an instruction pertaining to Regulation 391-41 (a) of the United States Department of Transportation should be granted. W'e cannot visualize any prejudice resulting from the admissibility of this regulation.

VII.

We hold that the blueprint of the Rock Island Overpass prepared by the Arkansas Highway Department is admissible and, accordingly, the trial court committed error in refusing to admit this document. It is clear from the evidence that the overpass was constructed pursuant to the offered blueprint and that there had not been any alterations or changes in the structure; consequently, the blueprint was a correct mechanical drawing of the overpass at the time the accident occurred. See: Ark. La. Gas Co. v. Lawrence, 239 Ark. 365, 389 S.W. 2d 431.

VIII.

In Wallis v. Mrs. Smith's Pie Company, 261 Ark. 622, 550 S.W. 2d 453, we held that in a tort action involving a resident or residents of another state and/or a resident of Arkansas, our courts are free to apply the rule based on the “most significant relationship” as affected by the following named choice-influencing considerations: (1) Predictability of results. (2) Maintenance of interstate and international order. (3) Simplication of the judicial task. (4) Advancement of the forum’s governmental interests. (5) Application of the better rule of law. In other words, the Arkansas Court, as the forum court, is free to apply the substantive law of a sister state where it finds that such state has a significant interest in the outcome of the issues involved. However, the rules of the road of the state where the tortious conduct occurred are applied.

Under Wallis, the substantive law of Tennessee is applicable, but Arkansas’ rules of the road are applicable in the instant case.

We conclude that the trial court committed error in not applying Tennessee’s substantive law inasmuch as both appellants-plaintiffs and appellees-defendants are residents of the State of Tennessee, while the accident occurred in the State of Arkansas. However, the parties may elect to be governed by both Arkansas’ substantive law and rules of the road.

IX.

Marvin Thompson, a licensed embalmer and funeral director, who testified that he attended the Dallas Institute of Mortuary Science at Dallas, Texas, and that he obtained his license in late 1950, over the objections of appellants, was qualified by the trial court as an expert witness on the question of grief and mental anguish.

Mr. Thompson was excused from the rule and, accordingly, he sat in the courtroom during the two days of trial; he heard all of the testimony given by the plaintiffs concerning the grief and mental anguish that they had sustained. Marvin Thompson concluded, from this limited observation of the appellants-plaintiffs, that appellants had sustained nothing more than normal grief as a consequence of the loss of their loved ones.

The action of the trial court in qualifying a mortician as an expert on the issue of mental anguish and grief is rather shocking and disturbing to this Court. It is well settled that a witness may testify as an expert if he possesses special skill or knowledge with respect to the matter involved so superior to that of men in general as to make his formation of a judgment a fact of probative value. Blanton v. Missouri Pacific Railroad Company, 182 Ark. 543, 31 S.W. 2d 947.

Also, under Rule 702 of the Uniform Rules of Evidence, it is provided as follows:

“Testimony by experts. — If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise.”

We are not persuaded that Mr. Thompson’s attendance at an institute of mortuary science and his participation in approximately 200 funerals would qualify him as an expert to offer any constructive and objective testimony relating to the degree and intensity of the mental anguish and grief realized by the appellants-plaintiffs.

We submit that Mr. Thompson’s definition of extraordinary grief illustrates his very limited knowledge of the subject matter and not only does it not represent the law, but was devastating to appellants’ claim of damages for mental suffering and grief:

“In my opinion, extraordinary grief is that grief that a person cannot overcome and he or she has to be treated by a doctor, psychiatrist or put in a mental hospital.”

In Peugh v. Oliger, Admx., 233 Ark. 281, 345 S.W. 2d 610, we said, among other things, as follows:

“ \ . . [I]t is necessary that the mental anguish suffered be real and with cause, and not merely the result of a too sensitive mind or a morbid imagination.’ ”, . . “ ‘It will thus be seen that the mental anguish for which a recovery can be had must not consist simply of annoyance or disappointment or a suffering of the mind growing out of some imaginary situation, but it must be some actual distress of mind flowing from the real ills, sorrows and griefs of life.’ ”

We, therefore, reverse the trial court on this contention asserted by appellants.

XII.

We conclude that the trial court committed reversible error in granting a directed verdict in behalf of Powell Brothers Gin & Land Company on the issue whether Fond-ville L. Carr was an agent or employee of Powell Brothers Gin & Land Company. We are convinced that the testimony presented a fact question, consequently, the issue should have been submitted to the jury.

The evidence reflects that Powell Brothers Gin & Land Company owned the trailer that was attached to the truck driven and owned by Fondville L. Carr; and that the seeds contained in the trailer were owned by Powell Brothers Gin & Land Company; moreover, the record further reflects that Powell Brothers Gin & Land Company determined the hours that Fondville L. Carr worked and the number of trips that he would make each day from Tennessee to Arkansas in delivering the merchandise. Furthermore, it is clear from the record that Powell Brothers Gin & Land Company specifically directed Fondville L. Carr to make a return trip to Arkansas with his merchandise and he was following these directions when the accident occurred.

Affirmed in part, reversed in part and remanded.

Byrd, J., concurs.

George Rose Smith and Holt, JJ., dissent in part.

Conley Byrd, Justice,

concurring. I concur with the result in the majority opinion although I must admit that the rule in Wallis v. Mrs. Smith's Pie Company, 261 Ark. 622, 550 S.W. 2d 453 (1977), as applied seems to give the plaintiff the best of two worlds.

However, I cannot accept the minority view that the decedents were guilty of negligence that was a proximate cause of their death. They had the right to assume until the contrary became apparent that the people using the westbound portion of the freeway would not cross the median. To accept the minority’s view would make a jury question as to the liability of a motorist traveling along a freeway any time the motorist is struck by a vehicle crossing the median of any of our interstate highway systems. It would come as quite a shock to the average citizen of this State to find out that he could be held liable for damages under such circumstances. See Prickett v. Farrell, Adm., 248 Ark. 996, 455 S.W. 2d 74 (1970) and Scott v. Jansson, 257 Ark. 410, 516 S.W. 2d 589 (1974).

For the reasons herein stated, 1 concur in the result of the majority opinion.

George Rose Smith, Justice,

dissenting. I wish to express my disagreement only with regard to the majority’s second point, although there are other issues upon which I am not in complete accord with the majority decision.

The majority hold that the decedents were, as a matter of law, not guilty of any negligence which was a proximate cause of their death. Yet the proof is that after the first accident they remained for 25 minutes in the traveled portion of the eastbound lanes of traffic, 15 minutes of which was before the police arrived. As mere passengers in the car they were certainly free to walk to a position of complete safety, which they could apparently have done in a few seconds. The jury found that their negligence was equal to that of the truckdriver, Carr, but in the face of that finding the majority declare that the decedents were absolutely free from any negligence whatever.

Upon a retrial that holding will amount to a directed verdict for the plaintiffs. We have held that it is for the jury in a comparative negligence case to determine the negligence of each party. Baker v. Matthews, 241 Ark. 539, 408 S.W. 2d 889 (1966). Moreover, in a ngeligence case, turning upon a standard of ordinary care, a verdict should not be directed for the plaintiff unless there is no rational basis in the situation, testimonially, circumstantially or inferentially, for the jury to find for the defendant. Spink v. Mourton, 235 Ark. 919, 362 S.W. 2d 665 (1962). The question is especially critical here, because if the case is retried under Tennessee law the defendants are being deprived of the complete defense of contributory negligence under that law. Since the jury might believe that the decedents carelessly remained too long in a place of danger, which actually contributed jo their death, 1 cannot agree that the issue of their possible negligence has no place in the case.

      The decedents and Walter Turner were residents and citizens of Shelby County, Tennessee, and the pickup truck was licensed and registered in Tennessee.

      Appellee is a resident and citizen of Tennessee and the truck that he was operating is licensed and registered in Tennessee.

      The jury found that the estates of the decedents should recover a sum of $967.70 each. Apparently, this was the cost of the funeral expense for each decedent.

      Marvin Thompson testified that he had attended approximately 200 funerals over the past 24 years, but had not handled any funerals involving black people. The decedents involved in this action are black.