author: Ed. F. McFaddin, Associate Justice. Jim Johnson, Associate Justice,

text:
    Mode v. State.
    5011
    350 S. W. 2d 675
    Opinion delivered October 30, 1961.
    [Rehearing denied December 4, 1961.]

      Brasil & Brasil, Holt, Park & Holt and Hardin, Barton S Hardin, for appellant.

      Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a conviction of second degree murder for the homicide of D. L. Russell, Lee Mode prosecutes the present appeal. The first appeal is Mode v. State, 231 Ark. 477, 330 S. W. 2d 88, wherein we recited the facts and held that the appellant had shown only one error in the trial, which error concerned an instruction. The cause was remanded and, on retrial, Mode was again convicted of second degree murder and now prosecutes the present appeal. The error in the instruction in the first trial did not occur in the second trial.

With only a few exceptions, to he subsequently-noted, the- assignments in the motion for new trial in the present appeal are .the same as the assignments in the motion for new trial in the first appeal, since the evidence offered and the rulings made were practically the same in both trials. The rule of “law of the case” precludes the appellant from now urging any point that was assigned as error on the first appeal. Rankin v. Schofield, 81 Ark. 440, 98 S. W. 674; St. L. I. M. & S. Ry. Co. v. Hill, 92 Ark. 484, 123 S. W. 760; St. L. I. M. & S. Ry. Co. v. DeLambert, 120 Ark. 61, 178 S. W. 926; and Ford Motor Co. v. Fish, 232 Ark. 270, 346 S. W. 2d 469. In Bowman v. State, 93 Ark. 168, 129 S. W. 80, this Court held that the rule of ‘ ‘ law of the case ’ ’ was applicable to criminal eases as well as to civil cases, and such is also the rule in other jurisdictions. In 24 C. J. S. 690, “Criminal Law” § 1840, under the topic, “Former Decision as Law of Case.” Cases from sixteen jurisdictions are cited to sustain this statement:

“Generally, the determination of the appellate court as to all questions within the record which are or might have been raised and decided will be the law of that ease in subsequent proceedings in the case.”

The text also says :

“Hence, a decision on a prior appeal in the same case as to the sufficiency of the evidence to authorize a conviction ... is the law of the case on a subsequent appeal, where practically the same evidence is involved.”

Our long established rule in felony appeals is that this Court will consider every assignment in the motion for new trial, regardless of whether the assignment be argued in the briefs. In Martin v. State, 206 Ark. 151, 174 S. W. 2d 242, we said:

‘ ‘ For reversal he has brought forward in his motion for a new trial fourteen assignments of error. While appellant, in his brief, argues but one alleged error— that the evidence is not sufficient to support the verdict — it becomes our duty, since appellant is charged with a felony, to consider all other alleged errors contained in the motion for a new trial, whether argued in appellant’s brief or not. Eveland v. State, use of Fossett, 189 Ark. 517, 74 S. W. 2d 221; Van Hook v. Helena, 170 Ark. 1083, 282 S.W. 673; Knighton v. State, 169 Ark. 293, 274 S. W. 10, and Babers v. State, 168 Ark. 1055, 272 S.W. 659.”

See also Boyd v. State, 215 Ark. 156, 219 S. W. 2d 623.

The application of the foregoing rules means that the appellant is now precluded from urging as error any assignment in the motion for new trial in the present appeal if that assignment was contained in the motion for new trial in the first appeal, and based on a record exception. This is a sound rule: it prevents an appellant from failing to argue a point on the first appeal in order to save it as a possible ground for reversal should he be convicted at a second trial, and thus obtain a successive number of trials, with each involving an identical ruling in a previous trial, which ruling was not argued on the previous appeal.

We have made a careful comparison of the assignments contained in the motion for new trial in the present appeal, as against those contained in the motion for new trial in the first appeal. Under the rule of “law of the case,” we eliminate all such, and we proceed now to discuss the assignments concerning matters which were not foreclosed by the first appeal.

I.

Testimony Of Jerry Russell At The Former Trial. Jerry Russell testified in the first trial, and a transcript of his testimony was read at the present trial after the State had offered evidence that the witness could not be found. Appellant claims the Court committed error in alloAving the transcript of testimony to be read to the jury. The efforts to locate the witness were shown in considerable detail: subpoenas were returned “non-est,” the State Police had been unsuccessful in a search for the witness, and the grandparents of the witness testified that they did not know where he was. In the light of such shoAAdng, we find no error committed by the Trial Court in allowing the State to read to the jury the testimony of the Avitness given at the former trial. Section 28-713 Ark. Stats, is the applicable statute, and says, inter alia, that such former testimony may be read to the jury “. . . when for any reason the former witness may not be available.” There was such a showing in this case. The objections to the content of the testimony of the witness, Jerry Russell, are foreclosed by the rule of “law of the case,” supra.

II.

Relationship Retween Mr. Mode And Mrs. Russell Subsequent To The Homicide. The Avitness, Clara Eggleston, introduced pictures of Mrs. Mildred Russell (wife of the deceased) taken in Sallisaw, Oklahoma, in 1959 and 1960. The Avitness also testified that in June, July, and August, 1959, Mrs. Russell was then going under the name of Mildred Mode and was living with Lee Mode in a trailer court in Sallisaw, Oklahoma. Two other witnesses also testified as to pictures of Mrs. Mildred Russell taken about the same time in Sallisaw, Oklahoma. In admitting such testimony of these Avitnesses, the Trial Court ruled:

“The court Avill repeat at this time that this testimony tending to show this association or togetherness of the two parties, that is, Mildred Russell and Lee Mode, if it does show, is admitted .for the purpose of shedding light, if it does shed light, upon any motive for the killing involved in the trial of this case and to the relationship of the parties, if it does shed such light, prior to the difficulty or trouble resulting in the death of D. L. Russell, and it is not to .be considered for any other purpose.”

We find no error in the Court’s ruling. In Hornsby v. State, 163 Ark. 396, 260 S. W. 41, Hornsby was accused of killing Mr. Fells because of Hornsby’s love and infatuation for Mrs. Fells. In that case the Trial Court allowed letters to be introduced that Hornsby had written Mrs. Fells after they were put in jail. This Court affirmed the ruling of the Trial Court, saying:

“The court did not err in permitting the State to introduce the letters of the appellant to Mrs. Fells after they were put in jail. These letters were identified as the letters of the appellant, and he does not dispute that they were his letters. They were filled with protestations of love for Mrs. Fells,- and tended to corroborate her testimony to the effect that appellant was in love with her at the time he killed Fells, and tended to prove a motive on the part of the appellant for killing Fells. Stokes v. State, 71 Ark. 112-117. ‘The State may show the existence of a motive for taking the life of the deceased in determining guilt or innocence of the accused.’ Avery v. State, 149 Ark. 642, and cases there cited. See also Sneed v. State, 159 Ark. 65-72.”

So, in the ease at bar, the evidence that Mrs. Russell and Mr. Mode were living together in a trailer court in Sallisaw, Oklahoma during the summer of 1959 would be admissible on the question of motive, if any, as to the cause of the homicide; and also the conduct of Mode and

So, in the case at bar, the evidence that Mrs. Russell and Mr. Mode were living together in a trailer court in Sallisaw, Oklahoma during the summer of 1959 would be admissible on the question of motive, if any, as to the cause of the homicide; and also the conduct of Mode and Mrs. Russell subsequent to the homicide could be shown as shedding light on the relationship toward each'other prior to the homicide.

Ill

Evidence of Good Character of Deceased. This is 'the point that has given us the- most serious concern. Assignment No. 43 in the motion for neAv trial reads:

‘ ‘ The court erred in admitting the testimony of Ted L. Welborn, over the objection and exceptions of the defendant, to the effect that the reputation of D. L. Bus-sell was good; that he Avas a peaceable, law-abiding citizen; to Avhich ruling of the court the defendant at the time objected and duly saved his exceptions.”

This assignment cannot be disposed of by the rule of “laAv of the case” because, in the first trial, there was no objection to testimony of the good character of the deceased. But in the trial from Avhence comes this appeal, the folloAAÚng occurred Avhen the Avitness Welborn Avas testifying for the State on rebuttal:

“Q. Did ybu knoAv D. L. Bussell prior to his death?
A. Yes, sir.
Q. Was he a resident of Faulkner County?
A. He was.
Q. Did you knoAv his reputation among those Avho kneAv him for being a peaceable laAv abiding citizen?
MB. HOLT: We object to that, as being improper.
BY THE COUBT: Your objection avíII be overruled.
MB. HOLT: Save our exceptions.
A. I do.
Q. Did you know him on October 13, 1958?
A. I did.
Q. Do you know what his reputation was on October 13, 1958 for being a peaceable, law-abiding citizen?
A. I think so, yes, sir.
Q. What was that reputation, good or bad?
A. Well — that puts me on the spot. There had been a disturbance that I had been called to.
Q. We are talking about his reputation, Mr. Welborn.
A. His reputation was good.
Q. Those times that you were called, you testified about those yesterday?
A. Yes, sir.
Q. Once at the instance of ‘Mutt’ Jones?
A. That is right.
Q. And the instance of Lee Mode?
A. Yes, sir.
Q. And once at the instance of Gerald Mode?
A. That is right.”

Appellant insists that the general reputation of D. L. Bussell for being a peaceable and law-abiding citizen had never been attacked by evidence offered by the defense, and for that reason it was fatal error for the Court to allow the State on rebuttal to show Bussell’s reputation as being a peaceable and law-abiding citizen. We have a number of cases which deal with various phases of this matter, but in each there was a state of facts different from those presented in the case at bar. Some such cases are: Palmore v. State, 29 Ark. 248; Bloomer v. State, 75 Ark. 297, 87 S. W. 438; Bryant v. State, 95 Ark. 239, 129 S. W. 295; Shuffield v. State, 120 Ark. 458, 179 S. W. 650; Kelley v. State, 146 Ark. 509, 226 S. W. 137; Carr v. State, 147 Ark. 524, 227 S. W. 776; Fisher v. State, 149 Ark. 48, 231 S. W. 181; Jett v. State, 151 Ark. 439, 236 S. W. 621; Bogue v. State, 152 Ark. 378, 238 S. W. 64; Bridges v. State, 169 Ark. 335, 275 S. W. 671: Day v. State, 185 Ark. 710, 49 S. W. 2d 380; and Burton v. State, 204 Ark. 548, 163 S. W. 2d 160.

From these eases, we recognize the pertinent rules in Arkansas in a homicide case (as is the one at bar) to be: (a) that in the case in chief the State may not show the general reputation of the deceased as a peaceable and law-abiding citizen; (b) that unless the defendant undertakes to show that the deceased was not a peaceable and law-abiding citizen, then the State may not, on rebuttal, offer evidence of such good reputation; and (c) that bad reputation may not be shown by testimony as to specific acts of violence or turbulence. These are the general rules, but in the case at bar the defendant, under his claim of self-defense, showed — as was his right — a vast number of specific acts of bad conduct on the part of the deceased. This testimony related to threats, shooting, carrying a gun, fighting, etc., concerning all of which Mode was aware personally or was so advised by others. We list the following specific instances, wherein the defense elicited testimony about the conduct of the deceased;

(a) Witness Dave Ward testified that a year before the fatal shooting, Russell told Ward that he (Russell) was carrying a gun for Mode and that he was going to kill Mode; that Ward conveyed that threat to Mode; that Ward got Russell to put up his gun in July, and Russell said he could kill Mode without a gun; that hard feelings existed between Russell and Mode; that Ward saw a gun in the glove compartment of Russell’s car two or three times; that Russell “jumped on” John McCracken and got into a heated argument with Ward and Elbert Ryan, Shop Superintendent, in Ward’s office in July.

(b) Roy Barton testified that Russell came to his garage one day looking for Mode; that Russell was “mad” and said that if he. found Mode he would kill him.

(c) George W. Robinson testified .that Russell asked him if he had a gun (which he didn’t); that Russell cursed and said he was getting tired of.Mode coming out to his house; that the next time or two Russell 'went to town he “picked up a gun” and said he was going up there and get some shells and kill Mr. Mode and J. D. (Mode) both, if necessary; that Robinson told Mr. Mode about the threats and told Mode “to watch him — to watch out for him.”

(d) Virgil McCoy testified that Russell said he didn’t want Mode out on the farm —• that he was going to shoot him if he came back out there; and McCoy gave the information to Mode.

(e) Charles Hartsell testified that Russell came to Mode’s house, cursed Mode, and told him to come out, and then stated that he would kill him if he did come out.

(f) Bruce Henderson testified that Russell tried to borrow a gun from him; that, later, Russell had a gun that was jammed and asked Henderson to show him how it would shoot; that he said he took the gun from Mode and wanted it with which to kill Mode.

(g) Leo Looper testified that Russell said he and Mode .were having trouble, and Russell cursed and said if he could find Mode he would kill him.

(h) Elmer Joe Swaffer testified that Russell attacked Mr. Mode — made a lunge at Mode and grabbed him around the neck (at the fatal encounter).

(i) Gerald Mode testified that Russell came to Mode’s house and cursed him and threatened to kill him; that Russell told Gerald downtown that he would get his father, Lee Mode, sooner or later, and that Russell came to Mode’s house one night and shot two or three times over the house.

We hold that when the defense offered all of the foregoing evidence, the defense thereby opened the door for the State to show on rebuttal the general reputation of the deceased Russell sis a peaceable and law-abiding citizen. Such evidence certainly tended to rebut the defendant’s evidence as to acts of bad conduct, turbulence and violence on the part of the deceased. Even though general reputation cannot be shown by acts of specific misconduct, yet when, under the claim of self-defense, there is offered — as here — such an abundance of testimony of specific acts of bad conduct as to present a picture of the deceased being a violent and turbulent man, then the defense has, in effect, attacked the good reputation of the deceased and has opened the door for the State to show on rebuttal the general reputation of the deceased as a paeceable and law-abiding citizen. In Carr v. State, 147 Ark. 524, 227 S. W. 776, the appellant attacked the reputation of the deceased for peace and quietude; the State introduced a witness to show that the reputation of the deceased, was good. Appellant attempted on cross-examination of the witness to elicit his knowledge of acts of violence on the part of the deceased indicating otherwise. The defense offered to show testimony of nine specific acts of violence, but this evidence was rejected. In holding that the Court was in error in refusing the proffered testimony, we said:

“We think the form of the question immaterial in the instant case, because the very nature of the specific acts of violence offered to be established by the witness were of such a notorious and public nature within themselves as would tend to establish general reputation. Especially is that true in view of the great number of violent acts offered to be proved, covering so short a period of time.”

It is true that in two subsequent cases there were attempts by this Court to limit or distinguish the language in the Carr case. These cases are Fisher v. State, 149 Ark. 48, 231 S. W. 181, and Bridges v. State, 169 Ark. 335, 275 S. W. 671. In each of these cases the factual situations and the defenses were different from those in the Carr case and also in the case at bar. In Bridges v. State, supra, there was no plea of self-defense and no testimony of threats offered by the deceased against the appellant, and no evidence of specific acts of violence by the deceased. So the Bridges case is not in point. In Fisher v. State, supra, the defense offered evidence about the deceased seeking to borrow a pistol, and the State contended that such testimony allowed the State, on rebuttal, to show the good reputation of the deceased. But this Court said:

“We do not think what the defendant proved concerning the deceased was equivalent to proving his geveral character as a violent, quarrelsome and fighting man. It is clear that the proof made in the Carr case by the defendant as to the character of the deceased was of an entirely different nature from, the proof made in the case at bar . . . The character of the deceased as being peaceful and quiet is presumed to be good until the contrary appears, and, the testimony of the defendant not being sufficient to show that the general reputation of the deceased in that respect was that of a quarrelsome and fighting man, the State was not entitled to introduce original evidence upon that subject.”

The case of Bryant v. State, 95 Ark. 239, 129 S. W. 295, shows how slight need be the evidence offered by the defense in order for the State on rebuttal to show the general reputation of the deceased. In that case, Mr. Justice Battle, speaking for the Court, said:

“On cross examination of Mrs. Minta Potter, the widow of the man killed, the witness testified that the deceased ‘was quick to get mad and fight, and he was a brave man, and would fight at the drop of a hat.’ The State by many witnesses proved in rebuttal that the general reputation of the deceased for being a quiet peaceable citizen was good. The appellant contends that the court erred in admitting it. It was only admissible for the purpose of sustaining the reputation of the deceased after it had been attacked. In this case the evidence adduced by the defendant on cross-examination tended to prove that the deceased was aggressive, quick to take offense, and resent it with force unnecessarily. The evidence adduced by the State was admissible to remove such impression. Wharton on Homicide (3 ed.), — 269, and cases cited.”

Our holding, that the Defense opened the door to allow the questioned testimony on rebuttal, is in accord with the holdings in other jurisdictions and also in accord with the text writers.

The case of State v. Rutledge, 243 Iowa 179, 47 N. W. 2d 251, goes thoroughly into the matter. Testimony was admitted in rebuttal that deceased was a quiet and peaceable citizen, and the defense asserted that no attack had been made on deceased’s character or reputation and that the admission of the evidence constituted error. The testimony complained of was to the effect that deceased had made various telephone calls to the accused in which he abused, cursed, and threatened to come to the hospital and beat him up; that he brandished a knife while talking to defendant’s detective and told him to warn defendant that he was not a doctor but that he could operate; and that deceased was frequently intoxicated. In holding that the testimony concerning deceased’s good character as a quiet and peaceable citizen was admissible in rebuttal, the Iowa Sureme Court said:

“40 C. J. S. Homicide, § 272e, pp. 1225, 1226, states although such evidence cannot be introduced by the prosecution in the first instance, where the accused, in a homicide case in which self defense has been set up, has introduced evidence tending to show the turbulent, violent and quarrelsome character of the deceased, the prosecution may in rebuttal introduce reputation or character evidence to the contrary. 26 Am. Jur. 397, Homicide, section 349, states: ‘No general rule can be laid down for the determination of what will be held to constitute an attack by the defendant upon the character or reputation of the deceased, so as to open the door for rebuttal evidence; each-.case must be decided according to the circumstances thereof.’ . . . Most authorities hold the attack on the character of the deceased need not be direct as to his character or reputation to render admissible in rebuttal evidence of his good character as to being a quiet and peaceable citizen. Whether the attack is made by evidence of general reputation or otherwise the state may meet it by evidence of such good character. We hold the evidence introduced by the defense in this case constituted an attack upon Hattman’s character within the rule above mentioned.”

Another case is Sweazy v. State, 210 Ind. 674, 5 N. E. 2d 511. The question presented was whether testimony as to the general reputation of the deceased for peace and quietude could be introduced. The Indiana Supreme Court said:

“We think the evidence competent and material. Appellant testified in his own behalf and claimed that the deceased made an attack upon him. That he was standing in the doorway with his gun standing beside him, and as soon as the deceased observed his presence he made the remark, ‘There is the so of b’ and raised his gun and shot appellant. This is a direct attack upon the character of the deceased and put his reputation for peace and quietude in issue. While appellant’s defense was not self defense, yet he charged the deceased as being the aggressor and making the assault upon him.” The Indiana Court further quoted from Fields v. State (1892), 134 Ind. 46, 32 N. E. 780, as follows:
“ ‘The defendant testified that the deceased assaulted him, and that he apprehended great injury to life or limb from the assault. On rebuttal the court permitted the state to prove that the deceased was a peaceable, quiet man. This was not erroneous.’ ”

The question was before the New Mexico Supreme Court in State v. Brock, 56 N. M. 338, 244 P. 2d 131, wherein the specific acts testified to were as follows: Deceased came to defendant’s house and asked to borrow money to help pay for a rifle, and was refused. Thereupon, deceased made the statement that if the defendant didn’t get out of there he would throw him out or blow him out. The same threat was repeated on two subsequent occasions. Later, when the two were attempting to talk things over, deceased pulled a gtm on defendant and defendant shot first and killed deceased. In holding that testimony concerning deceased’s reputation for being a quiet and peaceable man was admissible on rebuttal, the New Mexico Court cited, inter alia, State v. Todd, 28 N. M. 518, 214 P. 899; State v. Rutledge 243 Iowa, 179, 47 N. W. 2d 251; and DeWoody v. State, 21 Ariz. 613, 193 P. 299; and quoted from the DeWoody opinion, as follows:

“ ‘It is to be observed, however, that when the defense in a prosecution for homicide puts the character of the deceased as a quarrelsome, turbulent or violent and dangerous man in issue, the state may support it by proofs that the deceased was a peaceable, quiet, and law-abiding man. Wharton on Homicide (3d Ed.) par. 269. Furthermore, the attack on the character of the deceased need not be direct as to his general reputation to render admissible evidence of his good character on the part of the state. It is immaterial in what manner the attack is made, whether by evidence of general reputation or by any other species of evidence. If the issue is raised by the defense at all, the state may meet it by evidence of general reputation as to good character. Wharton on Homicide, 3d Ed., par. 270; People v. Gallagher, 174 N. Y. 505, 66 N. E. 1113, affirming 75 App. Div. 39, 78 N. Y. S. 5. No general rule can be laid down for the determination of what will be held to constitute an attack by the defendant on the character of the deceased so as to “open the door” for rebuttal on behalf of the state, but each case must be decided according to its own circumstances or facts. 13 R. C. L., par. 219, p. 917; Kelly v. People, supra. (229 Ill. 81. 82 N. E. 198. 12 L. R. A. N. S., 1169.)”’

CONCLUSION

We have carefully considered all the assignments and find no error.

Affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. This case is before us for the second time. I was convinced that the judgment in the former appeal, Mode v. State, 231 Ark. 477, 330 S. W. 2d 88, should have been affirmed and so voted. In that case I found no reversible error nor did I find any erroneous extension by this Court of the basic rules of criminal procedure. I view these rules as sacred rights which belong to every accused whether that person be guilty or innocent and consider any court’s extension of those rules beyond its province.

The majority’s discussion of appellate procedure in felony cases gives me much concern. The majority has applied several rules of practice in a manner which seems inconsistent with the purpose of those rules.

I find no statutory equivalent in felony appeals of the mandate of Ark. Stats. § 43-2723 in capital appeals. No doubt the purpose of the legislature in enacting § 43-2723 was to make certain that no conviction of a capital offense will be allowed to stand unless the defendant received a trial which was consistent with the fundamental standards of due process and procedural fairness. The statute requires the court to review the entire record for prejudicial error before affirming a conviction. If such error does appear the conviction must be reversed, whether the error was argued by counsel or not.

The requirement in felony appeals to review all errors contained in the motion for new trial, whether or not argued in the appellant’s brief is an extension in case law of the duty imposed by § 43-2723. The same considerations underlying the statute are presented in felony appeals.

In both instances it is my view that the duty of the court to examine the record for error is at an end when reversible error is found. Of course, the court may wish to continue to examine other assignments after finding reversible error. Rand v. State, 232 Ark. 909, 341 S. W. 2d 9. If this is done and those assignments are discussed and actual findings are made, I agree that on these points there is a binding determination. On a subsequent appeal the defendant would normally be precluded from arguing those same assignments of error which had actually been passed on. The reason for this is simply that those assignments, supported by the same proof, with the same objections and exceptions, would be as much without merit on the second appeal as on the first.

On the previous appeal appellant argued only nine points in his brief. This Court in its opinion thoroughly discussed only two of these points and generally discussed the remaining seven points in the following language: “Appellant argues several other points, all of which we have examined, but we find no error other than the giving of Instruction No. 9.” Yet the record in the first appeal reveals that no less than 64 assignments of error were contained in the motion for new trial. It is my view that those assignments not argued in the nine points upon which this Court actually passed do not become the “law of the case.”

The majority under the heading “Evidence of Good Character of Deceased” devotes the major portion of its opinion to an assignment of error which was contained in appellant’s motion for new trial in the first appeal. After a careful re-reading of the briefs in that case I have been unable to find one word of argument relative to this assignment contained in the nine points upon which this Court actually passed. Except for the discovery of the absence of an objection to testimony of the good character of the deceased on the first appeal, according to the majority opinion, consideration of this assignment also would have been foreclosed under their rule of “the law of the case.”

Under my view this assignment is properly before this Court regardless of the absence .of an objection in the previous trial, since this Court did not actually pass upon this matter on the first appeal. With the point properly before us I am convinced that the majority opinion has effectively held that the entry of a plea of self-defense in a homicide case is sufficient to allow the prosecution to introduce evidence of the deceased’s reputation for peace and -quiet in rebuttal.

It has never been the rule in homicide cases in this State to allow the prosecution to introduce evidence of the deceased’s, reputation for peace and quiet when the issue of self-defense is raised. As was said in Bloomer v. State, 75 Ark. 297, 87 S. W. 438: “. . . It is now well settled that such evidence on the part of the prosecution should not be admitted unless the defendant has undertaken to attack the character of the deceased in that respect. Ben v. State, 37 Ala. 103; Bishop, Crim. Proc. (3rd ed.), § 612.”

That rule was reaffirmed in Carr v. State, 147 Ark. 524, 227 S. W. 776; and in Fisher v. State, 149 Ark. 48, 231 S. W. 181. As Justice Wood observed in Bridges v. State, 169 Ark. 335, 275 S. W. 671, the Carr and Bloomer cases are not in conflict on this point:

“. . . As stated in the opinion, the question presented by the record in the Carr case was ‘whether a character witness who testified to the good reputation of the deceased could, on cross-examination, be interrogated concerning specific acts of violence on the part of the deceased within the personal knowledge of the witness to test the soundness of the statement of the witness tending to establish the good character of the deceased.’ “The question in the case at bar, therefore, was not presented and not under consideration in the Carr case, and it was not in the thought of the court in that case to announce a doctrine in conflict with the decision of this court in Bloomer v. State, supra, which doctrine has been since approved in Fisher v. State, supra. Taking the opinion of the Carr case in connection with thu facts of that case, the language upon which the Attorney General relies only meant that the general reputation of the deceased for peace and quiet was admissible in evidence by the State to rebut the testimony given by the defendant in which an attach had been made upon such reputation, and therefore the Carr case is not out of harmony with our former decisions.” [Emphasis supplied.].

I do not agree with the majority in their conclusion that a plea of self-defense was not entered in the Bridges case, supra. Be that as it may, in my view neither the Carr case nor the Bridges case, as to the facts contained therein, aid the Court in deciding the present appeal since it was assumed in both instances that the defendant’s testimony was or was not an attack, on the deceased’s reputation for peace and quiet.

Certainly the right of a defendant upon entry of a plea of self-defense to show that the deceased was a violent and dangerous man can not be questioned. Palmore v. State, 29 Ark. 248; Edwards v. State, 208 Ark. 231, 185 S. W. 2d 556. In every case where the defendant has introduced evidence in support of his plea the issue remains to be decided whether that evidence constituted an attack on the deceased’s reputation for peace and quiet that would allow the prosecution to offer evidence of the deceased’s good reputation in rebuttal. Carr v. State, supra; Bridges v. State, supra.

In the case at bar the defendant’s evidence was not sufficient to constitute a general attack on the deceased’s reputation for peace and quiet to allow the prosecution to offer evidence in rebuttal. Although the incidents that were related in the testimony did occur over a period of time, in each instance the testimony tended to show only the ill feeling and animosity of the deceased toward the defendant.

Under this view Bryant v. State, 95 Ark. 239, 129 S. W. 295, is distinguishable from the present case. As that portion of the opinion quoted by the majority indicates the widow of the deceased testified on cross-examination that the deceased ‘ ‘ was quick to get mad and fight, and he was a brave man, and would fight at the drop of a hat.” This testimony clearly was a direct attack on the reputation of the deceased, whereas the testimony in this case is evidence of the ill feeling of the deceased toward the defendant and that the deceased was the aggressor.

The cases cited in the majority opinion from foreign jurisdictions announcing a doctrine contrary to our own, might be persuasive to me if this were a matter of first impression in this state, but, as indicated above, such is not the case. The text writers have long recognized the existence of the minority rule, and have never placed Arkansas in that group. 1 Wigmore, Evidence, § 63 (3rd Ed., 1949); Note, 3 Ark. L. Rev. 464 (1949); Anno., 34 A. L. R. 2d 451 (1954). Therefore, it is my opinion that whatever may be the ruling elsewhere, I consider our own cases sound, and here refuse to be a party to the extension of our basic rules of criminal procedure. For the reasons stated above, I respectfully dissent.

       This is particularly demonstrated in the case at bar wherein the opinion on the first appeal concludes with the language: “Appellant argues several other points, all of which we have examined, but we find no error other than the giving of Instruction No. 9.”

       This point was not argued in the appellant’s brief but was urged in the oral argument. Because of our rule previously mentioned — that in felony cases this Court examines all assignments in the motion for new trial — this point is properly before us because it was an assignment in the motion for new trial. The rule in felony cases is different from the rule in civil cases, in which latter we consider onlv the noints listed in the briefs.

       There is an enlightening discussion in McCormick on Evidence, pages 339 and 340.


source: Caselaw Access Project

author: George Rose Smith, J.

license: Public Domain

text:
    Nuckolls v. Mantooth.
    5-2392 & 5-2393
    350 S. W. 2d 512
    Opinion delivered October 30, 1961.

      Pickens, Pickens do B oyce, for appellant.

      Kaneaster Hodges, for appellee.
   George Rose Smith, J.

These two appeals were consolidated in this court. The principal case is a partition suit in which the main question is that of determining the exact proportion in which the parties own two adjoining 120-acre tracts as tenants in common. In that appeal the two appellants, Joe and Bill Nuckolls, contend that the chancellor erred in awarding each of them only an undivided two-ninths interest in each tract. The other appeal, from the probate court, involves a distribution of accrued rent and will be governed by the decision in the chancery case.

The facts are not simple. The parties’ common source of title, Samuel Anthony, formerly owned the entire 240 acres. Samuel had four children: Kate Sheppard, Edgar Anthony, Ethel Washam, and Emma Man-tooth. In 1914 Samuel conveyed the 240 acres (and other land) to two of his children, Kate and Edgar, for life, with remainder to their bodily heirs. In an earlier case, Hutchison v. Sheppard, 225 Ark. 14, 279 S. W. 2d 33, we construed the 1914 deed and held that (a) it created a life estate in the two grantees during their joint lives; (b) it created a life estate in the surviving grantee upon the death of the other grantee without bodily heirs; and (c) there remained in the grantor. Samuel, a reversion that would become an estate in possession upon the death of both grantees without bodily heirs. We also held that Samuel’s reversion could be transferred by deed, by will, or by inheritance.

Samuel died in 1917. By the residuary clause in his will his reversionary interest in the 240 acres passed to three of his children, Kate, Edgar, and Emma Man-tooth, equally.

In 1924 Kate and Edgar, who were entitled to possession as joint life tenants under their father’s 1914 deed, divided the land by partition deed. The north 120 acres, known as the Sheppard farm, went to Kate, and the south 120 acres, later known as the Hutchison farm, went to Edgar. The construction of this partition deed is really the principal point of controversy in the present appeals.

From this point on the two tracts have different chains of title. We consider first the Hutchison farm, which Edgar received in the partition. In 1927 Edgar conveyed his entire interest in this 120-acre tract to Yirgil Hutchison. In 1946 Emma Mantooth, who owned one third of the reversionary interest, died intestate. Her interest passed to her two sons, the appellees Loyd Mantooth and Herman Ireland. In 1953 Edgar died without bodily heirs.

Our decision in the first case was handed down in 1955, in a case involving only the Hutchison farm. In 1956 that farm was partitioned by a proceeding in equity. All the owners (Kate Sheppard, the two sons of Emma Mantooth, and the remote grantees of Yirgil Hutchison) were parties to that partition suit. It is now immaterial whether the court’s decree correctly determined the ownership of the parties, for there was no appeal. The partition was by public sale, and the land was bought in by Kate Sheppard as to an undivided four ninths and by Emma Mantooth’s two sons as to the other undivided five ninths. Kate died intestate in 1959, survived only by two adopted sons, the appellants Joe and Bill Nuckolls, who inherited her interest in the land.

The chancellor held that -the Hutchison farm is :owned two ninths hy Joe Nuckolls, two ninths by Bill Nuckolls, and the other five ninths by Emma Man-tooth’s two sons. This decision is plainly correct, for these interests conform to the purchase at the partition sale in 1956. Indeed, the only contention made by the appellants upon this phase of the case is that they are riot bound by that decree, it being argued that they were bodily heirs of Kate Sheppard and should therefore have been made parties to the partition suit in 1956. The short answer to this contention is that adopted children are not bodily heirs of their foster parent. Davis v. Davis, 219 Ark. 623, 243 S. W. 2d 739.

The title to the Sheppard farm presents a more difficult question. This property was not involved in any of the earlier litigation and has not been the subject of any conveyance since Kate and Edgar divided it in 1924. Inasmuch as both Kate and Edgar, the grantees in the 1914 deed, died without bodily heirs it will be seen that their father’s reversionary interest eventually ripened into complete title. One third of that reversionary interest passed under Samuel Anthony’s will to Emma Mantooth, and that one third is now owned by Emma’s two sons. The chancellor correctly so held. Another third of the reversionary interest passed by Samuel’s will to Kate Sheppard, and that one third is now owned by Kate’s heirs, her adopted sons. The chancellor correctly so held.

The dispute centers upon the remaining one-third interest in the Sheppard 120 acres. Under Samuel’s will this reversionary interest passed to Edgar Anthony. The question is, was that one third conveyed by Edgar to Kate in the 1924 partition deed! The appellees contend that it was not. In that view the interest was still owned by Edgar at his death intestate in 1953; it would now be .vested one third in Kate’s heirs, one third in Emma’s heirs, and one third in the other sister, the appellee Ethel Washam. The chancellor so held. On the other hand, the appellants contend that by the partition deed Edgar conveyed his reversionary interest in the Sheppard 120 acres to Ms sister Kate. In that view the interest is now owned by the appellants as the heirs of their foster mother.

The partition deed is perhaps open to either interpretation. It will "be remembered that in 1924 Edgar and Kate each owned three separate estates in the entire 240 acres: (1) A joint life estate as long as both were living; (2) an inchoate right to a life estate by survivorship if the other life tenant should die without bodily heirs; and (3) a one-third interest in the reversion, received under the will of Samuel Anthony. It seems probable that Edgar and Kate did not realize in 1924 that they had a reversionary interest in the land, but their deed is to be construed according to its language rather than according to the parties’ subjective intent. Stegall v. Bugh, 228 Ark. 632, 310 S. W. 2d 251.

The material parts of the partition deed read as follows:

“Whereas, the said Edgar Anthony and the said Kate Nuckolls are the owners for life as tenants in common and are in possession of the following described lands [240 acres described], and;
“Whereas, the said tenants in common acquired a life estate in said lands under ... a certain deed of conveyance from their father, Samuel W. Anthony, dated the 27th day of January, 1914 . . . and;
“Whereas, the said tenants in common have agreed upon a partition of said lands so that each may have and hold Ms or her interest therein in severalty and in dividing said lands have made the allotment to each as near in value as possible;
“Now, Therefore, for the purpose of making partition of all the real property above described, and in consideration thereof, the parties hereto do mutually covenant and agree, each with the other, as follows:
“First: The said Edgar Anthony and Auttie Anthony, his wife, for the purpose of this partition and in consideration thereof, do by these presents grant, sell and quitclaim unto the said Kate Nuckolls, all their right, title, interest, and claim, in and to [the Sheppard 120 acres].
“To have and to hold the same unto the said Kate Nuckolls, and unto her heirs and assigns forever, together with all the tenements thereon, and rights, ways, improvements, hereditaments and appurtenances thereunto belonging.
“Second: [Kate, in language similar to the above, conveys to Edgar the Hutchison 120 acres].”

The difficulty is this: Two of the preliminary recitals in the deed refer to the grantors’ life estate in the land. It is then stated that the tenants in common have agreed upon a partition “of said lands” so that each may hold his interest in severalty. The granting clause then conveys all Edgar’s “right, title, interest, and claim” to the Sheppard farm. The operative language in the deed, standing alone, would undoubtedly convey Edgar’s reversionary interest as well as his life estate. The question is whether the broad sweep of the operative language is limited by the preliminary references to the life estate alone.

We think the better view to be that the deed conveyed the reversionary interest. It is a familiar rule of construction that where there is a conflict between the recitals in a deed and its operative language the latter is controlling. Koplowitz v. Central Tr. Co., 135 N. J. Eq. 552, 39 Atl. 2d 452; Yuscavage v. Hamlin, 391 Pa. 13, 137 Atl. 2d 242. Of course this is not an inflexible rule in Arkansas, since we are committed to the principle of discovering the parties’ meaning from the language of the deed as a whole. Weatherly v. Purcell, 217 Ark. 908, 234 S. W. 2d 32. Nevertheless, recognized rules of construction may be of value in the search for the parties’ intention.

In this deed two of the prefatory paragraphs refer to the life estates vested in the grantors. But a third .preamble contains no such restriction; instead, it declares broadly that the parties’ purpose is to effect a division “of said lands so that each may have and hold his or her interest therein in severalty.” Similarly the granting clause, the most significant part of the deed, purports to convey all the grantors’ interest in the land, without reservation. The parties’ motive for partitioning the reversionary interest, which 'was held in common, was equally as strong as their motive for partitioning the life estate. In the circumstances we think the stability of real property titles will best be served by holding that these grantors meant all that they said, thus giving full effect to the plain language in the granting clause of their deed.

The appellees insist that in the earlier case, Hutchison v. Sheppard, supra, we held that the partition deed had the effect of dividing only the life estate that was jointly held by Edgar and Kate. We do not so construe the opinion. Our language was directed toward distinguishing between the joint life estate on the one hand and the survivorship life estate on the other. We held that the partition deed was effective as to the former but not as to the latter. We did not even consider what effect the deed might have had upon the reversion, for, as the opinion pointed out, the proof did not show when Samuel Anthony died and therefore did not show who owned the reversion at the time of the partition. There was no occasion for the court to speculate upon the abstract possibility that Edgar and Kate might have had an interest in the reversion in 1924 and that such an interest might or might not have been conveyed by the partition deed.

We conclude that the appellants are correct in contending that the Sheppard farm is owned one third by Joe Nuckolls, one third by Bill Nuckolls, one sixth by Loyd Mantooth, and one sixth by Herman Ireland. It follows that the chancery decree should have fixed the parties’ ownership in that proportion and that the probate court should have distributed the disputed portion of the rent in the same ratio, so that Joe and Bill Nuckolls would receive $166.44 each and- the two sons of .Emma Man-tooth would receive $83.22 each.

It is also contended by the appellants that the chancellor erred in ordering a public sale of the land instead of a division in kind. Our review of the proof convinces us that the weight of the.evidence supports the trial court’s conclusion that the lands cannot be fairly divided in kind.

With respect to the Hutchison farm the chancery decree and the probate court judgment are affirmed; with respect to the Sheppard farm they are reversed and the causes remanded for further proceedings.

McFaddin, J., would affirm the decree and judgment in all respects.


author: Paul Ward, Associate Justice.

text:
    Gilmore v. Joers.
    5-2479
    350 S. W. 2d 520
    Opinion delivered October 30, 1961.

      Curtis L. Ridgw ay, Jr.,, for appellant.

      Wood, Chesnutt & Smith, Wootton, Land & Matthews and Elbert Coolce, for appellee.
   Paul Ward, Associate Justice.

Before reaching the merits of this case we first dispose of appellees’ motion to dismiss the appeal for failure of appellant to comply with Rule 9 (d) of this Court. This rule requires appellant to present an abstract or abridgment of the material parts of the pleadings, proceedings, etc. “as are necessary to an understanding of all questions presented to the court for decision”. Regardless of the merit of such a motion at the time it is filed, we do not dismiss an appeal on this kind of motion. However, as provided in Rule 9 (e), appellee is given the option to stand on his motion or submit a supplemental abstract. In the first event, if the motion has merit, we will affirm on final submission. Here, appellees have chosen to furnish a supplemental abstract, so we now proceed to a consideration of the case on its merits.

In order to clarify the issues presented we set out below uncontroverted facts as we have gleaned them from the record. Prior to the death of Mose Klyman in 1956 he owned a parcel of land (described by metes and bounds), consisting of about 20 acres, near Hot Springs and abutting Highway No. 70 on the northwest side of the highway. Approximately two years before his death he deeded a portion of the above mentioned land (about 5 acres) to appellees. Appellees purported to build nice residences on this land, and it is their contention (not disputed) that they had an understanding with Klyman at the time of the purchase that Klyman would restrict the rest of his lands (containing 14.2 acres) to residential purposes. Some two years after Klyman’s death appellees filed suit in chancery court (Case No. 31617) against the executor and heirs of Klyman to reform his deed so as to include the above mentioned restriction, and to have such restrictions impressed on the said 14.2 acres by the court. While this suit was pending and on April 30, 1958 Betty Leonard Reinagle, one of the heirs of Klyman, bought the interests of all the other heirs in and to the said 14.2 acres. On May 24, 1958 Betty Reinagle sold and conveyed the land to Rosa Lee Gilmore, appellant herein. The deed of conveyance to appellant contained a provision that the north 8 1/4 acres were to be restricted to residential purposes, and also that the rest of the land (the south 5.8 acres) were likewise to be restricted, except that appellant could erect and maintain a nursing home thereon limited to twelve patients. These restrictions Avere made binding on appellant, her heirs, executors, administrators or assigns. On this same day (May 24, 1958) a stipulation was entered into by the attorneys (in the suit above mentioned) agreeing (among other things) to a consent decree (in said Case No. 31617) restricting the use of the 81/4 acres and the 5.8 acres as above set out. Also, on the next day, appellant and Betty Reinagle signed a written agreement wherein appellant consented to the entry of a decree imposing the restrictions previously mentioned.

Following the above, the Chancery Court, on May 27, 1958, entered a decree imposing the restrictions on the lands in the manner heretofore mentioned, and no appeal was taken therefrom.

It is not disputed that appellant had for many months violated the terms of the agreement and the decree of the court by maintaining on the south 5.8 acres a rest home for more than twelve people, when, on November 29, 1960, appellees filed a petition in said Case No. 31617 asking that appellant be held in contempt of court for said violation.

On December 16, 1960 appellant filed a response to the citation combined with a motion to dissolve the injunction issued on May 27, 1958. In this pleading appellant asked to have the citation dismissed for two reasons, to-wit: (a) she was not a formal party to the injunctive action, and had no knowledge thereof, and: (b) appellees had acquiesced in her violation. After .a hearing the trial court found that appellant had actual knowledge of the restrictive covenants heretofore mentioned, and that she admits to violating them. The court then ordered appellant to reduce the patients to twelve within sixty days and-not to exceed-that number in the future. Appellant prosecutes this appeal for a reversal on three grounds.

First, we see no merit in appellant’s contention that she had no notice of the existence of the injunction relative to the occupancy restrictions. She signed the agreement mentioned heretofore which makes reference to the pending suit. This agreement states that the parties “may cause a decree to be entered in said cause restricting” the nursing home to twelve patients. Also her deed shows very clearly she knew of the restrictions.

Appellant’s second point for reversál is essentially the same as the first point and therefore need not be discussed. Appellant, in her reply brief, cites Mullane v. Central Hanover Bank & Trust Co. 339 U. S. 306, 70 Sup. Ct. 652, 94 L. Ed. 865, for authority that an injunction cannot be maintained against a person on constructive-notice. We have read the cited case and find it does not apply to facts in the case before us. Moreover, the Chancellor found, and wé also find from the record, that appellant had actual notice.

Finally, appellant contends, that “The injunction should be.dismissed because of the appellees’ laches”. In support it is stated that appellant began the nursing home in May, 1958, that her operation has been open and notorious, and that appellees must have known that she had more than twelve patients because they lived near by and regularly passed in front of her premises. These facts, says appellant, constitute laches on the part of appellees which operates to her financial loss. We need not examine authorities cited by both sides because we find that the evidence fails to show any undue delay on the part of appellees in attempting to assert their rights. Although appellant says she has operated the home for approximately two years, yet she nowhere points out, in her brief, the date she acquired more than twelve patients. On the other hand one of the appellees testified that he first learned (from one of the patients) of the excessive number sometime in the spring of i960 before his petition was filed in November of that year. Under this state of the record we hold that appellant has failed to discharge the burden to show facts constituting laches on the part of appellees. Conceding (without so holding) that appellant’s motion amounts to a plea of laches, still it was an affirmative plea and the burden of proof was on her. See: White v. Williams, 192 Ark. 41, 89 S. W. 2d 927. There is an exhaustive treatment of laches in relation to the enforcement of restrictive building covenants in 12 A. L. R. 2d at pp. 397 and 398. Among other things it is there stated:

“The nature of the relief allotted to one who seeks to enforce a restrictive building covenant lies in the discretion of the court: an injunction may be granted requiring defendant to cease violation of the covenant, or plaintiff may be held entitled only to damages for breach of the covenant. Among the grounds for denial of injunctive relief is a showing of plaintiff’s guilt of laches in failing to act more promptly to enforce his rights, and in the establishment of such guilt the burden of proof is on the defendant.
“Exactly what conduct on the part of plaintiff does or does not amount to laches is a question to be answered in the light of facts presented by each individual case. Mere delay in bringing suit does not, in itself, constitute laches: it has been held that laches was not established where the period between the violation of the building covenant and the action to enforce it was as great as twelve years . . .”

In this case we think the trial court wisely refrained from punishing appellant for contempt and correctly required her to abide by the imposed restrictions in conducting the rest home, and its decree is therefore affirmed.

Affirmed.


author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice,

text:
    Helton v. Sisters of Mercy of St. Joseph’s Hospital.
    5-2501
    351 S. W. 2d 129
    Opinion, delivered October 30, 1961.
    [Rehearing denied December 11, 1961.]

      McMath, Leatherman, Woods & Youngdahl, and Belli, Ashe é Gerry, for appellant.

      Wootton, Land & Matthews, for appellee.

      Spitzberg, Bonner, Mitchell & Hays, amicu,s curiae on behalf of Arkansas Hospital Association.
   Sam Robinson, Associate Justice.

This action arose out of injuries sustained by Sharon Diane Helton, a minor, while being examined at appellee’s hospital in Hot Springs. The suit was filed by the little girl’s father as next friend, and by the father individually, against the Sisters of Mercy of St. Joseph’s Hospital in Hot Springs. On November 22, 1960, appellant filed a tort action in the Garland Circuit Court, alleging that on the 12th day of November, 1959, Sharon was delivered to St. Joseph’s Hospital so that a physical examination could be made; that she was given a general anaesthetic and placed upon a “cystotable in the usual manner required by these examinations”; that employees of the hospital carelessly and negligently injected sodium hydroxide into the bladder of the little girl, instead of sodium iodide; that as a result of such negligence Sharon suffered severe permanent injuries, among which was the destruction of her bladder; that it is now necessary for her to wear an artificial bladder on the outside of her body, and she will have to wear it for the rest of her life. The complaint prays for judgment in the sum of $386,250. In response to the complaint, the defendant hospital filed a motion to dismiss, alleging that it is a charitable institution and that as such it is not liable in tort.

On January 25, 1961, appellant filed a second suit against appellee, alleging the same injuries and the same circumstances involved when the injuries were sustained, but instead of alleging that the injuries were caused by the negligence and carelessness of the employees of the defendant hospital, the complaint states “that on or about November 12, 1959, the plaintiff, Sanders Helton, entered into a contract with the defendant under the terms of which for a good and valuable consideration the defendant undertook to furnish to defendant’s daughter, Sharon Diane Helton, an operating room, proper personnel and proper facilities for a cystogram and cystoscopy on plaintiff’s daughter. The defendant undertook that the operating room would be safe and suitable, and that its agents, servants and employees would perform their duties in a reasonable and proper manner and that the said Sharon Diane Helton would be fully protected against all harm that might be reasonably anticipated and forestalled by normal hospital operating procedures. That plaintiff Sharon Diane Helton was a third party beneficiary of said contract.”

By agreement of the parties the cases were consolidated. Defendant filed a motion to dismiss the second suit on the ground that although plaintiff had attempted to allege a breach of contract, the complaint nevertheless sounds in tort and that defendant is therefore not liable.

Defendant produced evidence by way of dispositions going to prove that the hospital is a public charity. Although given ample opportunity, plaintiff produced no evidence in contradiction of defendant’s testimony on that point. After considering the evidence on the proposition of whether the hospital is a charitable institution, and the argument of counsel, the trial court granted the motions to dismiss both cases. Mr. Helton on behalf of his minor daughter and himself has appealed.

There are three questions involved:

(1) Is appellee, “Sisters of Mercy of St. Joseph’s Hospital”, a public charity as a matter of law, according to 'the undisputed evidence!

(2) Of course if it is not a public charity, it is liable in tort. On the other hand, is it liable in tort even if it is a public charity?

(3) If the hospital is a public charity and not liable in tort, is it liable on the alleged contract?

We will deal with the questions in the order named. First, is the hospital, according to the evidence, a public charity as a matter of law? The answer is yes. There are several things that inevitably lead to this conclusion. The articles of incorporation provide: “The purpose and essence of this corporation is and shall be purely benevolent, charitable, religious and philanthropic, and it is expressly declared and provided that this Corporation is not for gain or individual profit, and that none of its property, real, personal or mixed, shall ever be used or expended except in carrying into effect the legitimate ends and purposes of its being, and that no person or member shall gain or derive individual profit therefrom.” All taxing authorities consider it a charitable institution; it pays no taxes; it is exempt from sales tax and state and federal income taxes. It is sponsored by the Sisters of Mercy, a Catholic order, but its doors are always open to anyone, regardless of creed, needing hospitalization. No one has ever been turned away because lié could not afford to pay. No one has ever made oiie: dime profit out of the institution. The Sisters who work at the hospital receive no pay. Over a five-year period the actual physical labor performed for the hospital by the Sisters, figured on a labor basis alone, was worth $170,000 to the institution. During the same period, $328,373 in cash was donated to the hospital by charitably inclined people. True, the hospital has accumulated the sum of about $600,000, which it hopes to use in expanding and improving its facilities, but if it had been compelled to pay taxes and had not had the services of the Sisters donated as charity, and the gifts of money, there would be no surplus; in fact, the hospital in all probability would be bankrupt.

In addition, a matter of considerable weight to be considered in reaching a conclusion as to whether the hospital is a charitable institution is the fact that the same hospital has heretofore been declared by this Court to be a public charity. Hot Springs School Dist. v. Sisters of Mercy, 84 Ark. 497, 106 S. W. 954. That case was decided in 1907, and there Judge Hart, speaking for the Court, said: “One of the witnesses here said that she had been a member of the Sisters of Mercy for forty years, that the whole object of the order was charity, and that their whole life was devoted to it. In response to the question, ‘This order, the Sisters of Mercy, what is the general work of the order, and to what do your vows pertain?’ she answered, ‘To the poor and sick and educational.’ In this case the buildings were constructed and fitted for use solely as a public hospital. The members of the order receive no compensation for themselves. Their earnings and their lives are devoted to charity. ’ ’

The evidence in the present case is to the same effect. There is no material difference in the operation of the hospital today and the operation when the above mentioned Sisters of Mercy case was decided many years ago. The hospital was established in 1888 and incorporated under Ark. Stat. § 64-1301 in 1951. In the case at bar Mother Mary Bertram Daley testified that “We [Sisters of Mercy] are founded to care for the poor, the sick, and the ignorant. That is a very broad field. We take the vows, one of them being poverty and anything that comes to us by our work or given to us as a gift becomes the property of the community and is used for the works of the community.” In Crossett Health Center v. Crosswell, 221 Ark. 874, 256 S. W. 2d 548, there was evidence to the effect that the hospital was not a charitable institution, but here there is no such evidence.

Next, to say that a public charity is liable in tort, we would have to overrule cases holding just the opposite. Woman’s Christian Nat’l. Lib. Ass’n. v. Fordyce, 79 Ark. 532, 86 S. W. 417, and Fordyce v. Woman’s Christian Nat’l. Lib. Ass’n., 79 Ark. 550, 96 S. W. 155, 7 L. R. A., N. S., 485. Arkansas Baptist College v. Wilson, 138 S. W. 2d 376, was a suit on a teacher’s contract. This Court said: “If this were an action to recover for the tort of the trustees, then appellants would be protected under the doctrine of the Fordyce case, . . .”

In Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S. W. 2d 529, decided in 1957, one of the issues was whether the North Little Rock Boys’ Club, a charitable corporation, was liable in tort. We pointed out that to hold that such liability existed, we would have to overrule the Fordyce and other cases, and we said: “This we refuse to do.” And it was further said in the Cabbiness case: “The Fordyce cases were decided in 1906 and the rule of immunity of a charitable corporation from tort liability, as there recognized, has become a rule of property in this State. It is for the Legislature, rather than the courts, to effectuate a change, if such is desired.” [Emphasis added.]

In a most able manner counsel for appellant urge us to overrule cases holding a charitable institution is not liable in tort, and much authority from other states has been cited indicating that the trend is along that line. But in view of our prior holdings, and especially the strong language in the Cabbiness case, we do not feel like taking the liberty of doing so. It will be noticed that in the Cabbmess case it is stated that the rule of immunity of a charitable corporation from tort liability has become a rule of property. In Pitcock v. State, 91 Ark. 527, 121 S. W. 742, Chief Justice McCulloch, speaking for the Court, said: “Decisions which become rules of property should never be overruled, whether they are right or wrong.” And in Burel v. Grand Lodge I.O.O.P., 163 Ark. 131, 259 S. W. 369, it is said: “The decision has become a rule of property, and should not be disturbed, even if the court was otherwise disposed to do so.”

We next come to the proposition of whether the hospital can be liable for the injuries sustained by the little girl on the theory that f was a breach of contract. There was no express contract setting out the duties and the obligations of the parties. Mr. Helton delivered his little girl to the hospital for an examination. At that time he signed an authorization for the examination to be made. In this written document neither party agrees to do anything, and it cannot be called a contract in any sense of the word. In order to invoke the doctrine that it was the duty of the hospital to use due care, and liability on its part for the failure to use such care, resort must be had to operation of law. In ordinary circumstances, no charitable institution being involved, the law would imply that it was the duty of the hospital to use due care, and there could be liability for the failure to use such care. But the law does not imply something that is against public policy. How can it be said that the law implies an obligation to use due care, and liability for the failure to use such care, where the public policy of the state imposes no duty and liability in that respect? The Cabbiness case clearly points out that immunity of a charitable corporation from liability for negligence is so thoroughly established in this State that the doctrine has become a rule of property. In these circumstances we cannot say that the law implies that it - tiie duty of the hospital to use due care, and liability to. not doing so. It would appear that if there is any implication supplied by law it would he that there is no liability for the failure to use due care. “The law never implies an agreement against its own restrictions and prohibitions.” Los Angeles Warehouse Co. v. Los Angeles County, 139 Cal. App. 368, 33 P. 2d 1058.

In Lovich v. Salvation Army, 81 Ohio App. 317, 75 N. E. 2d 459, plaintiff was injured by eating contaminated food furnished by the Salvation Army. The complaint was treated as relying on an implied warranty of fitness of the food. The court said: “We think by the greater weight of authority the action in this case is ex delicto and not ex contractu in the sense that it is based upon the violation of an obligation imposed by law ... It would seem that whether the liability is based upon a breach of implied warranty or negligence, that the result is the same. The action for damages for personal injury and illness is tortious in nature and the rule of limited liability in favor of eleemosynary or charitable institutions must he applied.”

In Rudy v. Lakeside Hospital, 115 Ohio St. 539, 155 N. E. 126, the hospital lost jewelry belonging to a patient. The patient filed suit and claimed a breach of contract. The court said: “Under the theory of nonliability of charitable instutions adopted by this court, as heretofore indicated, we are unable to make any distinction between cases involving damages to the person of a patient and damages to his property, where such are caused by the wrongful act of an employee.” The court held there could be no recovery on the alleged breach of contract.

In Greatrex v. Evangelical Deaconess Hospital, 261 Mich. 327, 246 N. W. 137, 86 A. L. R. 487, a baby born in the hospital was by mistake given to the wrong person and was never returned. The father filed suit against the hospital. The court said: “Plaintiff, in his suit against the hospital, first declared on a tort count, then on an assumpsit count, and then added the common counts. Recognizing the rule laid down hy this court that a hospital, formed for non-profit purposes and supported by the benevolence of its contributors, cannot be held liable for the torts of its agents or employees, he discontinued all the counts of his declaration except the second one in assumpsit . . . Naming or labeling a count assumpsit does not make it such, when it is apparent on its face that it is one in tort. Nor is there any magic in the use of one term instead of another, when the gravamen of the act' complained of is the negligence or mistake of a servant of an eleemosynary institution, exempted from liability by law under these circumstances. ’ ’

In Davin v. Kansas Medical, Missionary & Benevolent Ass’n., 103 Kan. 48, 172 Pac. 1002, a patient was injured by the failure of the nurse to stay in the room with the patient. The husband of the patient had specifically contracted with the hospital that a nurse would be kept with the patient. The court held there could be no recovery on the alleged contract and gave as one of the reasons “that public policy encourages the support and maintenance of charitable institutions and protects their funds from the law of litigation.”

Of course, no one even contends that a charitable institution is not liable on its contracts such as the one involved in the above mentioned case of Arkansas Baptist College v. Wilson, 138 S. W. 2d 376, where a teacher’s contract was the issue. But our conclusion is that there can be no recovery on the contract alleged here and, since the appellee is a public charity as a matter of law and is therefore not liable in tort, and is not liable on the alleged contract, the trial court did not err in dismissing both complaints. This does not mean, however, that the little girl and her parents are without any remedy. Of course, the indivual or individuals alleged to have caused the injuries by their negligence are not immune to a suit for damages, and Ark. Stat. § 66-517 gives the injured parties in a ease of this kind a direct cause of action against any insurance company that has issued a liability policy applying to the situation.

Affirmed.

McFaddin, J., concurs in part and dissents in part.

Johnson, J., dissents.

Harris, C. J., not participating.

Ed. F. McFaddin, Associate Justice,

concurring and dissenting.

The Majority Opinion has clearly and succintly stated the three points decided in this case; and I agree with the Majority on the first two of these points, but I dissent as to the third point.

I. The first point decided by the Majority is that the Hospital here sued is a public charity under the uncontradicted evidence in this case; and I agree with the Majority on this point. This issue cannot be determined by merely showing the statute under which the Hospital was organized, nor by showing what we held concerning this same Hospital in an earlier case. The fact question is: was the Hospital a public charity at the time of the events herein concerned? The testimony was conclusive on this issue and left nothing to submit to a jury. Thus the Crossett Health Center case (Crossett Health Center v. Crosswell, 221 Ark. 874, 256 S. W. 2d 548) affords appellants no support, because in the Crossett case there was an issue of fact as to the public charity, whereas there is not such issue here.

II. The second point decided by the Majority is that the Hospital, as a public charity is not liable in tort under the laws of this State. We are told that the trend of modern cases is against the immunity of hospitals in situations such as that presented in the case at bar; but any such trend is for the Legislature and not for the Courts. As the writer of the opinion in Cabbiness v. City of North Little Rock, 228 Ark. 356, 307 S. W. 2d 529, I still adhere to the statement there contained: “ ... the rule of immunity of a charitable corporation from tort liability, as there recognized, has become a rule of property in this State. It is for the Legislature, rather than the courts, to effectuate a change, if such is desired.”

III. The third point decided by the Majority is that the Hospital is not liable in contract for any of the injuries sustained by the little girl; and it is on this third point that I disagree from the Majority. The plaintiffs filed two cases: the first was in tort, and the second was in contract. These two cases were consolidated in keeping with our holding in Kapp v. Bob Sullivan Chev. Co., 232 Ark. 266, 335 S. W. 2d 819; and the Circuit Court dismissed both cases. I maintain that the plaintiffs were entitled to show their damages arising from breach of the contract. It is not now necessary to determine just how limited are the damages which might be recovered by appellants for breach of contract, but I stoutly maintain that appellee did enter into a contract with appellant and did breach the contract and is liable for such breach of contract, quite independent of the tort action.

Our Arkansas cases recognize that there may be liability for breach of contract quite independent from liability for the commission of a tort. The opinion in the case of Arkansas Baptist College v. Weeks was delivered by this Court on March 25, 1940. It is not reported in full in the Arkansas Reports, but is reported in full in 138 S. W. 2d 376. The full text of the opinion, as copied from the files of the Arkansas Supreme Court, is attached as an appendix to this dissent. That opinion clearly recognizes the liability of a public charity in actions ex contractu. Actions for breach of contract may be based on either an express or an implied contract. When Mr. Helton entered his little daughter in the Hospital, as a paying patient, for the examination, he was required to sign an authorization for medical and surgical treatment for the cystogram and cystoscopy that was to be undertaken. He agreed to pay for services to be rendered, and certainly there was a contract. So, I am convinced that the Trial Court was in error in dismissing the action ex contractu without allowing the plaintiffs to put on their proof.

It is nothing new in Arkansas to hold that a defendant exempt from tort liability may nevertheless bo liable for breach of contract under the same state of facts. St. Paul-Mercury Indemnity Co. v. City of Hughes, 231 Ark. 530, 331 S. W. 2d 106, is a case in point. It is well established in Arkansas that a municipal corporation is not liable for the torts or wrongful acts of its officers. Trammell v. Town of Russellville, 34 Ark. 105, 36 Am. Rep. 1; Gregg v. Hatcher, 94 Ark. 54, 125 S. W. 1007, 27 L. R. A. N. S. 138; Dickerson v. Town of Okolona, 98 Ark. 206, 135 S. W. 863, 36 L. R. A. N. S. 1194; Gabbiness v. City of North Little Rock, supra. A municipality is exempt from liability for torts just as a public charity is exempt from liability for torts: the rule is exactly the same. Tet, in the case of St. Paul-Mercury Indemnity Co. v. City of Hughes, supra, the city of Hughes had received a truck that belonged to St. Francis County and had damaged the truck, and we held that the City of Hughes could be held liable for the damages to the truck because the complaint was framed as an action ex contractu. We said:

“So we hold that the appellant as subrogee of the County could sue the City for breach of bailment contract by action ex contractu as entirely separate from a tort action. Of course, the appellant has a narrow opening through which to direct its efforts at recovery because the City is not liable in tort, as previously pointed, out. But we must conclude that the demurrer of the City should have been overruled by the Circuit Court. ’'

Thus, we have recognized that a municipality exempt, from an action in tort may be sued for damages for breach of contract on the same state of facts. The rule likewise applies to a charitable corporation, and I stoutly dissent from the Majority Opinion which holds that there can be no recovery for breach of contract in this case. I recognize that the authorities are divided as to whether a charity, though immune from tort liability, may be liable for breach of contract upon allegation of facts which would also sustain a cause of action in tort. The holdings on both sides of this question are summarized in the Annotation in 25 A. L. R. 2d 29, at page 48; and I think the better holdings are in accord with the view that there may be liability in an action for breach of contract, even though the facts alleged may also give rise to an unmaintainable cause of action in tort. I therefore respectfully dissent from that portion of the Majority Opinion which holds that there may be ho cause of action for breach of contract in this ease.

APPENDIX

Full text of the opinion of the Arkansas Supreme Court in the case of Arkansas Baptist College et al, Appellants, v. O. J. Wilson, Appellee, No. 4-5861, delivered on March 25, 1940:

“McHaney, J.
“On February 1, 1939, on the verdict of a jury, a judgment was entered in the Pulaski Circuit Court against appellants in favor of appellee in the sum of $733.68, which represented the balance of salary of appellee as teacher in appellant college, including interest to that date.
“On May 1, 1939, an execution was issued on said judgment against appellants and a levy was made on certain printing presses and other printing office equipment and machinery belonging to the college. Whereupon appellants filed in said court a petition to quash said execution ‘for the reason that the Arkansas Baptist College is a charitable corporation, incorporated under Chapter VII, Paragraphs 1788-1795 inclusive Crawford & Moses Digest” (2252 et seq. Pope’s Digest), and attached to said petition a certified copy of the articles of incorporation. It was also alleged that the property levied on is the property of said college, ‘a charitable corporation, organized and operated for charity, and not for profit or gain,’ and that the trustees, appellants other than the college, hold its property as trustees and not for themselves. The court overruled their petition to quash and they have appealed.
“For a reversal of this judgment appellants cite and strongly rely on the holding of this court in Fordyce v. Woman’s Christian National Library Assn., 79 Ark. 550 (96 S. W. 155), where it was held that ‘the property of a charity cannot be sold under execution issued on a judgment rendered for the nonfeasance, misfeasance or malfeasance of its agents or trustees.’ Headnote 4. There a public charity was sued to recover damages for personal injuries, a tort action, while here the action was to recover for services rendered based on a contract of employment. The articles of association of the college specifically confer power on the trustees ‘to acquire and hold property, sue and be sued, and contract in the corporate name ’ etc. Here it made a contract with appellee to teach school for it, a matter within the very purposes of its creation. To hold that it could thus contract and not become liable for a breach thereof, or that its property conld not be subjected to payment of a judgment for such a breach, would be to contradict the powers given it in its charter, ‘to sue and be sued,’ and to contract. “If this were an action to recover for the tort of the trustees, then appellants would be protected under the doctrine of the Fordyce case supra. But such is not the action. See Ward v. Sparks, 191 Ark. 893, 82 S. W. (2d) 5. A case directly in point, cited by appellee, is Hall Moody Institute v. Compass, 108 Tenn. 583.
“The court correctly denied the petition to quash execution, and its judgment is accordingly affirmed.”

       For those interested, there is a splendid Annotation in 25 A.L.R. 2d 29, entitled, “Immunity of non-governmental charity from liability for damages in tort”; and the holdings of the various states are there listed and discussed.

       Black's Law Dictionary, 4th Ed., says: “In both the civil and common law, rights and causes of action are divided into two classes — those arising ex contractu (from a contract), and those arising ex delicto (from a delict or tort). See 3 Blackstone’s Commentary 117.”

       One of the legal firms in this case is Belli, Ashe and Gerry of San Francisco, and one of the members of that firm is Melvin M. Belli, who has written a Treatise on MODERN TRIALS; and Mr. Belli, in discussing medical malpractice in Volume 3, § 349, states: “In a suit on contract, the measure of damages is different than in tort. By suit on the breached promise, express or implied, there could be no recovery for pain and suffering, and the damages would be limited to the actual loss directly traceable to the breach.”

       Volume 200, page 1189, of the Arkansas Reports lists the result in the case, but does not contain the opinion. For several years prior to 1943, there was a policy of omitting some opinions from the Arkansas Reports, hut this practice was discontinued in 1943, and, since the 205th Arkansas, all opinions of this Court are reported in full in the Arkansas Reports.


author: Jim Johnson, Associate Justice.

text:
    Ark. State Highway Comm. v. Kennedy.
    5-2357
    350 S. W. 2d 526
    Opinion delivered October 30, 1961.

      Dowell Anders and Thomas B. Keys, for appellant.

      Kaneaster .Hodges, for appellee.
   Jim Johnson, Associate Justice.

This is an eminent domain action. Appellant, Arkansas State Highway Commission, brought suit to acquire an easement across land owned by Mrs. S. E. (Eliza) Kennedy, appellee. This land was part of a larger tract of 2.6 acres upon which Mrs. Kennedy’s residence was located. Appellant deposited $650 as estimated just compensation.for the tract taken. Appellee claimed severance damages to the entire property. The jury returned a verdict in the amount of $2,500 for Mrs. Kennedy.

For reversal, appellant relies upon the following points:

1. The trial court committed reversible error in not striking all the testimony of O. E. Guinn.

2. The trial court committed reversible error in permitting the landowner’s attorney to tell the jury that they could in effect return a quotient verdict.

3. The trial court committed reversible error in not granting appellant’s motion for new trial based upon the ground that there was no substantial evidence to support the verdict of the jury.

STRIKING TESTIMONY

The testimony of O. E. Guinn which appellant complains of was obtained by it on cross examination and is as follows:

“A. Let me answer your question in this way. I had no previous knowledge of any land selling there and Mr. East came in my office and asked if I knew of any land being sold or had been sold there and I told him I did not, that Mr. Hinkle handled most of the land in that area, that I had no knowledge, that he could talk to Mr. -Pratt.. I didn’t arrive at any..figure while I was at Mr. Kennedy’s house. I did check into some land that had been taken by the Highway Department and that definitely did enter into my figure.
“Q. In other words, the figure that you got from checking what the Highway Department had paid for lands taken entered into your opinion as to market value of this property?
“A. No, sir. I would say the land of the property taken. I would definitely say yes.”

The trial court instructed the jury as follows:

“You are instructed to disregard that portion of the testimony of the witness O. E. Guinn which was based on settlement payment by the State Highway Commission on certain property owners in this vicinity. The Court has instructed you on the proper measure of damages; and insofar as damages are concerned, that is the rule you will follow in the determinations in this case.”

Notwithstanding the trial court’s instruction appellant argues that it was reversible error for the court to refuse to strike all of Mr. Guinn’s testimony. In support of its argument appellant cites Yonts v. Public Service Company of Arkansas, 179 Ark. 695, 17 S. W. 2d 886, wherein this Court said:

“It is next contended by appellant that the court erred in admitting testimony as to what other lands in the vicinity cost plaintiff. This testimony was not competent. This court and many others have held that it is proper to admit testimony as to the price at which other lands in the vicinity sold, together with testimony as to the similarity or dissimilarity of the lands, but that means sales in the ordinary course of business, and not sales to the service company who were seeking to condemn land for their dam and reservoir. Evidence showing what the company seeking to condemn has paid for other lands would probably be taken by the jury as indicating the market value, when, as a matter of fact, it does-not tend to show the market value of the land. A company condemning land might be willing to give more than it was worth and the owner of land might be willing to take less than it is worth, that is, less than its market value, rather than have a lawsuit. Moreover, when a company seeks to get land or condemn it for public uses, having the power to condemn, the land owner would probably come to some agreement with him rather than have a lawsuit, and this agreement would shoAV a compromise rather than the market value of the land.
“What the party condemning has paid for other property is incompetent. Such sales are not a fair criterion of the value, for the reason that they are in the nature of a compromise. They are affected by an element which does not enter into similar transactions made in the ordinary course of business. The one party may force a sale at such a price as may be fixed by the tribunal appointed by law. In most cases the same party must have the particular property, even if it costs more than its true value. The fear of one party or the other to take the risk of legal proceedings ordinarily results in the one party paying more or the other taking less than is considered to be the fair market value of the property. For these reasons, such sales do not seem to be competent evidence of the value in any case, whether in a proceeding by the same condemning party, or other cases.”

This Court has frequently said the jury is accorded great latitude in considering testimony relative to damages in such cases as here presented. Arkansas State Highway Commission v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S. W. 2d 173; Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S. W. 2d 796; City of Harrison v. Moss, 213 Ark. 721, 212 S. W. 2d 334; Arkansas State Highway Commission v. Jelks, 203 Ark. 878, 159 S. W. 2d 465. Even so, under the rule in the Yonts case, supra, we Avould have no choice but to reverse the instant case had appellant introduced evidence as to the figures of any evaluations by the State Highway Commission or the figures for which any land was acquired by it, but such is not the case here. As stated above, the answer by Mr. Guinn, of which complaint is made, was elicited on cross-examination; no figures were given but no doubt such figures would have been given if the cross-examiner had further pursued his line of questioning. The rule in the Yonts case, supra, is a prohibition against the introduction of certain testimony by the landowner and not a prohibition against the knowledge a witness may possess. Mr. Guinn said that he had checked the appraisals by the appellant in the area and this information was a part of his knowledge upon the subject of valuation; he candidly stated that such knowledge entered into his figure.' The record reveals that Mr. Guinn’s evaluation was the lowest introduced by appellee.

Mr. Guinn gave his opinion as to the value of the property before the taking, detailing the size of the tract, the location and square footage of the residence, the type of construction and the area and trees taken absolutely. He is in the real estate business at Newport, Jackson County, and has knowledge of market values in Jackson County. He was well qualified to give his opinion testimony as to the values before and after the taking. Therefore, we are impelled to the conclusion that the trial court committed no error in refusing to strike Mr. Guinn’s testimony.

QUOTIENT VERDICT

Appellant contends that the landowner’s attorney told the jury that they could in effect return a quotient verdict. The record in regard to this matter is as follows:

By Condemnor’s Attorney:

“In his closing argument to the jury attorney for the landowner stated to the jury that if you added the differences of the testimony of all of the landowner’s witnesses you would get an average difference of a certain sum of money; that if you added the differences between the testimony of all eight witnesses you would get another average figure and that if you added the average differences between, tbe .top witness for the landowner and the top witness for the State you would get a certain figure.
“The plaintiff objects to the attorney for the landowner being permitted to make such an argument to the jury as it tells the jury they can rise an improper method in arriving at .the damages sustained by the landowner, and that the failure of the court to so instruct the jury prejudiced the .State of Arkansas.
‘ ‘ That it was agreed prior to arguments by counsel that the record might be preserved with respect to this objection.”

By Landowner’s Attorney:

“I would like for the record to show that counsel for the property owner has said at the same time that he stated in his argument he was not suggesting this was a proper method of arriving at a verdict but was simply pointing out the range the testimony took from the stand. I would like to point out also the blackboard used simply gave the testimony of the witnesses and did not add or average up the figures.”

By The Court:

“Thereupon, the Court remarks that because of agreement that counsel for the State Highway Commission might make up his record after argument was completed rather than interrupt argument of counsel for the landowner and recalls that Mr. Hodges stated to the jury that he did not suggest that averaging the figures testified to by witnesses -would be a proper measure of damages but merely that these were the result of averaging the figures testified to by these witnesses. Therefore, the Court overruled Counsel for the State.”

By Landowner’s Attorney:

“In closing argument counsel for the landowner added in closing argument, he pointed out the almost exact similarity of figures before the taking and that the only question for the jury to decide was the fair market value of the land after the taking.”

There was not testimony to the effect, ñor was there any indication that the jury returned a quotient verdict. Therefore, we find no merit in appellant’s second point urged for reversal. See: Kennedy v. Griffin, 195 Ark. 379, 112 S. W. 2d 644.

SUBSTANTIAL EVIDENCE

This Court has repeatedly held that a jury verdict will he affirmed where there is any substantial evidence to support it. Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S. W. 2d 330. In the case of State Highway Commission v. Jelks, 203 Ark. 878, 150 S. W. 2d 465, the Court stated the rule as follows:

“. . . the rule is that where fair-minded men might differ honestly as to the conclusion to be drawn from the facts, either controverted or uncontroverted, the question should go to the jury, and it is the province of the jury to pass on the weight of the evidence and the credibility of the witnesses, and, even if it appears that the verdict is contrary to the preponderance of the testimony, this furnishes no ground for reversal. Citations. ’ ’

The question presented for our consideration by appellant’s third point urged for reversal is whether the evidence introduced by appellee falls within the above stated rule. Appellees’ evidence is summarized as follows:

Mr. John Q. Adams has been a real estate broker and appraiser for more than forty years, was familiar with the property, inspected it in October 1959 and found that the front door was brought within forty-three feet of the highway right of way. Mr. S. E. Kennedy, husband of appellee, negotiated for purchase of the property, was a licensed real estate broker for four to five years after 1940, was a nearby landowner, recounted the front door was forty feet from a red clay sand and rock bank, bas bought and sold land in Jackson County and adjoining counties and described in detail the numerous shade trees taken and destroyed. Mr. Claude Cole owned nearby land, was familiar with the property and had made a tentative agreement to pay $8,000 for the property before he learned the highway would take the front of the property, so gave up his plan to buy, and stated the value of the remainder was $4,000, after taking of the right of way. Mr. Guinn, in the real estate business knew the market value of such property and recalled the right of way was thirty-six feet at the closest point. He opined its value was $11,500 before the taking and $8,500 thereafter, damaging Mrs. Kennedy in the sum of $3,000. Mr. James Parish, a realtor for twelve to thirteen years, was familiar with real estate values in the area and the Kennedy property, having made a detailed appraisal in October 1959. He said the diminution in the market value was $3,150. Mr. A. F. Fraser, an officer of the nearby Citizens State Bank at Bradford, had appraised the property for loan purposes and had made a loan on the house. Further, he knew real estate values in the area and had himself built a similar house on the same highway at Bradford, only a few miles distant. He believed the before value was $9,000, and after value was $6,000 and appellee had lost $3,000.

All of these six witnesses for appellee properly testified as to the before and after value of the property and had especial reasons to be familiar with the amount for which such property would sell in the area. The four realtors had bought, sold and handled the sale of such real estate in Jackson County. Mr. Fraser was a banker making loans on such property, had built such a house and had bought and sold real estate in the area. Mr. Cole had bought and sold such real estate and had, in fact, traded for this property at $8,000 before learning the highway right of way would cross it. He related that the diminished value because of that fact was $4,000. All these witnesses were peculiarly well qualified to speak upon the one subject of the jury’s inquiry; that is, the price at which the remainder of the land would have sold in the Jackson County market. The jury’s answer of $2,500 was well within their testimony and substantially supported by it.

Affirmed.

Bohlinger, J., not participating.