author: Sam Robinson, Associate Justice.

text:
    Arco Auto Carriers, Inc. v. State.
    5-2253
    341 S. W. 2d 15
    Opinion delivered November 21, 1960.
    [Rehearing denied January 9, 1961.]

      George S. Dixon and Louis Tarlowski, for appellant.

      Bruce T. Bullion, Special Assistant to the Attorney General. Bruce Bennett, Attorney General, of counsel, for appellee.
   Sam Robinson, Associate Justice.

This action was brought by the State of Arkansas to enforce the collection of certain ad valorem taxes on trucks and equipment used by appellants in hauling for hire into and through the State of Arkansas in interstate commerce, automobiles and other merchandise. The issue is the validity of the tax. The chancellor held that the tax is valid, and the transportation companies have appealed. On motion of appellant Greyvan Lines, Inc., its appeal has been dismissed.

The tax is authorized by Ark. Stats. § 84-601. The property used in interstate commerce and in issue here is divided into two categories: The vehicles used in hauling merchandise into this State, and vehicles used in hauling merchandise through the State. Insofar as this case is concerned, there is no distinction. The vehicles used in both categories are engaged in interstate commerce. No provision of our Constitution is pointed out as prohibiting the act in question. But appellants vigorously argue that the statutes authorizing the tax, and also the action of the taxing officials of Arkansas in attempting to collect the tax, violate Article 1, § 8, the commerce clause of the United States Constitution, and the 14th Amendment.

Conceding that the owners of the equipment involved in this case could not be compelled to pay an excise or privilege tax (State v. American Refrigerator Transit Co., 151 Ark. 581, 237 S. W. 78), the fact remains that only an ad valorem tax is involved here, and the tax is on property that may be found in this State. It is immaterial that such property may not be moved on any regular route or schedule. Conceivably millions of dollars’ worth of transportation equipment belonging to appellants could be in the State at all times, with the owners thereof being afforded the benefits and protection of a duly constituted, organized and functioning state government. And, moreover, the fact that no particular piece or pieces of such equipment would be here for any designated time should not relieve the owners thereof from bearing their fair share of maintaining and operating a state government, with all its ramifications, that serves all the people, including the owners of the transportation equipment found in the State, regardless of where such owners may be domiciled.

Of course, in the circumstances of the property not being in the State 100% of the time and subject to an ad valorem tax in other states, this State can only levy a tax based on a formula “which fairly apportions the tax to the commerce carried on within the state.” Standard Oil Co. v. Peck, 342 U. S. 382, 72 S. Ct. 309, 96 L. Ed. 427. In the case at bar it appears that such a formula was used, but if the formula is not fair, appellants have an administrative remedy. Ark. Stats. § 84-609 — 84-612, § 84-115. Here, however, they did not pursue the administrative remedy to a final conclusion.

This case is controlled by three cases heretofore decided by the United States Supreme Court. First is the case of Pullman’s Car Co. v. Pennsylvania, 141 U. S. 18, 11 S. Ct. 876, 35 L. Ed. 613. There the Court said: “For the purposes of taxation, as has been repeatedly affirmed by this court, personal property may be separated from its owner; and he may be taxed, on its account, at the place where it is, although not the place of his own domicil, and even if he is not a citizen or a resident of the State which imposes the tax. ... It is equally well settled that there is nothing in the Constitution or laws of the United States which prevents a State from taxing personal property, employed in interstate or foreign commerce, like other personal property within its jurisdiction. [Citing cases] ”

Next is Ott v. Mississippi Barge Line, 336 U. S. 169, 69 S. Ct. 432, 93 L. Ed. 585. In that case it was held that the doctrine of the Pullman case is applicable to barges and towboats, moving freight in interstate commerce np and down the Mississippi River. Ad valorem taxes levied on such transportation equipment by Louisiana and the City of New Orleans were upheld.

The third case is Braniff Airways v. Nebraska Board, 347 U. S. 590, 74 S. Ct. 757, 98 L. Ed. 967. The issue was the authority of Nebraska to levy an ad valorem tax on aircraft, the owners of which were domiciled in other states, such aircraft being found in Nebraska but used in interstate commerce. The Supreme Court upheld the right of the State to collect a tax properly apportioned on the basis of the use of the aircraft in Nebraska compared to the over-all use of such equipment.

As shown by the above mentioned cases, the United States Supreme Court has upheld an ad valorem tax when fairly apportioned on railway, barge line and aircraft equipment used in interstate commerce. There is no sound reason why such a tax is not equally valid when applied to vehicles used on the the roads of the State. The State of Arkansas did not levy the tax on the full value of the equipment; a mileage formula was used. This formula determines the percentage of the total time the property may be found within this State and the percentage of time the assets of the appellants are employed here for purposes of ad valorem taxes. Appellants also attack here the formula used, but they did not exhaust their administrative remedy on such question.

Appellants contend also that Article 2, Sec. 23, of the Constitution of Arkansas prohibits quasi judicial commissions from making assessments for ad valorem tax purposes. In McDaniel v. Texarkana C. & M. Co., 94 Ark. 235, 126 S. W. 727, the Court said: “The Legislature has the power to make all property in this State subject to taxation, except property exempted by the Constitution. It has the power to provide where and in what manner said taxes shall be levied and collected; and it may classify corporations and corporate interests for the purpose of taxation, and specify the mode of the assessment, levy and collection of taxes on corporate properties and interests.” But appellants contend that Amendment No. 47 to the Constitution of this State prohibits the levy of an ad valorem tax by the State. Here the State has levied no ad valorem tax. An agency of the State has merely ascertained the value of the property. True, under the provisions of Act 168 of 1953 (Ark. Stats. 84-614) the Commissioner of Revenues collects the tax, but the same act provides that the State Treasurer shall pay the amounts so collected to the County Aid Fund and in turn shall distribute same to the various counties on a proportionate basis as set out therein (Ark. Stats. 84-615). It can readily be seen that this is a county tax merely administered by a State agency for the purpose of efficiency, and therefore is not in violation of Amendment 47.

Affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice. Jim Johnson, Associate Justice,

license: Public Domain

text:
    Reynolds v. Holmes.
    5-2157
    340 S. W. 2d 383
    Opinion delivered November 28, 1960.

      Ras Priest, for appellant.

      Fred M. Pickens, Jr. and Wayne Boyce, for appellee.
   Carleton Harris, Chief Justice.

Appellant instituted suit against appellee for libel, slander, and malicious prosecution, resulting from a charge brought by appellee against appellant of petit larceny. The jury found for appellee, and judgment was entered dismissing the complaint. From such judgment, comes this appeal.

The evidence reflects that on the morning of Saturday, October 13, 1956, appellant, with her two daughters, Nadie, age 12, and Glenda, age 6, entered the Ben Franklin Store, a self-service store, located at Newport, owned and operated by appellee, and made some purchases. Four purchases were made, including a green coat sweater for the older girl, taken to the cashier’s stand, and paid for. As appellant and her daughters were leaving the store, appellee, Douglas Holmes, requested that they come to the back, where he interrogated them about a red sweater being worn by the younger daughter. Mrs. Reynolds claimed she purchased the red sweater at the store on the preceding Monday, October 8th. Employees of the store were summoned, and two, Mrs. Nettie Davidson and Jerry Lynn Bradley, stated that they had seen appellant, while standing at the sweater counter, button the red sweater on the little girl. Both witnesses stated that neither of the children was wearing, or carrying, wraps of any kind when they first observed them in the store. Martha Spears, an employee, stated that she was the cashier, and remembered a sale of a sweater to Mrs. Reynolds on Monday, but did not remember the col- or of the sweater. Appellant then left the store, returning with her husband, Lawrence Reynolds, and after some conversation with Holmes, the Reynolds went to the office of the sheriff for the purpose of instituting prosecution. The sheriff’s office was also occupied by the police department of the City of Newport. J. R. Taylor, chief of police, heard their story, and placed a telephone call to Holmes, who came to the office. After discussing the matter, an affidavit for a warrant of arrest, charging appellant with petit larceny was prepared, and was signed by appellee. Taylor kept the written charge until Monday or Tuesday, at which time he delivered it to the municipal clerk of the City of Newport. Following the signing of the affidavit, Taylor, together with a deputy sheriff, drove appellant and her family to their home. The officer testified that appellant told him she had the tag that came off the red sweater which had been purchased on Monday, but when the tag was not produced, he returned to town. Appellant was instructed to appear in municipal court in the City of Newport on Tuesday, October 16th, but the case was not tried until December 7,1956, at which time Mrs. Reynolds was acquitted of the charge. Three weeks later, complaint was filed against appellee seeking $10,000 actual damages for libel and slander, $10,000 actual damages for malicious prosecution, and punitive damages in the sum of $5,000, or a total amount of $25,-000. The case was tried on December 4, 1957, and resulted in a hung jury. The second trial was held on July 11, 1959, and resulted in a verdict for appellee. Numerous alleged errors are urged by appellant, and we proceed to a discussion of these points.

Appellant first asserts that the verdict of the jury amounted to a finding that appellant stole the sweater in question, and there is no substantial evidence to support such a finding. Under the court’s instructions, it would appear that the jury may have taken such a view. Of course, we have no way of knowing the factual basis upon which the jury reached its conclusions. The fact that she had been acquitted of the charge in criminal court, did not necessarily preclude the civil jury from reaching an opposite conclusion. It must likewise be remembered that a criminal conviction requires proof of guilt beyond a reasonable doubt, while an action for damages only requires a preponderance of the evidence; here, on appeal, we are only concerned with whether there was substantial evidence to support the verdict. Proof offered by appellee included the testimony of the two ladies, heretofore mentioned, that they had observed Mrs. Beynolds buttoning the red sweater on the little girl; that she was in the store for an hour and a half to two hours; that the little girls were neither wearing sweaters, nor carrying sweaters, when first observed in the store, and a price tag was found by one of the employees on the floor near the sweater counter. Admittedly, the red sweater was not paid for on October 13th. Holmes also testified that he watched the mother and two daughters in the store for approximately thirty minutes, and neither of the children had any kind of wrap. Appellant denied taking the sweater, and testified that the red sweater had been purchased on the previous Monday; however, another employee of the store (Mrs. Warren) testified that the sweater purchased at that time was blue. The price tag found was for a size 8 sweater, and the record reflects that, following the filing of the charge of petit larceny against Mrs. Beynolds, a friend of appellant, Sarah Miller, purchased a size 8 sweater from the Ben Franklin Store, for the purpose of showing that that size sweater was too large for the child to wear. Mrs. Miller testified that the size 8 sweater purchased ‘ ‘ * * * come way down on her ”. The witness also testified that she had observed Glenda wearing a red sweater on Tuesday before the alleged theft on Saturday. Lawrence Beynolds, husband of appellant, Billy Beynolds, son of appellant, and Nadie Beynolds, daughter, also testified that the red sweater was purchased on the Monday prior to the accusation, and had been worn for several days during the week. Appellant points out that certain evidence offered by appellee was contradictory — but the jury heard each witness, and was in a position to evaluate the testimony; also, appellant urges that no asportation was proved, i.e., no one actually saw Mrs. Reynolds take the sweater from the counter. No citation of authority is required to the effect that circumstantial evidence is entirely competent and affords a valid basis upon which to render a verdict. As this Court has many times. stated, it is within the province of the jury to believe or disbelieve witnesses, and weigh the facts and circumstances. Though appellant’s evidence, if accepted by the jury, would likely have supported a verdict, we are likewise of the opinion that appellee offered evidence of a substantial nature upon which the jury could properly base its verdict.

Error is claimed because of the refusal of the court to permit appellant to testify on direct examination about a question asked Holmes at the criminal trial by the presiding judge, Vernon Ridley, and to relate the answer given by appellee. Appellant states that this evidence was competent to show Holmes was guilty of express malice in the prosecution, and that he attempted to obtain a conviction by giving false testimony. Upon refusal of the court to permit the evidence, counsel for appellant stated:

“Note our exceptions, and the witness, if permitted to answer would have stated that at the conclusion of the argument Judge Ridley hesitated, then said, ‘I know this is unusual, but I want to ask Mr. Holmes a question and I am going to ask it; Mr. Holmes, did you see Mrs. Reynolds and the two little girls enter the store?’ His answer was, ‘No, sir, I did not know about it until it was reported to me.’"

In the first place, we do not see how the refusal to admit this evidence was prejudicial to the cause of appellant. Mrs. Reynolds had just testified that Mr. Holmes stated in the criminal trial that he saw her and the children when they first came in, and they were not wearing wraps. According to appellant’s brief, in the previous civil trial, Mr. Holmes had stated, in effect, that he did not see the family when they first came in, and this evidence was evidently desired by appellant in contemplation that appellee would testify in a like manner. In fact, when Holmes subsequently took the stand, he did state that he did not recall when he first saw the family. Appellant contends that the desired evidence “* * * went to the very heart of the principal issue: Who was lying? Who started off lying? Can there be absence of express malice when the prosecution attempts to obtain conviction by false testimony?” As stated, the jury heard Mrs. Reynolds relate the version given by Holmes at the criminal trial. Subsequently, in the case now before us, Holmes testified that he did not know when he first observed appellant and her daughters. Accordingly, before submission, the jury was well aware of the fact that Holmes had, according to appellant, made contradictory statements. Therefore, if the testimony was relevant, Mrs. Reynolds was not prejudiced, for the damaging part of Holmes ’ alleged evidence before the municipal court was admitted, and the alleged conflict in his testimony was brought to the attention of the jury. It would seem that the only fact that could have been shown by this evidence was that Holmes gave two versions in the criminal trial, which was entirely collateral to the matter at hand. At any rate, we do not consider the evidence relating to whether Holmes observed appellant coming into the store as being material. Coming into the store did not directly relate to the stealing, nor did it tend to show lack of probable cause, since the charge against her was based, not upon her coming into the store, but upon observation of her actions after she arrived; malice is not shown by proving inconsistent statements regarding immaterial matters. We find no merit in this contention.

It is next contended that the court erred in permitting witnesses to testify, over objections of appellant, that they had suspected appellant of shoplifting. There are divergent views as to whether testimony, wherein witnesses state inferences or opinions, formed as a result of their observations, is admissible. Here, there is no necessity for discussion of this question, for this point can be disposed of without such a determination. Jerry Lynn Bradley testified that appellant was in the store for close to two hours, and that she watched her. When interrogated as to why she watched her, she replied:

“A. Because we had suspicioned her before. She was looking around, and when you ask a customer, and they are looking, and that was such a period of time, that gives you, as a sales clerk, room for suspicion.
Q. How long did you watch her, Jerry Lynn?”

At this point, counsel for appellant objected, stating that “suspicion is a conclusion drawn by the witnesses and not based upon any facts that are in evidence. We think it is prejudicial, immaterial, and it is inadmissible. ’ ’ The court overruled the objection. Subsequently, Mrs. Dorothy Warren was asked why she noticed appellant, and the witness likewise replied, “Because we had suspected her of shoplifting, and we had been watching her. ” The witness further testified with reference to two dresses, which had been tried on by the daughters of Mrs. Reynolds on a previous date when appellant was present, and which, according to her testimony, subsequently “disappeared”. This testimony was objected to, and the objection at first overruled. Within a few minutes, however, the court ordered all the testimony about the dresses stricken from the record, told the jury that such evidence was being withdrawn from its consideration, and instructed the jury specifically to not consider the testimony in any manner. “You must treat it as though this testimony had never been introduced during this trial.” Shortly thereafter, after proceedings in chambers, and at the request of appellant, the court instructed the jury to disregard the answer of the witness, “* * * because we suspected her of shoplifting, and we had been watching her.” The court further stated: “You are instructed you are to disregard that testimony and give it no consideration; that you are to treat it as though you never heard it because it, too, is being stricken from the record and you are specifically and cautiously instructed to use care and caution and to wipe it completely out of your mind.” It does not appear from the record that the court specifically told the jury to disregard the similar statement made by the first witness, Jerry Lynn Bradley, though there is an inference during the examination of Holmes that all of this testimony had been excluded. Holmes, the last witness on behalf of appellee, was asked:

‘ ‘ Q. What was the first thing that called her to your attention?
A. Well, it has been brought out in testimony we had suspected her before.
BY MR. ERWIN:
If Your Honor please, it is not brought out in testimony; it was excluded from the consideration of the jury.
BY THE COURT:
Sustained.”

At any rate, it was apparent that the court had changed its mind since first admitting this evidence, and if appellant desired that the specific statement of Miss Bradley be stricken, she should have made such a request to the court. However, appellant’s principal argument on this point is not directed to the fact that the Bradley testimony was not specifically excluded, but rather to the fact that the court’s admonition to disregard the testimony “ * * * . did not remove and could not remove prejudice created in the minds of the jury.” This contention relates principally to the testimony of Mrs. Warren. In Horton, Guardian v. Smith, 219 Ark. 918, 245 S. W. 2d 386, a witness was asked whether' one Charles Sherman “* * * is a careful or reckless driver? A. I know that he is a reckless driver.” On appeal, this Court said:

“The first assignment in the motion for new trial is that the court erred in permitting appellee to answer the question, in refusing to exclude the answer, and in failing to instruct the jury not to consider it. The record reflects an objection by appellant after the question was answered. In sustaining appellant’s objection, the trial court said: ‘Yes, gentlemen, that is incompetent, and you will not consider the last answer of the witness. It is taken from you. ’ There was no further objection nor was a mistrial requested. In these circumstances, any prejudice arising from the excluded testimony was removed by the action of the trial court.”

Here, the court went even further, and made a rather lengthy statement admonishing the jury that the evidence should not be considered. If it were felt that the court’s statement to the jury would not remove any possible prejudice, a motion for mistrial should have been made in the first instance. This was not done.

Holmes testified, from his own knowledge, that his annual average loss from shoplifting was $2,000. This evidence was based upon records in appellee’s possession. Appellant states that this evidence was immaterial and irrelevant, but highly prejudicial. We think the evidence was competent to show appellee’s state of mind, and probable cause for instituting the criminal action, as well as tending to show a lack of malice. Of course, one who had suffered losses from theft would be much more concerned than one who had not. As stated in Richter v. Neilson, 11 Cal. App. 2d 503, 54 Pac. 2d 54:

“As the authorities point out, malice being the main indispensable element of an action of this kind, not only is a plaintiff given a very wide range in proving facts and circumstances tending to establish such element, but likewise the defendant is given the same full opportunity to disprove it. 16 Cal. Jur. 748. As said in Griswold v. Griswold, supra, and again in Burke v. Watts, 188 Cal. 118, 204 P. 578, whatever tends to prove good faith tends to disprove malice and must be admitted. ’ ’

Nor are we able to see where this testimony was prejudicial, since there was no evidence submitted to the jury to connect appellant with the $2,000 loss.

Appellant complains that the size 8 pin tag found on the floor near the sweater counter was never offered in evidence, and she calls attention to the fact that though Martha Spears and Gene Warren testified about the finding of the tag, neither Jerry Lynn Bradley nor Holmes were asked any questions with reference to it. Of course, there was nothing to prevent appellant from interrogating Miss Bradley, Holmes, or any other witness at length with reference to the tag, or why it was not introduced. In addition, no objection was made to the evidence of witnesses Spears and Warren concerning the tag.

Appellant alleges error in the refusal of the court to permit the clerk to read to the jury the pre-trial order made by the court following a pre-trial conference on November 29, 1957. This request was based on the fact that the original answer of appellee stated that the prosecution was instituted in good faith upon the advice of the deputy prosecuting attorney of Jackson County; at the pre-trial conference appellee obtained leave to amend his answer so as to allege that he consulted Taylor, the chief of police, and had acted upon the advice of Taylor in commencing the prosecution. Appellant desired to introduce the order as indicating “ever-shifting” defenses of Holmes. The statute relating to pre-trial conferences (Ark. Stats., § 27-2402, 1959 Supp.) provides:

“Actions taken at the conference, amendments allowed to the pleadings, rulings of the court, stipulations to be considered in evidence, and, agreements made by the parties on any of the matters considered, will be made a part of the record in the case. ’ ’

Though the pre-trial order is a part of the record, we think this point is immaterial. The original answer was read to the jury. While the testimony of Holmes reflected that some discussion was held with the chief of police, no mention was ever made by appellee that he consulted the deputy prosecuting attorney. Appellee also admitted on cross-examination that at the previous trial, he had testified' the charge had been filed at the suggestion of Taylor. Accordingly, this conflict was called to the attention of the jury, and no prejudice could have resulted from the court’s ruling.

Appellant complains about the giving of the court’s instruction No. 6 and the failure to give appellant’s requested instruction No. 20. As to the first, there was no objection to the instruction; as to the second, the contents of the requested instruction were covered by other instructions given.

Finally, it is urged that the court erred in not excusing venireman David Paul Burton for cause. Burton stated on voir dire that he had heard about the occurrence at the Ben Franklin Store through relatives of appellee, and had formed an opinion; the relatives were not witnesses. However, he said that he had no bias, and in response to interrogation by the court, stated that he could go into the jury box, lay aside any opinion, and base his decision solely on the evidence introduced during the trial, and the law as given by the court. We have several times held that the facts relied upon by appellant are not sufficient grounds for challenge. See St. Louis 1. M. & S. Ry. Co. v. Stamps, 84 Ark. 241, 104 S. W. 1114, Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887.

Finding no reversible error, the judgment is affirmed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. This is an appeal from a judgment in favor of appellee, Douglas P. Holmes, based upon a verdict of a jury, in an action brought by appellant, Inez Reynolds, for libel, slander, and malicious prosecution.

On the morning of Saturday, October 13,1956, appellant, Inez Reynolds, with her two daughters, Nadie, age 12, and Glenda, age 6, entered the Ben Franklin Store, a self-service store, at Newport, which was owned and operated by appellee, Douglas P. Holmes, to make some purchases. She and the children selected four purchases, including a green coat sweater for the older child, carried them in a basket to the cashier’s stand, paid for them, and were leaving the store when she was stopped by appellee, conducted to a room at the rear of the store, and accused by him of having stolen a red sweater then worn by her youngest daughter, Glenda. She protested that she had bought the red sweater in question at the store the preceding Monday, October 8. Appellee summoned three employees, Henry Burge, Mrs. Nettie Davidson, and Jerry Lynn Bradley, who told him in appellant’s presence that they had seen her put the red sweater on the smaller girl. She repeated that she had bought the sweater on the preceding Monday and requested that he summon the cashier as a witness. The cashier, Martha Spears, was summoned by the appellee, and questioned. Appellant was then dismissed. She left the store and returned with her husband, Lawrence Reynolds, in 15 or 20 minutes. Mr. Reynolds confronted appellee and demanded to know whether the red sweater worn by the little girl was the sweater his wife was accused of stealing. Appellee responded in the affirmative.

Appellant and her husband went immediately to the office of the sheriff for the purpose of attempting to prosecute appellee. The sheriff’s office was then occupied by the police department of the City of Newport. A radio operator and a deputy sheriff, John Mitchell, were present and appellant and her husband were directed to wait for the return of the Chief of Police. When Chief of Police, J. R. Taylor came in, he heard their story, took the paper bag containing their purchases, took them into the sheriff’s private office and placed a telephone call to Mr. Holmes who came to the office. After a discussion of the matter, Mr. Holmes and Chief Taylor went out into the main office, filled out a blank form affidavit for a warrant of arrest charging appellant with petit larceny. This charge was signed by appellee at the time and delivered to the Chief of Police. Chief Taylor kept the written charge until Monday or Tuesday following at which time he delivered it to Vaughan Jackson, the Clerk of the Municipal Court of the City of Newport. On Tuesday morning, October 16, 1956, the clerk presented the signed form to appellee at his office for verification.

After appellee signed the form in the sheriff’s office, Chief Taylor and John Mitchell, the deputy sheriff, drove appellant and her family home to Jacksonport. By invitation the two officers inspected the clothing of the children in their home.

After having inspected the clothing of appellant’s children on the Saturday afternoon in question, Chief Taylor instructed appellant to appear in the Municipal Court in the City of Newport at 1:30 p.m., on Tuesday, October 16, 1956. Appellant appeared as instructed with her witnesses and her attorney for trial. She was not tried until December 7, 1956, at which time she was acquitted of the charge against her.

On December 28, 1956, twenty-one days after her acquittal, appellant filed her complaint against appellee for slander, for libel, and for malicious prosecution. The case was tried December 4, 1957, and resulted in a hung jury. The case was retried on July 11, 1959, and the jury returned a verdict for the defendant. Judgment was rendered accordingly; notice of appeal was given in apt time; and the case is now before this Court.

For reversal, appellant relies upon a number of points. No useful purpose would be served by discussing any except the following on which my dissent is based.

Appellant contends that the court erred in refusing to permit appellant, Inez Reynolds, to testify that at her trial in Municipal Court, Judge Ridley, after hearing the evidence and the argument of counsel for the prosecution (her attorney made no argument), asked appellee Holmes a question, what the question was, and what his answer was.

The following appears in the record relative to appellant’s testimony in her case in chief:

“Douglas testified against me. He said he saw me when we first came in and we didn’t have no wraps on, and I had a shopping bag. I said none of us did. I had on a blue short coat. My youngest daughter had on the red sweater. Nady didn’t have on a sweater because she didn’t have no sweater.
“He testified that when he called Martha Spears back there, she admitted selling me a sweater, but said it was a blue one.
“Jerry Lynn Bradley testified that Martha said she sold me a sweater, but it was a blue one. She said she saw us when we came in and my girls didn’t have on anything; no wraps. Mrs. Davidson testified. She said she saw us come in and we didn’t have on any wraps. She also said that Martha said she sold me a sweater but she said it was a blue one. ’ ’
“Q. Did the court ask Douglas Holmes a question after the argument?
“A. Yes, sir.
“Q. What was the question?
“By Mr. Pickens: Object for the reason that whatever the Court might have said to Douglas Holmes at the time is not proper in this lawsuit. We are getting three different litigations mixed up as a result of Mr. Priest’s question and it is irrelevant.
“By the Court: What was the question?
“By Mr. Priest: I asked her what question Judge Ridley asked Douglas Holmes and what his answer was.
“By the Court: Objection sustained, go ahead.
“By Mr. Priest: Note our exceptions; and the witness, if permitted to answer would have stated that at the conclusion of the argument Judge Ridley hesitated, then said, ‘I know this is unusual but I want to ask Mr. Holmes a question and I am going to ask it; Mr. Holmes, did you see Mrs. Reynolds and the two little girls enter the store?” His answer was: ‘No, sir, I did not know about it until it was reported to me’.”

In the case at bar appellee testified concerning the subject matter contained in appellant’s testimony, as set out above, as follows:

“Q. Why did you send after Miss Jerry Bradley?
“A. I wanted to confirm what I had seen myself.
“Q. When you first saw them, did either of the children have any kind of wrap on?
“A. Neither one.
“Q. I believe you testified it was approximately 30 minutes you watched them?
“A. That’s right.
‘ ‘ Q. When Jerry Lynn came back, what took place ?
“A. I asked her if the little girl had a sweater on when they came in and she said, ‘No, neither one had anything on’.”

Appellant argues that the excluded testimony was offered for two purposes:

“A. To show that Douglas Holmes acted with express malice in instituting the criminal prosecution against appellant on a charge of petit larceny by showing that he tried to bring about her conviction by giving against her, and by causing his employees to give against her, testimony which he admitted to be false.
“B. To show that the testimony which she knew, from having heard it at a previous trial, would be given by appellee and his employees, Jerry Lynn Bradley and Mrs. Nettie Davidson, was fabricated and false, and was merely a substitute for tbeir original testimony in the Municipal Court, which Mr. Holmes had admitted to Judge Ridley was false.”

The question here presented is whether appellant should have been permitted to testify in her malicious prosecution action as to what was said by appellee in the criminal case before the Municipal Court. The issue involved in the exclusion of the testimony referred to is whether or not Mr. Holmes’ prosecution in the criminal case was in good or bad faith, i.e., whether or not he had probable cause to commence the action. In discussing this identical question, this Court in Kansas & Texas Coal Company v. Galloway, 71 Ark. 351, 74 S. W. 521, after discussing the general rule of admissibility, had this to say:

“. . . malicious prosecutions forms an exception to the rule. . . .
“. . . Probable cause is such a state of facts in the minds of the prosecutor as would lead a man of ordinary caution and prudence to believe, or entertain an honest and strong suspicion, that the person arrested is guilty. The facts testified to on the examination may have been very influential in raising such suspicion or belief, and are therefore competent evidence to show the ground he had of cause to believe, whether they were true or not. They are therefore facts material to the issue, to be proved by any witnesses who can testify to them, as well as by those who testified at the examination. These witnesses may be dead, absent or insane; they may have forgotten them, or refuse to testify to them, or even deny them; it is not the less true that they did so testify, and if the testimony was of a character to evidence a belief or strong suspicion, in the mind of a reasonable man, of the guilt of the accused of the crime charged, they had a direct bearing on the issue of probable cause or not, in the action for malicious prosecution. . . .” Prom what has been said above, I cannot escape the conclusion that the trial court erred in excluding the questioned testimony. See Hall v. Adams, 128 Ark. 116, 193 S. W. 520.
I now reach the question, was such error in this case reversible? Appellee argues that: “Appellant has no grounds for complaint. For in fact, the jury was permitted to hear this testimony in the testimony of Lawrence Reynolds. Reynolds testified in almost exactly the words of the offer of proof made at the time that the testimony was excluded when Inez Reynolds was on the stand. The appellee feels that it is at least highly questionable that the question of an examining magistrate was admissible the first time, but certainly by no stretch of the imagination can the appellant contend that she was prejudiced because she was not permitted to put the same testimony into the record twice. To have permitted both Inez Reynolds and Lawrence Reynolds to have testified to the same identical question and answer would simply be repetitive and cumulative and would serve no useful purpose. ’ ’

The general rule is that prejudice is presumed from the exclusion of competent and material evidence; 3 Am. Jur. § 940, p. 504. In the same volume on the same subject, at page 589, § 1032, we find:

“The general principle has been laid down that where the facts of the case are such that the appellate court cannot say that if the evidence erroneously excluded had been admitted, the jury would have returned the same verdict, the exclusion of such evidence will be held to be reversible error. If the erroneous exclusion injuriously affects a substantial right, then there is reversible error. It is generally held to affect a substantial right if it relates to a material point. ’ ’

To the contention of appellee that the error was cured by the testimony of Lawrence Reynolds, to the same effect we find in the case of McDonough v. Williams, 86 Ark. 600, 112 S. W. 164, the following:

“While there was evidence to the same effect admitted, the jury did not accept it. We cannot say that this evidence was cumulative. The witnesses were not sufficiently numerous for that, and, if the jury had been given the opportunity to consider the testimony of Spradlin, they might have given it more weight than the other testimony that was adduced to the same effect.”

The testimony which was excluded was an admission against interest because when Holmes admitted in Municipal Court that he didn’t see them enter the store, after having previously testified that he did see them enter the store, it was more than impeachment because in showing that he swore falsely in Municipal Court indicates that he maliciously instituted the prosecution in that court. Whether he saw them enter the store was material because that was one factor in determining his good faith in starting a prosecution on something someone else told him rather than on personal knowledge. See: Thiel v. Dove, 229 Ark. 601, 317 S. W. 2d 121; Hall v. Adams, supra; and Kansas, Texas Coal Co. v. Galloway, supra.

Following the rule set out above, it is my conclusion that the error as indicated is reversible and for this reason I respectfully dissent to the majority opinion.

         Lawrence Reynolds, husband of appellant, testified that this question was asked by the Judge, and the answer given by Holmes. The parties stipulated that Judge Vernon Ridley, if present, would testify that he did not recall the details of the testimonv-

       For instance, in Corpus Juris Secundum, Vol. 32, § 459, p. 101, we find: “The modern tendency is to regard it as more important to get to the truth of the matter than to quibble over distinctions which are in many cases impracticable, and a witness is permitted to state a fact known to or observed by him, even though his statement involves a certain element of inference.”

       Emphasis supplied.


author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice, Paul Ward, Associate Justice,

text:
    Fair v. Fair.
    5-2191
    341 S. W. 2d 22
    Opinion delivered November 28, 1960.
    [Rehearing denied January 9, 1961.]

      Edward J. Rubens and Davis S Davis, Memphis, Tenn.; for appellant.

      Arthur L. Smith, Jr. and Samuel J. Weintraub, Memphis, Tenn.; for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action in which appellee, Nancy Fair, seeks to set aside a divorce decree on the ground of fraud in the procurement of said divorce. The record reflects that Mark L. Fair (deceased) and Nancy Fair (appellee) were married in 1938 and separated in March 1944. The last time that Mr. and Mrs. Fair communicated directly with each other was sometime around Easter 1946. During August, 1950, Mr. Fair filed suit in Crittenden County, Arkansas, for divorce alleging that he and his wife had lived apart three years without cohabitation and prayed that he be granted a divorce. On October 16,1950 he was granted a decree of divorce from Mrs. Nancy Fair. On June 19, 1958 Mr. Fair died and Mrs. Fair, appellee, was notified of his death on June 21, 1958. Shortly thereafter, while checking on a burial policy of Mr. Fair’s and in talking to the manager of the Thompson Brothers Funeral Home, it appears that Mrs. Fair was first apprised of the fact that her husband had procured a divorce. This was confirmed on August 8,1958 when a certified copy of the divorce decree was procured from the court records of Crittenden County, Arkansas. Mrs. Fair filed the present suit to set aside the above decree of divorce primarily on the ground that fraud was used in the procurement of it and that she was never notified of the filing or pending of said divorce suit. On a trial the lower court, after hearing all the testimony, set aside the divorce decree and the administrator of Mr. Fair’s estate, Norman Brooks Fair, has appealed relying on the following points for reversal: (1) Fraud was not proved, (2) Mrs. Fair is guilty of laches, and (3) the trial court was without jurisdiction to hear the case. We have reached the conclusion that the decree should be affirmed on the ground that appellee’s proof shows that the decree of divorce in favor of Mr. Fair was fraudulently procured during Ms lifetime.

I

The appellee, in charging Fair with fraud in the procurement of the divorce, asserts that he supplied his attorney and the attorney ad litem with an improper address as the place of Mrs. Fair’s residence, with the result that she.received no notice whatever of the pendency of the divorce proceeding. This charge, if supported by the weight of the evidence, constitutes such a fraud as to justify the court in setting aside the decree. Murphy v. Murphy, 200 Ark. 458, 140 S. W. 2d 416; Lewis v. Lewis, 214 Ark. 454, 217 S. W. 2d 346. In the Murphy case, upon essentially similar facts, we said: “Another fraud more subtle and, therefore, more egregious was his action in giving an improper address as the place of his wife’s residence. This prevented her from knowing that she had been sued until after she had been divorced. Such frauds will not be tolerated. ’ ’

Fair, in filing suit for divorce in Crittenden County, gave two possible addresses for his wife, both of wMch were insufficient and resulted in the letters of the attorney ad litem being returned to him by the postal authorities. The first address given was 171 Merton Street, 'Memphis, Tennessee. The proof shows that Mrs. Fair had never lived at this address. Mr. Fair, however, was familiar with the property, as he had formerly owned it. At the time of the divorce case a Mr. and Mrs. Richter were living at 171 Merton Street. Mrs. Richter was a sister of Fair’s daughter-in-law, and Mr. Richter was one of the two corroborating witnesses who testified for Fair in the divorce ease. In the present proceeding Richter testified that in 1950 he knew that Fair was getting a divorce and that when the letter for Mrs. Fair arrived he turned it back and “just put on there she didn’t live there.” Thus there are strong reasons for concluding that Fair well knew that a letter sent to 171 Merton Street would never reach his wife.

The second address given was General Delivery, Vicksburg, Mississippi. Mrs. Fair had lived in Vicksburg as a girl and in 1950 still had a post-office box there, in her maiden name, which was used by her mother and other members of her family. Fair had often visited in the family home and undoubtedly knew the address of his mother-in-law there. That the address given was insufficient is of course established by the fact that the letter was returned. Just as in the Lewis case, supra, the fact that Fair made no effort to reach his wife through her mother strongly indicates a lack of good faith on his part. There is also the additional fact that Mrs. Fair was working in a bowling alley in Memphis, just across the river from Crittenden County, that Fair had visited her at the bowling alley on two or more occasions, and that he could easily have used that address to notify her of the divorce case. Hence the weight of the evidence shows clearly, indeed almost conclusively, that Fair practiced a fraud in obtaining the divorce decree.

II

We cannot agree with the contention that the appellee was guilty of laches in not filing the present complaint until April, 1959. Fair’s fraudulent conduct prevented her from knowing about the divorce case when she was sued, and she did not learn of the decree until after Fair’s death in June, 1958. There was no lack of diligence on her part, nor was the appellant adversely affected by the delay of a few months between the appellee’s discovery of the divorce decree and the institution of this proceeding to set it aside.

The appellant also argues that the complaint to set aside the decree is defective in failing to allege a meritorious defense to the original action. Ark. Stats., Anno. (1947) § 29-508; Wims v. Wims, 214 Ark. 811, 218 S. W. 2d 85. This contention we hold to be without merit. Fair obtained the divorce on the ground of three years separation, and it was impossible for the appellee to assert a meritorious defense to the cause of action for divorce, as she admits the fact of three years separation. Hence, under the statute, Fair had a right to a divorce. Ark. Stats., Anno. (1947) § 34-1202. But the statute says that the question of who is the injured party shall be considered in the settlement of property rights and alimony. Upon that point the appellee’s complaint does assert a meritorious defense, by alleging that the parties lived together until December 6, 1945, “when the said Mark Lee Fair deserted her (the appellee).” The complaint therefore asserts the only defense that could be asserted — that the appellee was the injured party.

Ill

The appellant’s third contention, that the court was without jurisdiction, is based upon the argument that nothing would be accomplished by setting aside the divorce decree now that Fair is dead, since his death freed the appellee from the bonds of marriage. But, as stated in the headnote to Jackson v. Bowman, 226 Ark. 753, 294 S. W. 2d 344: “Chancery courts have the power to set aside a default decree of divorce, even after the death of one of the parties, if property interests of the survivor are affected.” In this case it appears that Fair left a substantial estate, situated in Florida, and the vacation of the Arkansas divorce decree is evidently a necessary step to enable the appellee to assert her rights as Fair’s widow.

Finding no error, the decree is affirmed.

McFaddin, Ward, and Johnson, JJ., dissent.

Ed. F. McFaddin, Associate Justice,

dissenting.

The majority opinion in this case is most unfortunate because it sets aside a divorce decree granted by a Court of competent jurisdiction and which has been of record for ten years; and all this in spite of the fact that the movant has made no showing of a meritorious defense to the divorce action.

Mr. Fair obtained a divorce decree in Crittenden County on October 16, 1950. Mrs. Fair filed the present proceeding on April 9, 1959 to set aside the 1950 divorce decree. She made two claims: (a) Mr. Fair was not a bona fide resident of Crittenden County when he obtained the divorce decree; and (b) Mr. Fair fraudulently concealed from her the pendency of the divorce proceedings by failing to give her best known address to the Court’s attorney ad litem.

Now let us take up these two attacks made by Mrs. Fair on the 1950 divorce decree.

A. Mr. Fair’s Residence. The Trial Court in the present case found that the 1950 Chancery Court was without jurisdiction because Mr. Fair was not a bona fide resident of Crittenden County in 1950. In my opinion, the Trial Court in the present case was in error in so holding; and the majority of this Court does not rest the affirmance on that finding. The depositions in the 1950 divorce case are in the record before us; and these depositions disclose the following questions were asked Mr. Fair when his deposition was taken on the 13th of October, 1950:

“Q. Please state your name, age, and place of residence.
A. Mark A. Fair, lawful age, West Memphis, Ark.
Q. How long have you lived in West Memphis ?
A. Since June 19,1950. . .
Q. At the time you commenced your residence in West Memphis, was it your intention to reside here permanently or indefinitely?
A. It was.
Q. Is that now your intention?
A. It is____”
Mrs. Ben Melson was one of the witnesses whose deposition was also taken on October 13, 1950; and she testified as to Mr. Fair’s residence as follows:
‘ ‘ Q. Bo you know the Plaintiff in this case, Mark L. Fair?
A. Yes, I have known Mr. Fair since June 19,1950, when he rented a room at my hotel here in West Memphis.
Q. Where does he now reside?
A. In West Memphis. ’ ’

Thus, the question of Mr. Fair’s residence was before the Court in 1950; and in the decree the Chancellor, Hon. Francis Cherry, made this specific finding:

‘ ‘ That the Plaintiff is now and has been for more than three months a resident of Crittenden County, Arkansas; . ..”

In Jamieson v. Jamieson, 223 Ark. 845, 268 S. W. 2d 881, a contention was made that the person obtaining the divorce was not a bona fide resident at the time the decree was granted; and in denying the claim in that case we said:

“ ‘The law is settled that the fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed.’ ”

The same rule applies here, and even stronger, because in the case at bar Mrs. Fair, in testifying before the Court in the present case in 1960, said of Mr. Fair’s residence in 1950:

‘ ‘ Q. You allege in your complaint that Mr. Fair was a non-resident of the State of Arkansas at the time this divorce decree was granted to him?
A. Yes, sir.
Q. Now how do you know that or do you know it?
A. Well, I don’t know.
Q. You don’t know ?
A. No.”

With all this evidence before this Court, the majority, by failing to mention the matter of Mr. Fair’s residence in 1950, correctly refused to rest its present holding on any claim that Mr. Fair was a non-resident of Crittenden County, Arkansas when he obtained his divorce in 1950; and that issue, therefore, passes out of this case and we come to the next attack on the 1950 divorce decree.

B. Fraud on Mrs. Fair. The majority is basing the affirmance of the Chancery decree on the theory that Mr. Fair fraudulently concealed from the Court and the attorney ad litem the address of Mrs. Fair. There is no showing that Mr. Fair knew any address for Mrs. Fair other than the one that he gave. The report of the attorney ad litem in the 1950 divorce case is in the record now before us, and the attorney ad litem says in part:

“That on August 19, 1950, he addressed two letters to the Defendant, Mrs. Nancy Fair, 171 Merton Street, Memphis, Tennessee, and Mrs. Nancy Fair, c/o G-eneral Delivery, Vicksburg, Mississippi; that both of said letters were returned marked “unclaimed.”

The affidavit for warning order was duly made in the 1950 case, and the decree finds that the warning order was duly published. In the 1960 case Mrs. Fair claimed that she had a post office box in her maiden name in Vicksburg, Mississippi. The letter was sent by the attorney ad litem to the general delivery in Vicksburg, Mississippi. If Mr. Fair had wanted to conceal the divorce from Mrs. Fair, it seems that he would have given her address as some city other than Vicksburg, Mississippi, because the 1950 United States census shows that Vicksburg at that time was a city of only 27,948 population; and in 1940 the population was 24,460. Furthermore, Mr. Fair gave Mrs. Fair’s Memphis address as 171 Merton Street, which was a place they had formerly owned and which was only two doors from where they had lived at one time. If he was trying to conceal the divorce suit from her, he went dangerously close to letting her know about it by giving such addresses. Mrs. Fair said that she did not know Mr. Fair’s address. How could she expect him to know her address?

In Alsupp v. Alsupp, 199 Ark. 130, 132 S. W. 2d 813, the husband in obtaining a divorce had given the wife’s address as Nashville, Tennessee, c/o the Sheriff’s Office of Davidson County. After the divorce decree was granted, the wife brought suit to set the divorce aside on the claim that the husband had fraudulently concealed from the Court her address, and had thereby kept her from knowing of the suit. This Court held that under the facts and circumstances in that case the address given for Mrs. Al-supp was a good address. The evidence in the case at bar is just as strong to support the address given by Mr. Fair as was the address given in the Alsupp case; and so I conclude that the Court was in error in holding that Mrs. Fair established that Mr. Fair fraudulently concealed her address.

There is another reason for my dissent, and that is the failure of Mrs. Fair in her present suit to allege a meritorious defense to the divorce case or to claim that she was the injured party. In Alsupp v. Alsupp, supra, we said it was essential that a person seeking to set aside a divorce allege facts sufficient to show a meritorious defense. That has been our rule in Arkansas. In the present case, the majority says that Mrs. Fair could not allege a meritorious defense because they had been separated for more than three years without cohabitation, which is the seventh ground for divorce under § 34-1202, Ark. Stats. I earnestly submit that the burden was on Mrs. Fair to show that she was the injured party in this suit in which she is seeking to set aside the divorce so that she can get some property rights. She is not interested in the divorce now for the purpose of settling her marital status, because Mr. Fair is dead. She is interested in setting aside the divorce only in order to get property rights. In failing to claim that she was the injured party, she has lost her chance to claim property rights. Secton 34-1202, Ark. Stats, in the seventh ground for divorce, says, ‘ ‘... and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214, Arkansas Statutes 1947, as hereby amended, or both. ’ ’

In her present complaint to set aside the divorce decree, Mrs. Fair has this as her prayer:

“WHEREFORE, the Plaintiff prays that the Decree of Divorce granted to the said Mark Lee Fair by this Court be set aside, vacated, and declared null and void ab initio inasmuch as the Court proceeded without jurisdiction in granting said Decree because of fraud practiced by the said Mark Lee Fair upon the Plaintiff and upon the Court and that the Court grant to the Plaintiff the recovery of her costs in this action and all other proper legal and equitable relief.”

She failed to pray for property rights and I think that such failure is fatal to her case.

There is also the matter of laches, which I fhi-nTr is a bar to Mrs. Fair. Mrs. Fair testified that she went to Vicksburg to stay with her mother in 1942 or 1943 and that she and Mr. Fair never lived together thereafter. She saw him when he came to the bowling alley, but she made no effort to keep in touch with him. From 1943 to 1959 Mrs. Fair went her way and left Mr. Fair to go his way. I think a wife who goes off and leaves her husband for fifteen years is in poor grace to claim that she can pick Mm up when she gets ready. Husbands are not like chattels that can be thrown down and left until the owner is ready to resume possession. When a wife goes off and leaves her husband for fifteen years I think she is guilty of laches and cannot come in after his death and seek to set aside a divorce.

Paul Ward, Associate Justice,

dissenting.

The apparent equities in favor of Mrs. Fair make me reluctant to disagree with the majority opinion, but the latent dangers inherent therein compel me to do so.

The essence of the majority opinion, as I understand it, is the finding that Mark Fair defrauded the court in procuring the original divorce decree in that “he supplied his attorney and the attorney ad litem with an improper address as to the place of Mrs. Fair’s residence.” This being true the majority of course must be first convinced that Mr. Fair knew her correct address.

The decisive question therefore is: Does the evidence show (conclusively) that Mr. Fair deliberately supplied an improper address?

As I see it, the defect in the majority opinion is that it fails to point out that Mr. Fair knew Mrs. Fair’s address. I am aware of nothing in the record to show that he had such knowledge. If this is true any other conclusions reached by the majority must necessarily rest on conjecture and inferences. Such being the situation the Murphy case and the Lewis case, relied on so heavily by the majority, lose all convincing application. From the Murphy case we quote: “Thereafter the parties lived separate and apart in the City of St. Louis, but each knew the other’s address.” Again in that same case the court stated: “It is admitted that plaintiff furnished this address, and it is admitted also that he knew this was not the address of his wife. ’ ’ From the Lewis ease we quote: “When we consider that appellee was familiar with Missoula and knew the address of his wife’s parents, with whom she was actually living. ..” In the case under consideration we have nothing approaching that degree of certainty or knowledge on the part of Mr. Fair. Concededly it appears unlikely that Mr. Fair did not know his wife’s whereabouts since they both lived at times in the same state and city, but appellee’s own testimony proved conclusively that it could happen. Certainly Mr. Fair, who apparently was a substantial business man, was better known and easier to be found than was his wife, yet she admits that she could not locate Mr. Fair even though she made a determined effort to do so. Why then should this court assume that Mr. Fair was acting in bad faith and fraudulently when he supplied the two addresses mentioned by the majority. Why should we not assume that he supplied the best address available to him.

A solemn judgment of a court of record is the foundation upon which rest important property rights and intimate personal relationships, and courts should act cautiously before sweeping it away, particularly after a lapse of 10 years. The trial judge who rendered the original divorce decree in 1950 had much better opportunity to inquire into the matter of service than this court has at this late date. In that court decree the judge stated that he had given “careful consideration to plaintiff’s complaint in equity, proof of publication of warning order and the report of the attorney ad litem.” It is not questioned that Mr. Fair complied with all the provisions of the statute in securing proper service by warning order.

In the beginning I mentioned the “latent dangers inherent” in the majority opinion, and I believe they are real. Theoretically and actually it jeopardizes the happiness of thousands of homes and the ownership of untold millions of dollars in personal and real property where they have been established on this kind of service. The stability of such values should not rest upon what some court determines to be the state of mind of a litigant 10 years previously — that is, did he act honestly or fraudulently. As was said by this court many years ago in a similar situation in the case of Boynton v. Ashabranner, 75 Ark. 415, 88 S. W. 566, 88 S. W. 1011, 91 S. W. 20; “Any other view of the law would permit the retrial of the question whenever either party sees fit to tender the issue anew, and the final adjudications of the courts of competent jurisdiction would rest upon a slender thread.”

       There is not the slightest indication that either Mr. Fair’s attorney in the divorce action or the attorney ad litem was guilty of any impropriety of any kind or guilty of any conduct unbecoming a lawyer.

       At the time the Fair divorce decree was granted in 1950, the case of Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585, was the law; and bona fide residence (He., domicile) was the requirement. Later, the Legislature by Act 36 of 1957 eliminated the bona fide residence (domicile) requirement; and the Legislative enactment was sustained in Wheat v. Wheat, 229 Ark. 842, 318 S. W. 2d 793. But Mr. Fair’s testimony in the 1950 divorce case met the requirements of the Cassen case.

       To the same effect see also Williams v. Williams, 224 Ark. 949, 277 S. W. 2d 77.


author: Ed. F. McFaddin, Associate Justice.

text:
    Wood v. Wood.
    5-2237
    340 S. W. 2d 393
    Opinion delivered November 28, 1960.

      Martin, Dodds £ Kidd, for appellant.

      Bose, Meek, House, Barron £ Nash, for appellee.
   Ed. F. McFaddin, Associate Justice.

The Chancery Court granted Dr. Wood an absolute divorce; and Mrs. Wood in prosecuting this appeal lists two points:

I. Trial Court Erred by Denying Appellant the Eight to Participate in the Trial.

II. There Was No Corroborative Testimony or Evidence Submitted to Sustain the Decree.

The correctness of appellant’s position on the second point is so clearly determinative of the appeal that we discuss the second point at the outset.

A. Lack of Corroboration. Dr. Wood sought au absolute divorce on the claim that he and his wife had lived separate and apart for three consecutive years (the seventh ground stated in § 34-1202, Ark. Stats.). In a divorce action no complaint can be taken as confessed (§ 34-1207, Ark. Stats.). We have many cases which hold that in suits for absolute divorce there must be corroboration of the plaintiff’s testimony. See Sisk v. Sisk, 99 Ark. 94, 136 S. W. 987; Shelton v. Shelton, 102 Ark. 54, 143 S. W. 110; Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486; Johnson v. Johnson, 122 Ark. 276, 182 S. W. 897; Fania v. Fania, 199 Ark. 368, 133 S. W. 2d 654; Gabler v. Gabler, 209 Ark. 459, 190 S. W. 2d 975; and Saugey v. Saugey, 228 Ark. 110, 305 S. W. 2d 856.

In the light of the foregoing, we examine the evidence offered in the case at bar. Only two witnesses testified : one was the Clerk of the Chancery Court, who testified entirely as to pleadings, continuances, and such procedural matters. The testimony of this witness could not be claimed to have corroborated Dr. Wood in any way as to his ground for divorce. The only other witness was Dr. Wood. He testified most strongly in support of his case. But, the only corroboration offered was the ex parte affidavit of William Harris; and this affidavit was offered as an exhibit to Dr. Wood’s testimony. We have frequently held that affidavits cannot be used as independent evidence. Western Union v. Gillis, 89 Ark. 483, 117 S. W. 749; Evans v. Farris, 188 Ark. 83, 64 S. W. 2d 325. In Johnson v. Johnson, 122 Ark. 276, 182 S. W. 897, and again in Gardner v. Gardner, 142 Ark. 292, 218 S. W. 663, we specifically held that affidavits could not be received as independent testimony and as corroboration in a divorce case. In the last cited case we said:

‘ ‘ The ground urged here for reversal is that the decree was rendered on ex parte affidavits. The record sustains appellant in this contention, for it recites that the cause was heard on the affidavits of appellee and two other witnesses . . . Accepting the recitals of the record as true, which we should do on appeal, it is apparent that the decree was based solely on ex parte affidavits introduced in evidence, and it has been decided by this court that it is error to accept such character of evidence, and that it cannot be made the basis of a decree for divorce. Johnson v. Johnson, 122 Ark. 276.”

There was no evidence to corroborate the testimony of the plaintiff; and the Chancery Court was in error in awarding Dr. Wood a decree for divorce. The Chancery decree is reversed, and the divorce is annulled.

B. Disposition of The Case. In order to do full justice to both parties and to give appellant an opportunity to defend any divorce case against her — a right she claims was denied her in this case — we have concluded that the Chancery Court should, and it is hereby directed to, dismiss the present case without prejudice. Then either party is free to institute a new case if so desired. All costs in the present case are taxed against the appellee, Dr. Wood.

George Rose Smith, J., not participating.

       This affidavit was on the stationery of the Veterans Administration Hospital, Perry Point, Maryland, dated March 2, 1960, and reads in full as follows: “TO WHOM IT MAY CONCERN: “This is to certify that Benjamin S. Wood, M.D. was appointed as a resident in Psychiatry in the Perry Point Veterans Administration training program on March 11, 1957 and that he served continuously in the Perry Point Program until September 4, 1959 at which time he was placed on detail to Little Rock, Arkansas.
      To the best of my knowledge during Dr. Wood’s stay at Perry Point he was never accompanied nor did he live with his wife, Barbara R. Wood.
      Very truly yours,
      /s/W. M. Harris, M.D.
      Assistant Director, Professional
      Services for Education.
      (Seal of Margaret M. Bell,
      Notary Public, Cecil County, M.D.)
      /s/Margaret M. Bell
      My commission expires 5/1/61.”


author: George Rose Smith, J.

text:
    B. & M. Land Co. v. State.
    5-2255
    340 S. W. 2d 395
    Opinion delivered November 28, 1960.
    J. H. Spears and Burch, Porter, Johnson S Brown, Memphis, Tenn., for appellant.

      Bruce Bennett, Atty. General, by John T. Haslcins, Asst. Atty. General, for appellee.
   George Rose Smith, J.

This is a civil action brought by the prosecuting attorney to close the appellants’ place of business, known as Danny’s Club. Ark. Stats. 1947, §§ 34-111 et seq. This appeal is from a final judgment perpetually enjoining the appellants from operating a dance hall or road house upon the property but permitting it to be used for any other lawful business. The appellants contend that they should be permitted to operate a public dance hall, with proper safeguards to prevent its becoming a nuisance.

The prosecuting attorney’s complaint charged that Danny’s Club was being conducted in violation of the law, that intoxicants had been unlawfully consumed upon the premises by minors and others, and that affrays and general breaches of the peace had been frequent. Upon the filing of the complaint the court issued a temporary order closing the place until a hearing on the merits. The appellants then filed a petition asking that the temporary injunction be modified to permit them to open and maintain a public dance hall in a lawful manner, with no intoxicating liquors being sold, consumed, or brought upon the premises.

At the final hearing the State introduced no testimony, as the defendants admitted that the State could, if necessary, produce witnesses to prove the allegations we have summarized. The principal appellants, Robert and Dan Trabish, described the manner in which they plan to operate their business if permitted to reopen. They intend to remove the tables from what has been a road house and to conduct the place solely as a public dance hall, featuring nationally known bands. Neither minors nor intoxicants would be permitted upon the premises, and the proprietors would co-operate with law enforcement officers in every way. The Trabishes testified without contradiction that their investment in the property is about $79,000 and that the building is not suitable for any use except that for which it was designed.

The case is not free from difficulty, but we have concluded that the order should be modified to permit the appellants to operate a public dance hall, with the safeguards described in their petition and testimony. In a proceeding of this kind we review the evidence as in a chancery case. Alston v. State, 216 Ark. 604, 226 S. W. 2d 988. In some cases we have approved orders perpetually enjoining the operation of a dance hall upon the property involved. Foley v. State, 200 Ark. 521, 139 S. W. 2d 673; State v. Williams, 222 Ark. 966, 264 S. W. 2d 417. On the other hand, in Portman v. State, 204 Ark. 349, 162 S. W. 2d 67, we sustained an order that prohibited gambling and the sale of intoxicants but permitted public dancing to continue. Each case must be determined upon its particular facts. We do not know, nor did the trial court know, how objectionable the operation of Danny’s Club lias been in tbe past, as tbe State was not required to offer any proof. In view of all tbe circumstances we think the appellants should be given an opportunity to conduct their business in a lawful manner. If this attempt on their part should fail the State has a prompt and effective remedy through the institution of contempt proceedings. Ark. Stats., § 34-118; Lawson v. State, 226 Ark. 170, 288 S. W. 2d 585.

Modified and remanded for the entry of an order consistent with this opinion.


author: Paul Ward, Associate Justice.

text:
    Fee v. Leatherwood.
    5-2198
    340 S. W. 2d 397
    Opinion delivered Nov. 28, 1960.

      'McMillen, league d Coates, hy Eugene F. Mooney, Jr,, for appellant.

      Robert B. Gibson, for appellee.
   Paul Ward, Associate Justice.

In February, 1958, W. C. Leatherwood and B. C. Castleberry (appellees) filed a suit against appellants to quiet title to 342 acres of timber land located in Section 16, Township 13 South, Bange 3 West, in Desha County. It was alleged that Leatherwood had acquired title to said lands by adverse possession for more than 7 years. Appellants lay claim to the land by inheritance from one Mamie Kone Fee, who was the fee owner of said land at the time of her death in 1931. Two of the appellants are the grandchildren of said Mamie Kone Fee and the other appellant is their mother, who was also the wife of the son of the said Mrs. Fee.

For clarity and convenient reference we divide the subject lands into three separate groups as set out below:

GBOUP I. The South One-half of the Northeast Quarter, 80 acres; all of the Southeast Quarter of the Northwest Quarter east of the railway track and highway No. 65, approximately 30 acres.

GBOUP II. The Southwest Quarter of the Northwest Quarter, 40 acres; all of the Northeast Quarter of the Northwest Quarter lying west of the said railway and road, 22 acres; all of the Southeast Quarter of the Northwest Quarter lying west of said railway and road, approximately 10 acres.

GBOUP III. The North half of the Southeast Quarter, 80 acres; Southwest Quarter of the Southeast Quarter, 40 acres; Northeast Quarter of the Southwest Quarter, 40 acres.

At the conclusion of the trial the court confirmed the title in appellees to all of the land in Group III. Appellants have not appealed from this portion of the decree, and so these lands are no longer in litigation.

The title to the lands in Group II was quieted, subject to certain restrictions to be noted later, in Jane Day Fee (one of the appellants) to an undivided one-half interest, and in appellees to an undivided one-half interest. Appellants appealed from that portion of the decree giving only a one-half interest to Jane Day Fee, but appellees have not appealed from that portion of the decree giving a one-half interest to Jane Day Fee. We will later discuss appellants’ appeal in this connection.

The trial court quieted title in appellees to all of the lands in Group I. The principal arguments of appellants are directed to a reversal of this portion of the chancellor’s decree. To better understand the issues involved in this connection, it is necessary to set forth a summary of the factual background and portions of the testimony.

As heretofore stated the title to this 342 acres of timber land was held in fee by one Mamie Kone Fee, who died in 1931. Beginning about the time of her death and for several years thereafter all of the lands forfeited for taxes and were never redeemed. The forfeiture of the lands in Group III was by a valid description, but the remainder of the lands were described by an invalid description, being described only as a part of the North One-half of the Section. Mrs. Mamie Kone Fee, who died intestate, left surviving her one son, Edward S. Fee, Sr., who died intestate in 1942. Edward S. Fee, Sr., left surviving him his widow and a son and daughter, named Edward Fee, Jr., and Jane Day Fee, respectively. It is important to note that Jane Day Fee was born in 1937.

In 1931 Alex White moved onto the land and built a small house on the lands in Group I. It appears from the evidence that this house was perhaps surrounded by three or four acres of cleared land. In addition to this, White cleared and cultivated approximately thirty acres of land, but no definite description of this thirty acres is contained in the record. In addition to the above, it appears that White also cleared and pastured an additional parcel of land consisting of approximately eleven acres, to which no definite description is in the record. Alex White was joined in this occupancy by a woman named Ella Williams. They occupied the lands together until 1945 or 1946 when White died. In the meantime a third party had bought the tax title to the forfeited lands and this party, by means of certain negotiations with Ella Williams, succeeded to her rights in the occupancy of the lands. Appellee, Leatherwood, derives his title through this third party. (It is noted here that Castleberry became a party to the suit and is now one of the appellees by virtue of the fact that he has a contract to buy the lands from Leatherwood.)

It is because of this adverse occupancy by Alex White and his privies for a period of 7 years (beginning in 1931) that Leatherwood now claims title to the lands in question. In addition to the occupancy of the lands by Alex White and Ella Williams, appellees and their privies entered upon the lands more than seven years before filing suit and have continuously occupied and improved all of it up until this time. This fact is not seriously controverted by appellants.

The above factual situation poses the following problems: (a) If the nature of the occupancy by Alex White and Ella Williams for the period from 1931 to 1938 or ’39 was sufficient to vest title in them to all the lands in Group I then the Chancellor was correct in so holding. This would be true because Jane Day Fee would have no right which she could assert, since her father would have lost the land, (b) If, however, the adverse occupancy by White and Williams was not sufficient to extend to all of the lands but only to the lands to which they actually occupied (the home, the thirty acres and the eleven acres) then appellees would have to rely on ‘ ‘ the latter period of adverse occupancy.” In this event, however, Jane Day Fee would still have an existing interest in the lands because she had not reached the age of twenty-one when this suit was filed, and the statute had not run against her. See: Jackson v. Cole, 146 Ark. 565, 226 S. W. 513.

(a) It is our conclusion that the Chancellor erred in holding that the adverse occupancy of White and Williams extended to all of the lands in Group I. It is conceded by appellees that White and Williams were not occupying the land under color of title and the record reflects that the lands in Group I were not enclosed by a fence. Except for the three parcels of land mentioned above, there is no showing of actual or pedal possession of the lands in Group I, by White and Williams. It was shown that White cut some timber and hauled if off in a wagon or cart, but it was not shown to have been continuous for seven years or that it was co-extensive with the land. Under these circumstances, there being no color of title, the occupancy of the said parcels of land did not extend to the rest of the lands in Groups I and II. The law in this respect is well settled.

In the case of Bradbury v. Dumond, 80 Ark. 82, 96 S. W. 390, 11 L. R. A. (N. S.) 772 the court said: “Color of title is not necessary to give title by adverse possession, but it is necessary to extend the title acquired beyond the limits of the actual possession.” (Emphasis supplied.) In the case of Dickson v. Sentell, 83 Ark. 385, 104 S. W. 148, the court was dealing with adverse possession based on an indefinite description, and the court said: ‘ ‘ This description is so vague that it does not constitute color of title, so that possession of part will be considered possession of the whole.” Likewise in the case of Bailey, Trustee v. Martin, 218 Ark. 513, 237 S. W. 2d 16, the court reaffirmed the rule in the Bradbury case supra. In Cooper v. Cook, 220 Ark. 344, 247 S. W. 2d 957, the court announced the rule in these words: “It is well settled by our decisions that while color of title is not necessary to give title by adverse possession, it is required to extend an actual possession of a part of a tract of land constructively over the rest of it. Thus the adverse possession of appellees in the ease at bar is limited to the land they actually occupied.”

(b) Appellants do not appear to seriously contend that the adverse occupancy of appellees and their predecessors for a period of seven years immediately before this suit was filed was not sufficient to give them title to all of the lands in Groups I and II including the three parcels actually occupied by White and Williams but, if so, we find from the record that such occupancy was sufficient. Nor can appellees successfully contend that such occupancy barred the rights of Jane Day Fee, who was not of age when the suit was filed. See: Jackson v. Cole, supra. It is contended however by appellants that since Jane Day Fee could successfully defend, her right to do so extends to her brother and mother. We cannot agree with this contention on the part of appellants since the lands in question were not a homestead, and since they were co-tenants. See: Jackson v. Cole, supra and 43 C.J.S. § 32 page 100. Furthermore this is not a suit to redeem.

From what we have said above we have reached the conclusions hereinafter set out. (1) Appellees’ title should be quieted to the three parcels of land actually occupied by White and Williams. It will be appropriate however for the trial court, on remand, to see that these parcels are located and definitely described. (2) As to the remaining lands in Group I, Jane Day Fee should have her title confirmed to an undivided one-half interest, and likewise an undivided one-half interest in the same lands should be quieted in appellees. (3) For the reasons heretofore set out the trial court was correct in the disposition it made of the lands in Group II, and in refusing to make any award to the mother and brother of Jane Day Fee.

We mentioned heretofore that the trial court gave Jane Day Fee an undivided one-half interest in the lands in Group II with certain reservations. These reservations by the court were that Jane Day Fee took title ‘ ‘ subject to the betterment and tax payments of the plaintiff.” The court itself reserved this issue for future consideration. Also, in view of the charge which we have made in that portion of the decree dealing with the lands in Group I, the trial court should further consider the question of “betterment and tax payments” pertaining to tbe lands in that group.

Tbe decree of tbe trial court is therefore affirmed in the respects above indicated, and it is reversed in other respects as heretofore set out, and the cause is remanded for further proceedings relative to the matters heretofore mentioned.

George Rose Smith, J., not participating.


author: Jim Johnson, Associate Justice.

text:
    Warren v. State.
    4998
    340 S. W. 2d 400
    Opinion delivered November 28, 1960.

      Richard W. Hobbs, for appellant.

      Bruce Bennett, Atty. General, by John T. Haskins, Asst. Atty. General, for appellee.
   Jim Johnson, Associate Justice.

This is a criminal case. The action originated with the filing of an information against the appellant H. C. (Dusty) Warren in Garland County charging him with the crime of violating Amendment No. 10 of the Constitution of Arkansas. The information alleged that the appellant in his capacity as county judge did in and during the fiscal year of 1959, in violation of Amendment No. 10, make or authorize contracts and/or make allowances of claims in excess of the revenue from all sources for the said fiscal year in which the said contracts and/or allowances were made and that he did sign or issue script, warrants and/ or make allowances in excess of the revenue from all sources for the fiscal year of 1959. A warrant was duly issued, the appellant was arrested, and allowed to make bond. The case was set for trial on June 20,1960, and the appellant at that time entered a plea of not guilty to the charge. Trial ivas had before a jury which returned a verdict of guilty and assessed punishment at a fine of $500 with a recommendation that the fine be suspended.

Formal judgment and sentencing took place on June 24,1960, and the trial court followed the recommendation of the jury and assessed a fine of $500 and suspended the fine but did formally remove the appellant from his office as county judge in accordance with the provisions of Amendment 10.

A motion in arrest of judgment was filed on June 24, 1960, and the same was overruled on that date. A motion for new trial was then filed; the court overruled that motion and granted an appeal to this Court.

Since this case arises out of an alleged violation of Arkansas Constitution, Article 12, Section 4, which was amended to its present form by Amendment 10, passed in 1924, we here set out the pertinent part of this Amendment as follows:

“. . . The fiscal affairs of counties, cities and incorporated towns shall he conducted on a sound financial basis, and no county court or levying board or agent of any county shall make or authorize any contract or make any allowance for any purpose whatsoever in excess of the revenue from all sources for the fiscal year in which said contract or allowance is made; nor shall any county judge, county clerk or other county officer, sign or issue any script, warrant or make any allowance in excess of the revenue from all sources for the current fiscal year; . . .
“Provided, however, to secure funds to pay indebtedness outstanding at the time of the adoption of this amendment, counties, cities, and incorporated towns may issue interest-bearing certificates of indebtedness or bonds with interest coupons for the payment of which a county or city tax in addition to that now authorized, not exceeding three mills, may be levied for the time as provided by law until such indebtedness is paid.
“Where the annual report of any city or county in the State of Arkansas shows that script, warrants or other certificates of indebtedness had been issued in excess of the total revenue for that year, the officer or officers of the county or city or incorporated town who authorized, signed or issued such script, warrants or other certificates of indebtedness shall be deemed guilty of a misdemeanor and upon conviction thereof, shall be fined in any sum not less than five hundred dollars nor more than ten thousand dollars, and shall be removed from office. ’ ’

The evidence reveals that soon after appellant took office as County Judge of Garland County in January 1959, he purchased $80,000 worth of road machinery from Paul Goodwin and entered into a sales contract for the payments to be made over a two-year period. Eegarding this purchase, appellant testified as follows:

“When I assumed office as county judge the road department had been closed down since the first of December until January 1. This was a cold spell and lots of ice and snow. When I took office, it cost the county better than $4,000.00 to get the machinery started and took us about a month. In my opinion the county needed additional equipment because the county had progressed, there being new subdivisions and new roads and the demands of the people and to give the people service, I thought that they needed, I felt we needed more and better machinery.
“The county didn’t have enough money then to purchase new equipment and the only way we could do it was to buy it on installments. New graders cost $23,000.00 each; we had seven graders and some of those we couldn’t ever use so the only way I could work it out was on installments to be paid out of the state turnback. I entered into a contract for the purchase of some used equipment and some new equipment and the agreement was that the county couldn’t pay cash and the payment would have to be made out of the state turnback and I authorized payments out of the county road fund and the warrants that were paid were paid out of the county road fund.”

Because of the payments on the contract thus entered into by appellant, auditors with the County Audit Division of the State Comptroller’s Office, while cheeking the Garland County records, found that claims for the payments on this contract were allowed and warrants of the county were written in 1960 which were for expenses incurred in 1959 (purchase of machinery). The amount of these warrants was charged back to the year 1959 thereby causing a deficit or overdraft for that year in the amount of $1,039.57. Odell Moudy, one of the auditors assigned by the Comptroller’s Office to audit the books of Garland County, testified relative to their audit as follows:

“I kicked back certain claims which were allowed in 1960 to the year 1959 and these came under the heading of disbursements. The total amount of these claims I kicked back was approximately $20,000.00. I put them back in 1959 based upon what I thought the law was . . . even though they were allowed in 1960. That is the rule followed in every county in Arkansas by my department. If you took the actual expenditures and disbursements of 1959, approved and allowed during that year, and forgot about 1960 there would be no deficits but $21,000.00 to the good . . .”

Applying the facts in this case to the prohibitions contained in Amendment No. 10, we must proceed on the premise that a portion of this amendment is a penal law and that part constituting a penal law is to be strictly construed. Key 241(1) Statutes, West’s Digest.

In speaking of contracts such as appellant here entered into, this Court said in Cook v. Shackleford, 192 Ark. 44, 90 S. W. 2d 216:

“. . . The only question for us to decide is whether contracts made, or indebtedness created in excess of the revenues from all sources for the years in which the contracts are made, are void.
“Amendment No. 10 has been construed by this Court many times and in the case of Standfield v. Friddle, 185 Ark. 873, 50 S. W. 2d 237, we said: ‘The law may therefore be regarded as definitely settled that any contract entered into or allowance made in excess of the revenues of the year in which the contract was entered into, or the allowance made, is wholly void, and the issuance of any county warrants based thereon, adds nothing to their validity, as the warrants are also void.’ ”

Following the rule set out above, the contract for the purchase of machinery entered into by appellant in the case at bar was “wholly void” as were the warrants issued for payment on the same.

The provision of Amendment No. 10 relative to contracts made for the payments of amounts in excess of revenues from all sources for the year in which the contracts are made is separate and apart from the penal provisions under which the appellants was prosecuted.

The penal provision under which appellant was convicted refers only to the issuance of script, warrants or other certificates of indebtedness in excess of the total revenues for the year. The Amendment refers to certificates of indebtedness as being in the nature of interest-bearing bonds. The contract in itself cannot be considered as a certificate of indebtedness. Here it is not shown that appellant issued script, warrants or other certificates of indebtedness in excess of the total revenues for the year 1959, as charged, and it is not shown that the paper be issued in 1960 exceeded the revenues for that year, nor is he charged with issuing excessive paper for 1960. Therefore, following the rule of strict construction and adhering to the prohibition against extending penal provisions to include that which is not by its plain language clearly included [Key 241(1), Statutes, West’s Digest, supra] we reach the conclusion that the undisputed evidence shows appellant did not violate that part of Amendment No. 10 making it a misdemeanor to issue script, warrants or other certificates of indebtedness in excess of the total revenues for the year in which such paper is issued.

Reversed and dismissed.

Harris, C. J., concurs. McFaddin, J., dissents.