author: Paul Ward, Associate Justice.

text:
    Payne v. State.
    4846
    295 S. W. 2d 312
    Opinion delivered November 5, 1956.
    [Rehearing denied December S, 1956.]

      Wiley A. Branton, for appellant.

      Tom Gentry, Attorney General and Thorp Thomas, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Frank Andrew Payne, was charged by information with the murder of J. M. Robertson on October 4, 1955. A jury found him guilty of murder in the first degree and fixed his punishment at death by electrocution. For a reversal, appellant sets forth a number of objections and alleged errors in his Motion for New Trial. We have given careful consideration to each one of the above assignments, some of which will be disposed summarily, but we will discuss hereafter in some detail only those assignments of error which appear to have merit and those upon which appellant places the greatest emphasis.

1. The trial court overruled appellant’s motion to quash the information, and two grounds are here relied on to show error.

(a) It is contended by appellant that Amendment No. 21 to the Constitution of this State, substituting an information by the prosecuting attorney for an indictment by the grand jury, violates the 5th and 14th Amendments to our Federal Constitution. This question has already been passed on contrary to appellant’s contention (as admitted by appellant) in the case of Penton v. State, 194 Ark. 503, 109 S. W. 2d 131 and affirmed in Smith & Parker v. State, 194 Ark. 1041, 110 S. W. 2d 24. We now assert, as was stated in the latter mentioned case in referring to the former mentioned case, that: “There is no reason at this time to re-examine and restate our conclusions reached in the case above. That opinion is controlling on this case.”

(b) Notwithstanding the above, appellant makes the further contention that the information in this case should have been quashed because it is undisputed that it was issued before there had been a preliminary hearing. In support of this contention appellant apparently relies on Ark. Stats. § 43-806 which provides that when a defendant has been held to answer at a preliminary examination the prosecuting attorney may file an information. The section referred to is a part of Act 160 of the Acts of 1937 which was passed to implement Amendment No. 21 referred to above and was not meant to be a limitation on tlie powers granted by the amendment. This court definitely settled the question against appellant’s contention in the Penton case, supra, at page 513 of the Arkansas Reports, where it was stated:

“The principle distinction between provisions of § 1 of Amendment 22 to the Constitution of Arkansas, and the provision of California’s Constitution authorizing prosecutions under information, is that as a condition precedent to the validity of prosecutions on information in California, there must have been examination and commitment by a magistrate. Omission of this requirement from the Arkansas Amendment does not deprive the accused of the rights of due process guaranteed under the Constitution of the United States.”

Our Amendment No. 21 (referred to above as 22) says nothing about a preliminary hearing.

2. It is ably and earnestly insisted that the trial court erred in admitting in evidence a confession made and signed by appellant. This argument is based on the contention that appellant was mistreated and that he was induced by fear and intimidation to make the confession. After careful consideration we are unable to agree with appellant.

Robertson was killed about 6:00 P. M. on Tuesday, October 4, 1955, and appellant was arrested the next morning and placed in the city jail at Pine Bluff. He was taken early the next morning, October 6th, to Little Rock for a lie detector test and was returned to Pine Bluff that afternoon and replaced in the city jail. The next day, October 7th, at about 1:00 P. M. he was taken to the county jail and his confession was made, signed and witnessed at about 2:00 P. M. Later that same afternoon he was taken, presumptively for security purposes, to the county jail at Dumas where he spent the night but was returned to Pine Bluff on the following morning. On examination appellant testified that he was not given anything to eat, that his clothes were taken away from him, that (in effect) he was threatened with the result of mob violence if he did not confess and that some of his relatives were arrested. He stated that while in the jail at Dumas he was reminded of the fate of a Negro boy in Mississippi. We here note that appellant was a Negro, 19 years of age.

A great deal of testimony was taken relative to the alleged threats and mistreatment, and the circumstances attending the confession. A careful consideration of this testimony convinces us that the confession was properly allowed in evidence. Several witnesses were present when the confession was made and they all testified that, at no time, were there any threats or any mistreatment of the appellant. In the confession itself appellant states that he was not in any way mistreated. The State Police Sergeant who took appellant to Little Rock admits that they took his shoes and socks off before they left Pine Bluff and that they removed his pants and shirt after he arrived at Little Rock, all for the purpose of laboratory examinations. The sheriff admits that shortly before the confession was, actually given he merely informed appellant that there were several people outside the jail. His explanation was that appellant had already indicated he wanted to make a confession and the sheriff thought it would be better to have the confession made in private, having in mind the safety of appellant. Any statement that might have been made to appellant while in jail at Dumas could not have influenced his confession which had already been made the day before. Before the trial court decided to admit appellant’s confession in evidence he heard voluminous testimony, in chambers, from all of the officers and people who had been in contact with appellant during his period of confinement before the confession was made. All of them deny that appellant was mistreated in any way or that he was in any way threatened. This procedure was approved in McClellan v. State, 203 Ark. 386, 156 S. W. 2d 800, and we are convinced that the confession was properly introduced in evidence. It is true that some of appellant’s relatives were arrested soon after, he was taken into custody but, as explained, this was done in an effort to prevent the money which appellant was supposed to have taken from the deceased from being disposed of.

3. While Sergeant Buck Halsell was on the stand the prosecuting attorney asked this question. “Sergeant Halsell, I believe yon stated that yon were active in the investigation of the murder of J. M. Robertson. A. That’s right.” The attorney for appellant objected to the question on the ground that “it hasn’t been established there was a murder yet.” The prosecuting attorney replied that “I believe it was established in his opening statement.” The court then instructed the attorneys to go ahead and there were no further objections. We are not convinced that this incident materially prejudiced the rights of appellant or that it calls for a reversal. It is reasonable to suppose that the jury understood that the prosecuting attorney was merely asking the witness if he had been active in the investigation of the death of Robertson.

4. After the State had rested its case late in the afternoon the court recessed for 5 minutes in order to take up some motions presented by the defendant. After this was done .the attorney for appellant made this statement :

“Mr. Branton: The defendant at this time notes that it is a quarter of five and the defendant requests that the Court recess until tomorrow morning to allow the defense attorney time to consult with his client and further prepare for the defense of the defendant in this case.

The Court: I think we ought to finish this testimony this evening if we can — if we can’t, well, all right; I think you are entitled to a few minutes, but not the rest of the day and tonight.

Mr. Mullis: If the Court please, I object to that motion — I would like to get the testimony in for this reason, there are several witnesses here now who are being held and are holding up another Court.

The Court: The Court is familiar with that. If you want a few minutes we will get out and let you have, your client and let you do what you want' to, but I think we should finish, this testimony this afternoon, this afternoon or. tonight, if we can.

Mr. Branton: I would like a few minutes.

The Court: I rule we are going to finish the testimony if we can.

Mr. Branton: I object to the ruling of the Court as to the recess.”

Under this state of the record we see no error in the court’s refusal to grant a recess until the following day. It will be noted that appellant’s attorney gave no special reason for asking the court to adjourn other than to consult with his client and further prepare for his defense. It was not stated or shown in what way appellant would be prejudiced by the court’s refusal to grant the recess. This court in the case of Edwards v. State, 171 Ark. 778, 286 S. W. 935, held that it was not error for the court to refuse a postponement of a tidal for a few hours until some of defendant’s witnesses should arrive, where the defendant had announced ready for trial without such witnesses being present.

5. After both sides had rested, but before the case was submitted to the jury, late in the afternoon the court permitted the jurors to separate and go to their several homes. It is objected by appellant that this was error although he admits that it is a matter of discretion with the court. Ark. Stats.. § 43-2121 specifically provides : ‘ ‘ The jurors, before the case is submitted to them, may, in the discretion of the court, be permitted to separate . . . ” In Hamilton v. State, 62 Ark. 543, 36 S. W. 1054, this court said: “Permitting the jury in a murder case to separate before the case was finally submitted to them is not reversible error where no prejudice is shown.” It is not disputed that no such prejudice is shown here.

In this connection it is also contended that the court did not properly admonish the jury before they separated, but we think no reversible error appears. This contention is based on Ark. Stats. § 43-2122 which provides that before each adjournment the jury must be admonished by the court “that it is their duty not to permit any one to speak to or communicate with them on any subject connected with the trial . . .” In this instance the court stated to the jury: “Remember, don’t discuss the case and don’t permit anyone to discuss it with you; . . . ” It was not until after the jury bad left the court room that appellant made any objection. It was only then that appellant’s attorney made this statement: “For the record I want to object to the jury being permitted to separate for the night.” We think the admonition given by the court was a substantial compliance with the statute. The record shows that the court had previously, on occasion of adjournment in this case, given the jury a full and complete admonition, and he started this one with the word “remember.” If appellant thought the admonition given by the court was not sufficient, he should have so indicated at the time.

6. At the close of all of the testimony appellant made a motion for a directed verdict of not guilty which was overruled by the trial court and this is assigned as reversible error. In this connection the argument is made that the evidence is not sufficient to support the verdict of the jury. There is not merit in this contention.

We have already concluded that appellant’s confession was properly introduced in testimony. In this confession he admitted that he took an iron rod and hit the deceased over the head and knocked him to the floor and then hit him several more times, and then he took money out of the cash drawer. Even without this confession there is much evidence to support the jury’s verdict. Evan Reed, an employee of the deceased at the Bluff City Lumber Company, testified that he left the company office about 5:30 P. M. on the day Robertson was killed, and that the deceased and appellant were the only ones there when he left. He returned 10 or 15 minutes after 6 o’clock and found Robertson lying on the floor dead or dying. In a short while the officers found some of appellant’s clothes at his residence located at 805 Birch Street with blood stains on them. Appellant pointed out to a witness where he got the metal rod and where he placed it after he had struck the deceased. When the officers took appellant to his home, appellant told them where they would find the money. He stated that it was hidden in a piano and upon searching the piano the officers found $444. The evidence shows that this was approximately the amount which the deceased had in his office at the time. There can be no question we think, about the sufficiency of the testimony to support the jury’s verdict of murder in the first degree.

7. Discrimination. The point which appellant stresses forcibly and ably, and which merits the closest scrutiny, is that the Negro race was discriminated against in the selection of the jury panel which tried him. His motion to quash the jury panel, and testimony supporting the same, mentions two grounds upon which error is predicated in the court’s refusal to grant his motion; (a) discrimination against his race in the selection of the jury commissioners, and (b) discrimination in the selection of the jury panel.

(a) There is no merit in appellant’s contention that no Negroes were selected as jury commissioners at the term previous to the one at which he was tried, or for many years previous thereto. This question was decided by this court against appellant’s contention in the case of Maxwell v. State, 217 Ark. 691, 232 S. W. 2d 982. At page 694 of the Arkansas Reports we said: “Appellant further contends that he was discriminated against within the meaning of the 14th Amendment because there were no Negroes on the jury commission. We know of no rule making this requirement and the suggestion must be rejected.”

(b) In support of appellant’s contention that his race was discriminated against in the selection of the jury panel which tried him, substantially the following facts were disclosed: Prior to 1947 and for many years no Negroes had been placed on the regular panels of the petit jury; Since 1947 29 Negroes had served as regular members of the petit jury, during which years there were three panels on which no Negroes served and the most that served any one year was 6; Approximately 30 per cent of the qualified electors in Jefferson County are Negroes. In addition to this, testimony of the jury commissioners who selected the panel of jurors for the term at which appellant was tried was introduced. One commissioner stated he felt that he should not select any one for the jury that he did not know and that he was limited in his knowledge of the people whom he was trying to select. He further stated: “I have lived in this county for 57 years; I think I would he as well qualified to select either white or black as anybody else.” “Q. Do you know very many Negroes who would he qualified for jury service? A. I think so.” It appears that he actually recommended one of the two Negroes who was selected on the panel. The second commissioner stated that he knew quite a few colored people and that he had been doing business with them quite awhile although he knew that all of them would not be qualified or eligible for jury service. The third commissioner stated that he felt that there should be some Negroes on the panel but hadn’t given any thought as to whether they should be selected on a proportional basis.

The argument is advanced that the above factual situation makes a prima facie showing of racial discrimination for many years previous to the date of the trial, citing the case of Green v. State, 222 Ark. 222, 258 S. W. 2d 56. We do not agree. In the Green case it was shown that no Negro had been selected on the regular jury panel for the past 30 years, but that is not the situation here. It is shown by the testimony that the 29 Negroes who had actually served on the jury panel since 1947 did not include all the Negroes who had been selected for service. On the other hand it was shown that many others, the number undisclosed, had been selected but had not served for different reasons. The burden therefore was not on the State but on the appellant to introduce testimony showing discrimination.

We think the testimony tending to show discrimination in the case under consideration is weaker to sustain appellant’s contention than that shown in the case of Washington v. State, 213 Ark. 218, 210 S. W. 2d 307, where the court held that no discrimination existed. The cited case came to us from Jefferson County where it was tried in 1947 as a time when no Negroes had previously been selected for jury service. In holding that there was no discrimination the court, at page 223 of the Arkansas Reports, had this to say:

“But the proof in this record shows that the three Negroes were members of the regular panel of petit jurors called in the present case. They were V. T. Price, R. D. Doggett and Prince Swaizer. They were members of the regular panel, and numbered 7, 10 and 12 in the examination of jurors for trial in this case. There is no evidence even tending to show that the jury commissioners selected these three Negroes or any other members of the jury panel for any purpose other than to truly comply with the law of the land.”

Based on the testimony of the jury commissioners mentioned above appellant strongly insists that this case is controlled by Cassell v. Texas, 339 U. S. 282, 70 S. Ct. 629, 94 L. Ed. 839, and should therefore be reversed. Here again we are unable to agree with appellant’s contention, because we think the two cases are distinguishable on the facts. In the Cassell case at page 287 the court makes clear the basis of its decision where it stated: “Our holding that there was discrimination in selection of the grand jurors in this case, however, is based on another ground. In explaining the fact that no Negroes appeared on the grand jury list, the commissioners said that they knew none available who qualified; at the same time they said they chose jurymen only from those people with whom they were personally acquainted.” The court further said, at page 290, “The statements of the jury commissioners that they chose only whom they knew, and that they knew no eligible Negroes ... is discrimination in violation of petitioner’s constitutional rights.” In the case under consideration no such lack of knowledge is shown.

We have given careful consideration to the other objections, not discussed above, raised by appellant and find no ground for reversal in any of them. Appellant objected to the introduction of photographs which were shown to the jury on a screen but this was a matter which rested largely in the discretion of the trial judge and we find no abuse of that discretion in this case. The same thing can be said in answer to appellant’s objection to the introduction in evidence of certain articles of clothing and the iron rod heretofore mentioned. Appellant stated that he was not allowed a public trial because several Negroes were not allowed to enter the court room. Following an objection by appellant’s attorney in this connection the trial judge stated that he saw no vacant seats and overruled the objection. In the absence of testimony to the contrary we must assume that the trial judge was correct and that he did not' abuse his discretion.

Finding no reversible, error the judgment of the trial court is affirmed.

Affirmed.


source: Caselaw Access Project

author: Sam RobiNsoN, Associate Justice. Paul Ward, Associate Justice

license: Public Domain

text:
    Whaley v. Crutchfield.
    5-1051
    294 S. W. 2d 775
    Opinion delivered November 5, 1956.

      Surrey E. Gilliam and Melvin E. Mayfield, for appellant.

      McKay, Anderson & Crumpler, for appellee.
   Sam RobiNsoN, Associate Justice.

This is an appeal from a judgment in the sum of $1,500 in favor of ap-pellee, Todd Crutchfield, for damages, to an automobile he owned, which occurred in' a collision with an automobile owned and operated by appellant, Charles Whaley. Crutchfield is in the automobile business at Magnolia; at the time of the collision one of his automobiles was being driven by his employee, Grady England. Whaley and England were proceeding in opposite directions. Crutchfield alleges that Whaley negligently cut to the left in front of England, Crutchfield’s employee. Whaley denied the allegations of the complaint and pleaded contributory negligence on the part of England.

Appellant first argues that the trial court erred in giving Instruction No. 1 requested by appellee. The instruction is as follows: “You are instructed that the laws of the State of Arkansas provide that ‘No person shall turn a vehicle from a direct course upon the Highway unless or until such movement can be made with reasonable safety and then only after giving a clearly visible signal of intention to turn continuously during no less than the last 100 feet of travel by the vehicle before turning. Failure to comply with the laws of this State may be considered in connection with all of the other testimony in the case in determining whether or not a party is negligent.”

Appellant says a signal to turn is necessary only in the event another car may be affected. Without a prolonged discussion of this point, suffice it to say that here, another car was affected. Appellant also contends that the last sentence of the instruction assumes there was a failure to give a signal to turn. We think the instruction might be construed by a jury as assuming that the signal was not given; hence, on re-trial, the instruction should be framed so as to eliminate this objectionable feature.

The following is Instruction No. 3, given at the request of appellee: “If you find by a preponderance of the evidence that the defendant was negligent and that said negligence was the sole proximate cause of the collision then you shall return a verdict in favor of the plaintiff as against the defendant.” This is a binding instruction.

Appellant maintains that the instruction is defective in three particulars: First, that it authorizes the jury to find for the plaintiff if the defendant is guilty of any negligence, and does not confine the jury to a consideration of the negligence alleged in the complaint only. Even if the instruction is defective in this respect, it is not inherently erroneous on that account, and no specific objection was made calling the court’s attention to the error now urged in that regard. “A general objection to an instruction not inherently erroneous is insufficient.” Carmichael, Admx. v. Mercury Motors, 224 Ark. 553; 275 S. W. 2d 15. Further, it is claimed that the instruction assumes there was negligence on the part of appellee, but we do not think the instruction is bad in that respect. Nolan v. Haskett, 186 Ark. 455; 53 S. W. 2d 996. As his third proposition, appellant contends the instruction is fatally defective because it is a binding instruction, which tells the jury to find for the appellant on certain conditions, and that it is inher-rently erroneous because it ignores the defense of con-tributary negligence asserted' by -the-appellee. Where an instruction is inherently erroneous and binding, it cannot be cured by a correct instruction. The court said, in Holmes v. Lee, 208 Ark. 114, 184 S. W. 957, “Where an instruction directs the jury to find for the plaintiff if stated conditions concur, but .fails to say that contributory negligence is a defense,.(as to ivhich there is appropriate proof), it is inherently wrong and cannot be cured by correct instructions separately given.” In the case at bar, there was evidence of contributory negligence on the part of England, appellee’s employee. Therefore, the instruction should have included the defense of contributory negligence. Appellee maintains that the instruction is not erroneous because it uses the term “sole proximate cause,” but we see no practical distinction between “the proximate cause” and “the sole proximate cause.”

Over appellant’s objections, appellee was permitted to prove declarations of a third party made at the scene of the collision. After appellant’s objections were overruled, the witness, Grady England, was questioned by ap-pellee ’s attorney with reference to statements made by a third party.

“Q. Now, what did she say?
A. She says, ‘Uncle Charley, I told you that you was going to get in trouble driving like this. You see this man is directly in his lane, and he couldn’t help but hitting you.’
Q. What did Mr. Whaley say ?
A. Now, I don’t remember him saying anything.
Q. As far as you know he didn’t say anything.
A. That’s right.”

The third party declaration was not admissible in evidence ; it was hearsay, and, as such, was not admissible unless the declaration came within one of the exceptions to hearsay rule. If the evidence is admissible, it would be on the theory that it was aii implied admission on the part of appellee. One of the requisites for the admission of declarations of third parties is whether ‘‘ the statement is made under such circumstances and by such persons as naturally call for a reply.” 20 Am. Jur. 480. Here, the person who is alleged to have made the statement is not identified. True, she addressed appellant as “Uncle Charley,” hut for all the record shows, everybody in the community may have called him “Uncle Charley. ’ ’ The appellant had just been in a collision where considerable damage was done; in all probability, he was somewhat excited at the time. Perhaps he knew the woman who is alleged to have made the statement, but, on the other hand, he may not have known her. There is no showing that the woman saw the collision or knew anything about how it occurred. In these circumstances, we do not believe the appellant was called upon to make a reply. “Whether the circumstances are such as to call for a reply is a question for the court.” Pulver v. Union Investment Company, 279 P. 699.

Lastly, there is the contention that the court erred in refusing to permit Whaley to prove the replacement cost of the automobile to Crutchfield in determining the measure of damages. Appellee Crutchfield proved that the retail market value of the car, immediately before the collision, was $3,211, and the value immediately after the collision was $1,001. Appellant Whaley offered to prove that the wholesale cost of the automobile to the ap-pellee was not in excess of $2,409.27, and that the car could be replaced by appellee for that amount. But, the court refused to permit such evidence to go to the jury. The jury were instructed that the measure of damages was the difference between the market value immediately before and immediately after the collision occurred. In the situation presented here, the measure of damages is the difference between what the wholesale price of the car, delivered to appellee, would be immediately before the collision and the market value immediately after the damage occurred. Ordinarily, the measure of damages is the retail market value of the property immediately before the damage occurs, and immediately thereafter. Southern Bus Company v. Simpson, 214 Ark. 323, 215 S. W. 2d 699. But, that rule does not apply where the property involved is part of a stock in trade of a business concern. In Sedgwick on Damages, 9th Edition, Volume 1, § 248a, it is said: “When in the ordinary case a value is to be found for a single thing, the value is what that single thing would sell for; which amounts to the retail value of it. But when a court is dealing with a stock of goods held for sale, or even with a portion of such a stock, the value to be found is its value as a stock or part of a stock of goods, that is, its wholesale value, without the profit of resale which enters into the retail value; for at the time of valuation that profit has not yet been earned, or, to put the matter in another way, the process of distribution, which brings the goods into the hands of the consumer and thus gives them their final increment of value, has not yet taken place.”

And the court said, in John Blaul & Sons v. Wandel, 137 Iowa 301, 114 N. W. 899, “We think the Court also erred in allowing the jury to take into count the retail price of the flour in determining its value. The flour being a merchantable commodity and not having been paid for, defendant could have suffered no damage from the wrongful taking of it save the expense of replacing by the purchase of other flour of the same quality in the quantity taken. He was not entitled to have from the plaintiffs the price for which he might have sold the flour in the ordinary course of business at retail. ’ ’

Our own case of General Fire Extinguisher Company v. Beal-Doyle Dry Goods Company, 110 Ark. 49; 160 S. W. 889, involves the damage to a stock of merchandise. There, the court said: “The market value of the goods to appellee immediately before the injury was what such goods would have cost in the usual markets where same could have been purchased, plus the expense or cost incident to shipping them to appellee’s place of business, and the market value immediately after such goods were damaged was what the goods could have been sold for in the market where the goods were held for sale.” Here, Crutchfield is in the automobile business; the car damaged was a new one which was taken out of stock by Crutchfield’s salesman merely for the purpose of showing it to a prospective purchaser. In these circumstances, the measure of damages is the difference between the wholesale market value of the ear immediately after the collision and the wholesale value, plus delivery charges, immediately before the damage occurred.

We have examined the other points argued by appellant, but find only the errors indicated herein.

Eeversed and remanded.

Ward, J., concurs.

Paul Ward, Associate Justice

(concurring). I agree with the result reached by the majority in reversing this case because I do not think the testimony of G-rady England was admissible in evidence.

However I do disagree with the majority opinion in two respects as set out below.

1. In my opinion Instruction No. 3 given at the request of appellee was not erroneous. My knowledge of the meaning of the English language impels me to conclude that the word “sole” as used in the instruction was sufficient to leave no doubt in the minds of the jury that there could be no other proximate cause than that of the defendant’s negligence, and that consequently it did not ignore the defense of contributory negligence which was adequately set forth in other instructions.

2. In my opinion the instruction on the measure of damages given by the court and set out in the majority opinion is a correct and proper instruction, i. e. the difference between the market value of the automobile immediately before and after the collision occurred. It is conceded that this would have been the proper instruction if the damaged automobile had belonged to a member of the general public rather than to an automobile dealer.

It seems to me that the majority in announcing the rule it did — the difference between the wholesale market value of the ear immediately before and after the collision — failed to take into consideration that the car was not completely destroyed. I concede that where goods, belonging to a retailer, are completely destroyed the measure of damages is as stated by the majority. On the other hand, where such goods are only damaged, the proper rule is the general rule first ¡announced. There are several reasons supporting my contention.

In the first place, the General Fire Extinguisher case [cited by appellant] does not sustain the rule announced by the majority. In that case the court announced the correct rule as to the measure of damages, where goods are injured hut not totally destroyed; as follows: “If you find for the plaintiff you will assess its damages at such sum as you may find from the evidence to be the difference between the market value of the goods injured or damaged . . . immediately before they were damaged and the market value thereof immediately after they were damaged.”

In the second place, it is my contention that the same figure would be arrived at regardless of whether market value or wholesale value is tised. A simple example will suffice to explain. If it costs $100 to replace the fender on an automobile, this figure would be the damage done to the automobile, if a fender is knocked off, regardless of whether the automobile belonged to an individual or a car dealer.

In the third place, it seems to me that the rule announced by the majority would be hard if not impossible to apply. Just what is meant by the wholesale value of a damaged automobile. So far as I know there is no such thing, but if there is then it is obvious that there are only a few people in the State of Arkansas who know what it is and who would be available to testify in an ordinary collision suit.


author: Lee Seamster, Chief Jnstice.

text:
    Hargett v. Hargett.
    5-1038
    295 S. W. 2d 307
    Opinion delivered November 12, 1956.

      Claude F. Cooper and Frank C. Douglas, for appellant.

      Taylor & Sudbury, for appellee.
   Lee Seamster, Chief Jnstice.

This is an appeal by appellant from a decree of the Mississippi Chancery Court, Chickasawba District, which held that “under the said Will of Joseph C. Hargett the said John G. Hargett took a vested remainder in the real property of the said Joseph C. Hargett and not a contingent remainder, as contended by Intervenor; the Court further finds that under said Will of John G. Hargett this vested remainder of John G. Hargett in the real property of Joseph C. Hargett was devised to respondent (appellee) Beulah Joan Hargett.” Intervention of Jesse John Hargett, appellant herein, was dismissed.

The parties stipulated that the sole question before the Court was a question of law, whether John G. Har-gett acquired a vested remainder or a contingent remainder in the lands in question, under the will of Joseph C. Hargett.

The pertinent parts of Joseph C. Hargett’s will are as follows:

“Fourth: To my beloved wife Ellen MeKewon Har-gett I will during her lifetime all my real and personal property wherever found or situated that I may own at the time of my death. I believe in the future of land value in Mississippi County and it is the purpose of this will that neither my wife nor my executrix above named dispose of any of my real estate that I die seized or possessed of during the life of my wife Ellen MeKewon Har-gett. I desire that my wife have the proceeds of said real estate, that she use the same as a home, that she keep up and have paid the yearly payments to the Federal Land Bank and all taxes against said land and that she have, for her own use and enjoyment, the balance of the proceeds of said land. * * *
“It is further provided that at the death of my wife Ellen MeKewon Hargett that the estate then remaining shall be divided between all my children in the manner provided by law, but it is the intention of this Will that none of my children nor their heirs, to-wit: Willie Har-gett who died leaving Bessie Hargett and J. L. Hargett, Jack Hargett, John Hargett, Beatrice Hargett, Lorene Hargett and Belva Hargett, have none of my estate until the death of my said wife, Ellen MeKewon Har-gett, * * *

The appellant, Jesse John Hargett, is a son of John G. Hargett, deceased, who in turn was one of the children of Joseph C. Hargett, deceased. John G. Hargett’s death occurred prior to the death of his mother, Ellen MeKewon Hargett.

John G. Hargett’s last Will and Testament is as follows:

“Know all men by these presents:
“That I, John G. Hargett of Blytheville, Arkansas being of sound and disposing mind and memory and being above the age of twenty-one (21) years do make and publish this my Last Will and Testament hereby revoking all wills by me heretofore made.
“First: I direct that all my just debts and that the legacies hereinafter mentioned he paid out of my estate.
“Second: To my children Jesse John Hargett and Frances Charlene Maynard, I give nothing.
“Third: To my wife, Benlah Joan Hargett, I give all my property, real and personal.
“Fourth: I constitute and appoint my wife, Beulah Joan Hargett sole Executrix of this my will.
“In witness whereof, I have hereunto set my hand this the 12th day of April, 1950 in the presence of F. E. "Warren and R. L. Banister who attest the same at my request.”

It is appellant’s contention that Joseph C. Hargett intended that none of his heirs should take a vested interest in his property at the time of his death, but rather that the heirs should take a contingent interest until the death of his wife, Ellen McKewon Hargett, then the property would go to the living children and to the children of any deceased child at the time of the death of his wife. Therefore, John G-. Hargett died before his mother, and at the time of his death he had no vested interest in the estate of his father which he could give to his wife (appellee) by "Will.

The question of what determines a vested or contingent remainder has been determined by this Court in many cases. In the case of Lawrence v. Lawrence, 225 Ark. 500, 283 S. W. 2d 697, the will provided that “I further direct at the death of my wife that my estate shall pass to my two said children * * * .” The Court held that this language created a vested remainder in the two children. Other cases, in which this Court has held that language in a will similar to the one at bar created a vested remainder are, McCarroll v. Falls, 129 Ark. 245, 195 S. W. 387; Black v. Bailey, 142 Ark. 201, 218 S. W. 210; McKinney v. Dillard and Coffin Co., 170 Ark. 1181, 283 S. W. 16; Greer v. Parker, 209 Ark. 553, 191 S. W. 2d 584; and Timmons v. Clayton, 222 Ark. 327, 259 S. W. 2d 501.

The rule is that an estate will vest at the death of the Testator unless a later time of vesting is clearly expressed by the words of the Will or by necessary implication therefrom. The law favors the vesting of estates as early as possible. Booe v. Vinson, 104 Art. 439, 149 S. W. 524; McCarroll v. Falls, supra.

In the case of Wallace v. Wallace, 179 Ark. 30, 13 S. W. 2d 810, this Court discussed at length the distinction between a vested remainder and a contingent remainder. We said: “There are two kinds of remainders, vested and contingent. Blackstone defines them as follows: ‘Vested remainders (or remainders executed, whereby a present interest passes to the party, though to be enjoyed in the future) are where the estate is invariably fixed, to remain to a determinate person after the particular estate is spent. * * * Contingent or executory remainders (whereby no present interest passes) are where the estate in remainder is limited to take effect, either to a dubious and uncertain person, or upon a dubious and uncertain event.’ 2 Bl. Com. 168.”

The language contained in Joseph C. Hargett’s will merely stated the law as to the rights of life tenants and remaindermen. The will in this case stated how the life tenant was to enjoy the property, and also that the remaindermen were to have none of the property until the death of the life tenant.

A remainder is vested when it is limited to an ascertained person or persons, with no further condition upon the taking effect in possession, than the termination of the prior estate. See 33 Am. Jur., p. 525.

The remaindermen interest, in this case, was ready to take effect immediately upon the death of the life tenant. The designation of the remaindermen was definite and certain. The will of Joseph C. Hargett created a vested remainder interest in the persons named as re-maindermen in his will.

John C. Hargett was one of the remaindermen named in the will of his father. Upon the death of his father his interest was vested and he had a right to dispose of Ms interest as lie saw fit. Under the will of John Gr. Hargett, this vested interest was devised to his wife, Benlah Joan Hargett.

Decree affirmed.


author: J. SeabobN Holt, Associate Jnstice.

text:
    Jarrett v. Jarrett.
    5-1058
    295 S. W. 2d 323
    Opinion delivered November 12, 1956.

      Willis & Walker, for appellant.

      N. J. Henley, for appellee.
   J. SeabobN Holt, Associate Jnstice.

The parties here were married in 1915 and to this nnion eight cMl-dren were horn, seven, having reached their majority, are now living. Angnst 1, 1955, appellee, Mrs. Jarrett, filed suit for divorce alleging indignities and cruel treatment and asked for a property settlement, alimony and attorney’s fees. On a trial a decree of divorce was granted to appellee, a property settlement ordered, along with allowance of alimony and attorney’s fees. A satisfactory adjustment of the personal property appears to have been made, but appellant complains about that part of the decree affecting an eighty acre farm on which the parties resided and had made their home for a great many years. The decree contained this recital: “. . . the court finds and holds that the Plaintiff should be awarded the exclusive possession of the farm land with home thereon described in the pleadings for a period of three years from December 28, 1955, and that during such period of time the Plaintiff shall he required to pay the taxes upon said land. The court finds that the land is not susceptible of division in Mnd without great prejudice to the parties and that same should be sold by the clerk as commissioner of the court on the first Monday of January, 1959 . . . The possession herein awarded to the Plaintiff is upon the condition that she occupies the property as her home, and should she abandon the property as her home prior to the expiration of the three year period the property shall be ordered sold promptly by the court upon appropriate petition and showing of such abandonment . . . The court retains jurisdiction of this cause and the parties for the purposes of effecting a sale of the lands, a division of the proceeds of such sale, and enforcing the property rights and the alimony award.” Appellant says: “There is no dispute that this land was purchased by the husband during coverture and that appellee has her rights of dower and homestead therein and that they are not susceptible of division in kind, etc.,” and further that: “The only point involved in this appeal is whether the lower court erred in postponing the sale of the lands for three years, or was it bound to order an immediate sale under § 34-1214, Arkansas Statutes.”

We hold that the court did not err in postponing the sale for three years, as indicated. Our rule is well established, through a long line of our cases, that courts, when granting decrees of divorce, may award possession of the homestead to either of the parties for such time and upon such conditions as appear to be equitable. We said in Biddle v. Biddle, 206 Ark. 623, 177 S. W. 2d 32, “An examination of our own cases clearly discloses that courts granting decrees of divorce may award the possession of the homestead to either of the parties for such time and upon such terms and conditions as appear to be equitable and just. Such is the effect of our decisions in the eases of Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. 2d 21; Watson v. Poindexter, 176 Ark. 1065, 5 S. W. 2d 299; Woodall v. Woodall, 144 Ark. 159, 221 S. W. 463; Johnson v. Commonwealth Bldg. & Loan Ass’n, 182 Ark. 226, 31 S. W. 2d 136; Wilkerson v. Hoover, 192 Ark. 337, 91 S. W. 2d 274.”

Finding no error, the decree is affirmed.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Boswell v. Gillett.
    5-940
    295 S. W. 2d 758
    Opinion delivered November 12, 1956.
    [Rehearing denied December 17, 1956.]

      Williams & Gardner and J. M. Smallwood, for appellant.

      Robert J. White, for appellee.
   Ed. F. McFaddiN, Associate Justice.

Each of the three litigants was dissatisfied with the Chancery decree, so we have both direct appeals and cross-appeals; and for easy identification we will refer to the parties by name rather than by legal designation.

For some time prior to 1946 Mrs. Mattie Boswell owned a building in Russellville in which the Maleo Thea-tres, Inc. operated a picture show. Mrs. Boswell was an elderly lady and depended on her son, Cledys Boswell, for advice in business matters. E. R. Gillett, of Memphis, Tennessee, was the owner of a number of picture shows, and he desired to dispossess Maleo Theatres, Inc. and operate a picture show under his own control in the said Boswell building.

On January 7, 1946, E. R. Gillett, as first party, and Cledys Boswell, as second party, entered into a memorandum agreement (approved and signed by Mrs. Mattie Boswell), which provided, inter alia-, (a) that proceedings would be prosecuted to evict Maleo Theatres, Inc., from Mrs. Boswell’s building, and all expenses of such litigation would be paid by Gillett; (b) that when possession of the building had been obtained, Gillett and Cledys Boswell would then rent the building from Mrs. Boswell at $150 per month and Gillett and Cledys Boswell would operate a picture show in the building with Cledys Boswell as manager at a salary of $50 per week; (c) that E. R. Gillett would furnish all money for equipping and furnishing the picture show and would provide funds for the said Gillett-Boswell enterprise.

The Maleo Theatres, Inc. was finally ousted from the Boswell Building (see Malco Theatres, Inc. v. Boswell, 211 Ark. 143, 199 S. W. 2d 606); and in May, 1947 Mrs. Mattie Boswell executed a contract to E. R. Gillett and Cledys Boswell, which, inter alia, leased them the building for five years at a rental of $150 per month. Also in May, 1947, E. R. Gillett and Cledys Boswell entered into a “partnership agreement” for the operation of the picture show in the Boswell building, which partnership agreement incorporated in it the memorandum agreement between the parties, as previously mentioned.

The Gillett-Boswell enterprise named its theater the “Main Theater” and began operations in May, 1947, and continued operations until December 27, 1948, when a fire in the projection room damaged the projection equipment and screen and also caused slight damage to the building. Being unable to contact Gillett by phone to tell him of the fire, Cledys Boswell wrote Gillett a letter under date of December 28, 1948, informing him of the fire and asking instructions. Receiving no reply from that letter, Cledys Boswell wrote Gillett another letter under date of March 4, 1949, again asking instructions. No reply was made by Gillett to either letter because there had been a “falling out” between Gillett and Boswell in July, 1948, as will be mentioned later. Gillett continued to pay Mrs. Boswell her rent at $150 per month from January, 1949 until April 30, 1952, which was the end of the five-year lease term. The equipment of the Main Theater continued in Mrs. Boswell’s building until April 28,. 1955, but she received no rent for the building after April 30, 1952.

The. Main Theater never resumed operations after the fire of December, 1948; and on August 3, 1950, Gil-lett filed the present suit against Mrs. Mattie Boswell and Cledys Boswell, alleging, inter alia: (a) that the failure of the picture show to operate after the fire was due to Cledys Boswell; and that Mrs. Mattie Boswell’s lease on the picture show should be extended from the date of the final decision in this case for a period of time equal to the time from the fire to the final decision and should be held to be assignable. As against Cledys Boswell, Gillett also prayed that the Gillett-Boswell partnership be dissolved, that the lease and all equipment be sold and an accounting made, and that Cledys Boswell be liable for one-half of the losses of the partnership. Mrs. Boswell, by answer and cross-complaint, sought rent at $150 per month for all the months from May 1, 1952. Cledys Boswell, by answer and cross-complaint, denied any liability for any loss suffered by Gillett and sought judgment for salary as manager at $50 a week from December, 1948 (the date of the fire) until final adjudication of the case. For a variety of reasons best known to the litigants, the case dragged in court for several years and it was not until August 11, 1955, that a decree was entered in the Chancery Court. As aforesaid, all parties have appealed; and we now discuss the main phases of the case.

I. The Controversy Between Mrs. Mattie Boswell And Gillett. By amendment filed in January, 1951, Gil-lett alleged that Mrs. Boswell had refused to agree to any assignment of the lease contract because she was under the influence of her son, Cledys Boswell. By amendment filed in October, 1952, Gillett said that he had been “. . . required to pay under said lease the monthly rentals to and including the date of expiration thereof . . . ”; and prayed “. . . judgment be entered in favor of the plaintiff as the equities therein shall determine.”

The Chancery Court found that Gillett had paid Mrs. Boswell the rent of $150 per month from January 1, 1949 to April 30, 1952 (the expiration of the five-year term); that the building had not been repaired; that in its damaged condition the building was worth only $100 per month for such time; and that Gillett should, therefore, recover $50 per month from Mrs. Boswell for the forty months from January, 1949 through April, 1952, during which time he had paid her rent at $150 a month. Accordingly, the Chancery Court rendered judgment against Mrs. Boswell in favor of Gillett for $2,000. Mrs. Boswell has appealed on that item and also on the failure of the Court to award her judgment against Gillett for rent from May 1,1952 (the end of the five-year contract period), until April 28, 1955, when the building was vacated by removal of the picture show equipment. Gillett l^as cross-appealed because the Court only allowed him a return of $50 per month instead of $75 per month for the forty months that he paid the rent, his theory being that Mrs. Boswell knew that he was a partner with Cledys Boswell, and, as such partner, he should only pay half of the rent. It is Gillett’s contention that, because of the relationship between Mrs. Boswell and her son, Cledys Boswell, she was at all times in the same situation as Cledys Boswell and liable for failure to allow the lease to be assigned.

We find no merit in any of Gillett’s claims against Mrs. Mattie Boswell. The record reflects that he knew of the close relationship between Mrs. Boswell and her son and used that relationship as a leverage to dispossess Maleo Theatres, Inc. from the building: he promised Cledys Boswell a salary of $50.00 per week so that Cledys Boswell would persuade his mother to dispossess Maleo and to rent the building to the Gillett-Boswell enterprise. There was no obligation on the part of Mrs. Boswell to permit the Gillett and Cledys Boswell enterprise to assign the lease. Gillett recognized her right to refuse assignment, and month by month sent her his personal checks to pay the rent; so he cannot claim that she denied him any of his contract rights.

There are several reasons why the Trial Conrt was in error in holding that Mrs. Boswell should return to Gillett any of the money that he had paid her for the rent from January 1,1949 to April 30, 1952: but one reason is sufficient to state. Gillett had voluntarily paid Mrs. Boswell the rent during all of these forty months. He testified: “Q. What was your intention after you got this report of the condition of the building? A. I had no intention of doing anything but to pay this $150 a month.” Elsewhere, he said that with the theatre not running he was losing only $150 per month (i. e., the rent), whereas, if the theatre had been operating, he would have lost $1,000 a month. Thus, Gillett voluntarily paid Mrs. Boswell the rent each month; and one who voluntarily makes payments without mistake of fact dr fraud, duress, coercion or extortion, cannot recover them. Ritchie v. Bluff City Lbr. Co., 86 Ark. 175, 110 S. W. 591; North Cross v. Miller, 184 Ark. 463, 43 S. W. 2d 734. See Annotation in 53 A. L. R. 949 on the subject: “Right to Recover Money Voluntarily Paid . . .’’etc.

Gillett claims that Mrs. Boswell did not repair the theatre building after the fire and, therefore, that she should not be allowed to collect the full rent. But Gil-lett knew of the damage when he was paying the rent each month and he made no claim that the building should be repaired. Furthermore, the damage to the building was slight. Gillett could have had the repairs made if he so desired and could have claimed the expense of such repairs against Mrs. Boswell. Such would have been his measure of damages. See Young v. Berman, 96 Ark. 78, 131 S. W. 62; Johnson v. Inman, 134 Ark. 345, 203 S. W. 836; and Dugan v. Browne, 187 Ark. 12, 58 S. W. 2d 426. Gillett never claimed any forfeiture of the lease because of Mrs. Boswell’s failure to repair. Since he voluntarily paid the rent each month, he should not be allowed to recover any part of such payments.

From May 1, 1952 until the building was vacated on April 28, 1955, the Trial Court refused to allow Mrs. Boswell any recovery for rent against Gillett. Instead, the Trial Court gave her judgment against Cledys Boswell only. We hold that Mrs. Boswell was entitled to judgment against Gillett individually for $75 per month — one-half of the rental value — for such period of time; and was also entitled to judgment against Cledys Boswell individually for $75 per month — the other half of the rental value — for such period of time.

So, as between Mrs. Mattie Boswell’s estate and Gil-lett, we reverse and set aside the $2,000 judgment that the Trial Court awarded Gillett against her; and we remand the case to the Chancery Court with directions to enter judgment for Mrs. Boswell’s estate against Gil-lett individually for $2,700, being calculated at $75 per month from May 1, 1952 until April 28, 1955; and also with directions to render judgment in favor of Mrs. Boswell’s estate against Cledys Boswell for a like sum of $2,700, being the other half of the rent from May 1, 1952 until April 28, 1955. The estate of Mrs. Mattie Boswell will also recover all costs paid by Mrs. Boswell or her estate in all courts.

II. The Controversy Between Gillett And Cledys Boswell. The Chancery Court found and decreed: (a) that Cledys Boswell and Gillett were never partners in the Gillett-Boswell enterprise; (b) that Cledys Boswell should pay into the Registry of the Court the sum of $755.30 received on fire insurance policies for the damage to the projection room and equipment and held by him in a separate account; (c) that Cledys Boswell was entitled to judgment against Gillett for $1,000 for salary of $50 per week for only five months from the time of the fire; (d) that Gillett should receive all of the $7,000 from the sale of the picture show furnishings and equipment which had been sold by consent of all litigants in April, 1955, and paid into the Begistry of the Court; and (e) that each party (Gillett and Cledys Boswell) should pay his own costs.

Gillett and Cledys Boswell have each appealed. Gil-lett insists: (a) that he and Cledys Boswell were partners; (b) that an accounting would show that Gillett lost approximately $24,000 net in the Boswell-Gillett venture, even after deducting the $7,000 received from the equipment; (c) that Gillett should have judgment against Cledys Boswell individually for one-half of the said loss, or a net judgment of approximately $11,700; and (d) that Gillett should have judgment against Cledys Boswell for damages at $500 per month from the time of the fire until the end of the lease since Cledys Boswell persuaded Mrs. Mattie Boswell to refuse her consent to the lease assignment. Cledys Boswell claims: (a) that he is entitled to a salary of $50 per week from the fire until possession of the building was returned to Mrs. Boswell in April, 1955; (b) that Gillett, instead of Cledys Boswell, was liable for the rent from May 1, 1952 to April 28, 1955;. and (c) that Cledys Boswell should recover his costs.

A. As To The Partnership Questions. The Chancery Court held that there never was a partnership between Gillett and Cledys Boswell; that there was merely an employment contract, even though the instrument was designated as a partnership agreement. Gillett insists that the Chancery holding was erroneous.

As aforesaid, in May, 1947, E. B. Gillett and Cledys Boswell signed a 3-page instrument designated as a “Partnership Agreement.” By reference, it incorporated in it the memorandum agreement between the parties of January 7, 1946, wherein Gillett agreed to install “. . . sufficient equipment in said building to operate a first class picture show at his own expense . . .” Cledys Boswell signed various papers designating the Main Theater to he a partnership between himself and Grillett: so certainly as regards third persons there was a partnership created to operate the Main Theater.

But as between the parties — Grillett and Cledys Boswell — was there a partnership inter se? We think the answer to this question makes very little difference in the final result in this case because, even if there was a partnership inter se, still Gillett cannot recover from Cledys Boswell any amount that Gillett lost on the furniture and fixtures in the theater. The reason that Gillett is not entitled to judgment against Cledys Boswell, as in ordinary partnership cases inter se, is because the losses that Gillett claims in this case came about through Gil-lett’s own wrong and in breach of the partnership relationship. In 47 C. J. 792, in discussing losses through the negligence or misconduct of a partner, cases from many states are cited to support the text: “But losses caused by the acts of a partner which amount to a breach of a partnership stipulation ... or which are characterized by bad faith toward them (co-partners), must be borne by him alone.” And again in 47 C. J. 1172, cases are cited to sustain this rule: “Losses due to a partner’s breach of the partnership contract, . . . are to be borne by him exclusively.” To the same effect, see 68 C. J. S. 538 and 68 C. J. S. 903, where other and more recent cases are cited to sustain the rule just quoted. A partnership is a relationship of trust and confidence and partners must observe the utmost good faith toward each other in all of their transactions from the time they begin negotiations with each other to the complete settlement of the partnership affairs. (See Gilmore on “Partnership,” page 374).

And when a partner — such as Gillett in the case at bar — comes into a court of equity and seeks to recover judgment for losses, such partner must come in with clean hands and certainly cannot recover for losses caused by himself in breach of his duty and obligations as a partner. See Annotation 4 A. L. it. 83 discussing partnership cases. The evidence here shows that early in April, 1948 Gillett formed the plan to oust Cledys Boswell from the management of the picture show. Gillett had used Boswell to get the rent contract but Gillett decided to oust Cledys Boswell entirely. When the furniture and fixture notes were paid, Gillett had them assigned to a man named McFarland, who took orders from Gillett. Without any information from Gillett to Cledys Boswell (who had been using the proceeds of the picture show to pay on the notes), McFarland went to Russellville and informed Cledys Boswell that he (McFarland) owned the Main Theater and had bought everything from Gillett.

When Cledys Boswell refused to surrender his managership to McFarland, Gillett went to Russellville and sought to compel Cledys Boswell and his mother to agree to the assignment of the lease and the sale of the Main Theater. When Cledys Boswell refused, Gillett left the meeting and never spoke to Cledys Boswell again; and that is the reason that Cledys Boswell could get no response from Gillett after the fire in December, 1948. Furthermore, it is shown that the theatre could have been put back in operation within twenty days; but Gil-lett would never authorize any repairs to be made. Instead, he did just as he testified as heretofore quoted: “I had no intention of doing anything but to pay this $150 a month (rent).”

Were the actions of Gillett in these matters the actions of a partner toward a partner? Did he not breach the entire partnership contract — assuming it was a partnership inter se — when he assigned all the papers over to McFarland and tried to dispossess Boswell? The partnership agreement provided how Gillett could have effected a sale of his interest in the business : that is, by-giving Cledys Boswell the first right to acquire it. Gil-lett did not do that for the obvious reason that the sale of the partnership would not have carried with it the lease on the building and he could not compel Mrs. Boswell to agree to an assignment of the lease on the building. So Gillett violated the fiduciary relationship that should have existed between partners in order to try to “strong arm” Cledys Boswell and Mrs. Boswell into letting him have the building. The losses that Gillett suffered on his equipment came about through his own conduct and breach of the partnership contract; so he cannot recover a judgment against Cledys Boswell even if he were a partner inter se-, and that part of the Chancellor’s decree reached the correct result and is affirmed.

What we have just expressed, likewise disposes of Gillett’s claim for damages against Cledys Boswell for $500 a month for his failure to persuade Mrs. Boswell to agree to the assignment of the lease contract.

B. Cledys Boswell’s Claim For Salary. The Chancery Court allowed Cledys Boswell judgment against Gil-lett for $1,000 for salary as manager for twenty weeks after the fire. Gillett claims that Boswell was entitled to no salary after the fire; and Boswell claims that he was entitled to salary up to the final determination of the case. We cannot say that the Chancery Court was in error in the judgment that it rendered on this angle of the case. Just because Gillett did not agree to continuation of the picture show after the fire was no reason why Cledys Boswell should sit still and do nothing. "Within twenty weeks after the fire, Boswell certainly knew that he could get nowhere in his dealings with Gillett; and we think the Court allowed Boswell his salary for a reasonable time. Gillett certainly cannot complain of this salary allowance for twenty weeks, in view of all that we have heretofore said. Therefore, on this angle of the case, we affirm the decree of the Chancery Court.

C. As To The Costs Between Cledys Boswell And Gillett. The Chancery Court decreed that each of these parties should pay his own costs. We cannot tell from this record who was at fault in delaying this case so long. The Chancellor was in a better position to judge the determination of the costs than we are; and so we affirm the Chancery ruling as to costs between Cledys Boswell and Gillett, but with Mrs. Boswell’s estate recovering all of her costs from Gillett.

The result is that the Chancery decree is affirmed in part and reversed in part; and the cause is remanded to the Chancery Court to enter a decree not inconsistent with this opinion.

Justices Holt and Millwee dissent,.

       This is the salient language of the contract: “. . . (e) The party of the first part (Gillett) contemplates the investment of and installation of sufficient equipment in said building to operate a first class picture show at his own expense; for that purpose he agrees when possession of said building is obtained, to deposit such funds as may be necessary to equip and operate said picture show, and such deposit shall be in a joint account, and all funds derived from the operation of said picture show business shall be deposited by the party of the second part (Cledys Boswell) in such joint account, (f) After said picture business is in operation, and a surplus is accumulated from its operation and deposited in said joint fund, the party of the first part shall have the right to withdraw from said surplus, as his needs may require, and at such times as he may desire, the funds advanced by him until he has been entirely repaid for all funds advanced by him; provided, however, that at no time shall the surplus funds be reduced below $1000.00 for necessary operating expenses.”

       The lease contract of 1947 — in which Mrs. Boswell was first party and Cledys Boswell and Gillett were second parties — contained this language: “It is further agreed and understood by and between the parties hereto that the parties of the second part, nor either of them, their administrators, successors or assigns, may assign or sublease the premises herein or any part thereof, during the term herein specified or any extension thereof, unless such assignment or subleasing is agreed to by the party of the first part, her administrators, successors or assigns, in writing endorsed hereon.”

       During the pendency of this case in the Supreme Court, and after the filing of her brief herein, Mrs. Boswell departed this life intestate. The administrators of her estate have been duly substituted, so the judgment herein for her is for the administrators of her estate.

         The “partnership agreement” of May, 1947 contained these additional salient provisions: “The said E. R. Gillett having advanced the necessary funds to finance both the litigation incident to obtaining possession of the building in which said Main Theater is installed, as well as the funds necessary for the alterations and improvements made in connection therewith, it is agreed and understood that out of the surplus accumulated in the above joint account he shall have the right to withdraw from time to time such sums as can be spared from said account until all the funds advanced by him have been repaid in full. Provided: that there shall be kept in said account the sum of at least One Thousand ($1000.00) Dollars to meet the rents and other current expenses incident to the operation of said theater . . . As soon as all the funds that have been advanced by the said E. R. Gillett have been fully repaid to him, then it is understood and agreed that the said E. R. Gillett and the said Cledys Boswell are thereafter to be the joint and equal owners of all the improvements made to the building in which said Main Theater is being operated, and the joint and equal owners of all the net profits derived from the operation of said theater . ..”

       The “partnership agreement” said: “It is mutually agreed and understood by and between the parties hereto that the agreements herein contained shall be binding upon each of said parties, their heirs, executors, administrators or assigns, so long as they desire to continue in the operation of said picture business. Provided that either of said parties may sell or dispose of his interest in said business, but should either desire to sell or dispose of his interest in said business, he shall give the other party the first right to acquire said interest at a price offered by any other bona fide purchaser. If the other party does not desire to purchase such interest, then he may sell to any other party agreeable to the remaining party to this agreement.”


author: Motor W. Millwee, Associate Justice.

text:
    Dockery v. Thomas.
    5-1065
    295 S. W. 2d 319
    Opinion delivered November 12, 1956.

      J. B. Reed, for appellant.

      Talley & Owen and Dale. Price, for appellee.
   Motor W. Millwee, Associate Justice.

The question is whether appellee, William Earl Thomas, was engaged in an “employment” in “agricultural farm labor” at the time of his injury and, therefore, excluded from the benefits of the Workmen’s Compensation Law. Sec. 2 C (1) of the Act (Ark. Stats., Sec. 81-1302 C (1)) provides in part: “Employment means: Every employment carried on in the State in which five (5) or more employees are regularly employed by the same employer in the course of business or businesses, except domestic service, agricultural farm labor , . . ”

The facts are not in dispute. Appellee lives in Arkansas and is a licensed airplane pilot with long experience in the highly specialized activity of dusting or spraying crops by plane. Appellant, J. 0. Dockery, is a resident of Stuttgart, Arkansas, where he owns and operates the J. O. Dockery Flying Service. In the operation of his business, appellant owns a fleet of planes which are used primarily in dusting or spraying crops all over the United States and are piloted by his employees on a percentage or commission basis.

In the Spring of 1954 appellant established a flying base at Clarksdale, Mississippi, near an area in which crops were plagued with an infestation of army worms. Appellee was then, employed as one of appellant’s “duster pilots.” On May 3, 1954, he was engaged in dusting an oat field belonging to one of the appellant’s farmer-customers when the plane crashed and he received injuries for which he filed a claim for compensation before the Arkansas Workmen’s Compensation Commission. A single commissioner and the full commission denied the claim on the ground that appellee was engaged in an employment in which he was performing ‘ ‘ agricultural farm labor,” within the meaning of the statute, at the time of his injury. On appeal to circuit court the order of the full commission was reversed. The court held appellee was not engaged in agricultural farm labor so as to exclude him from the benefits of the Compensation Act, and that the employment was covered by it.

Because of the difference in phraseology of workmen’s compensation statutes and the varied local conditions and types of work respecting farming, no hard and fast rule can be laid down defining what particular kinds of work are within or without the several statutes. As the annotator points out in 35 A. L. R. 208: ‘ ‘ The most that can be said is that an employee doing work for a farmer which is ordinarily incidental to farming as that occupation is generally understood is within the purview of the exclusion of farm laborers, unless, at the time of the injury, he was employed by a commercial concern under a contract to perform work for the farmer; while the doing of work not inherently farm work is not farm labor, though incidentally it may be at the instance of one actually engaged in farming.”

In determining whether an employment is excluded from the provisions of the workmen’s compensation statutes as “agricultural farm labor,” or some similarly designated agricultural pursuit, the courts have used different tests. “In some cases, the character of an employment as agricultural, within the operation of the provision in question, has been determined by reference to the employment or industry as a whole, rather than by reference to the immediate or particular task or operation. In other cases, the character of the work actually performed by tbe employee, and not tbe general occupation or purposes of tbe employer, bas been made tbe test. Employees of independent contractors for tbe performance of work incident to farming operations have in many instances been beld not to fall within tbe exception as to farm labor.” 58 Am. Jur., Workmen’s Compensation, Sec. 97. See also Larson, Workmen’s Compensation Law, Sec. 53.33. It bas also been beld that in determining whether a claimant was employed in an agricultural pursuit at tbe time of an injury tbe Workmen’s Compensation Act and all proceedings under it must be liberally construed with a view to effect tbe object of tbe law and to promote justice. Mundell v. Swedlund, 59 Idaho 29, 80 P. 2d 13.

In tbe two cases construing our exemption clause as to farm labor this court bas apparently placed greater emphasis upon tbe nature and character of tbe employer’s business than tbe character of tbe particular task performed by tbe employee at tbe time of injury. In Gwin v. J. W. Vestal & Sons, 205 Ark. 742, 170 S. W. 2d 598, a divided court beld that a nightwatchman employed by a nursery to patrol and keep a constant temperature in tbe greenhouses was engaged in “agricultural farm labor” within tbe meaning of tbe Act. It was pointed out that claimant’s employment was a necessary one in tbe employer’s business of “floriculture or horticulture, which are embraced in tbe term agriculture.” In Great American Indemnity Co. v. Bailey, 221 Ark. 469, 254 S. W. 2d 322, tbe claimant was employed by an incorporated cleaning establishment to look after horses, do other labor on a farm owned by tbe company and to work in tbe cleaning plant during rush hours. In bolding that claimant was entitled to compensation benefits for injuries sustained in a fall from a tree while working at the farm, and that be was not an agricultural farm laborer within tbe meaning of tbe statute, tbe majority again stressed tbe character of tbe employer’s business and tbe fact that tbe farm was maintained by tbe corporation for advertising purposes.

Although no case exactly in point with tbe facts here bas been cited there are several decisions which involve somewhat analogous situations. In Maryland Casualty Co. v. Dobbs, 128 Tex. 547, 100 S. W. 2d 349, the court held that one who was employed by an independent contractor engaged in the business of spraying citrus trees, but who had nothing else to do with the planting and growing of the trees, was not a “farm laborer” within the exemption clause of the Compensation Act. The court said such employee was too far removed from the tilling of the soil and the cultivation of trees to be a farm laborer within the meaning of the statute. The exemption has been denied in cases where the claimant was an employee of a farmer who engaged in threshing as a business and was injured while going about with the threshing machine. Skreen v. Rauk, 224 Minn. 96, 27 N. W. 2d 869. The same result was reached where a farmer ground grain for himself and others and the employee claimant was injured while operating the grinder. Hamilla v. Gade, 278 N. Y. 502, 15 N. E. 2d 438. Other cases to the same effect are: In Re Boyer, 65 Ind. App. 408, 117 N. E. 507; Roush v. Heffelbower, 225 Mich. 664, 196 N. W. 185; Industrial Commission v. Shadowen, 68 Col. 69, 187 P. 926; Oliver v. Ernst, 148 Neb. 465, 27 N. W. 2d 622.

In the Roush case, supra, the court said: “We think that the legislature must have considered a farm laborer as one who is employed to do ordinary farm work, and not one engaged in the special business of going from farm to farm to thresh grain and husk corn with machinery not ordinarily used by farmers.” See also, Britton v. Industrial Comm., 248 Wis. 549, 22 N. W. 2d 525, where a crop duster employed by an uninsured airport operator was held entitled to recover compensation benefits from his employer but not from a canning company which entered into a contract with the airport operator to dust crops of farmers who had contracts with the canning company.

The employer-appellant is not a farmer but is an independent contractor engaged in the highly specialized and hazardous business of spraying and dusting crops and other vegetation by plane. Appellee is a licensed commercial flyer with long experience as a “duster pilot,” an ocenpation that could scarcely he classified as ordinary farm work. A direction for the performance of snch a task by the ordinary agricultural laborer would doubtless come as a distinct shock. The fact that appellant’s chief customer is the farmer upon whose farm the work is usually performed does not make the employment “agricultural farm labor” within the meaning of our statute. A different result might follow if appellee had been employed by the farmer who owned his own plane. The circuit court correctly determined that appellee was not engaged in an employment in ‘ ‘ agricultural farm labor” at the time of his injury, and the judgment is affirmed.

       Contra: Cook v. Massey, 38 Idaho 264, 220 P. 1088, 35 A. L. R. 200.


author: Minor W. Mulwbe, Associate Justice.

text:
    White v. Avery.
    5-1173
    295 S. W. 2d 365
    Opinion delivered November 12, 1956.

      S. E. Gilliam and Melvin E. Mayfield, for appellant.

      G. E. Snuggs, for appellee.
   Minor W. Mulwbe, Associate Justice.

In advance of a submission of this case for a decision on its merits, appellees have filed a motion for a rule on the clerk to require him to docket and file their cross-appeal.

Section 2 of Act 555 of 1953 (Ark. Stats., Sec. 27-2106.1) provides that any party to an action may appeal by filing a notice of appeal within thirty days from the entry of the judgment or decree. In General Box Co. v. Scurlock, Comm. of Rev., 223 Ark. 967, 271 S. W. 2d 40, we held that the filing of a notice of appeal within the thirty days is a jurisdictional prerequisite to' the perfection of a cross-appeal.

The question here is: If the last day of the thirty-day period for filing the notice of appeal falls on Sunday, may a party file the notice on the following Monday?

In McNutt v. State, 163 Ark. 122, 258 S. W. 1, this court had under consideration Ark. Stats., Sec. 43-2732, which provides that the transcript on appeal in misdemeanor cases may be lodged in this court within sixty days after the judgment. The court held that, in order to facilitate and not impede the constitutional right of appeal, a liberal rather than a rigorous rule should be applied by allowing the transcript to be filed on the following Monday when the last of the sixty days falls on Sunday. Speaking for the majority, Judge Hart said: “The Legislature will be presumed to have considered that Sunday is dies non in regard to judicial proceedings, and, in fixing a short time for appealing, to have considered that, in the computation of the time when the last day for filing the transcript falls on Sunday, it may be done on the next day. Some courts have expressly held that whenever, by rule of the court or an act of the Legislature, a given number of days is allowed to do an act, or it is said that an act may be done within a given number of days, the day in which the rule is taken or the decision is made is excluded, and if one or more Sundays occur within the time, they are counted, unless the last day falls on Sunday, in which case the act may be done on the next day. (Citing cases).”

A different conclusion was reached in Clark v. American Exchange Trust Co., 189 Ark. 717, 74 S. W. 2d 974, where the statute in question provided a period of six months for lodging appeals in this court. In dismissing the appeal as filed too late where it was lodged on Monday following the last day of the six-months period, which fell on Sunday, the majority said: “The view here expressed does not conflict with the opinion of this court in McNutt v. State, 163 Ark. 122, 258 S. W. 1. In the case last cited we were dealing with a statute which required an act to be done within a certain number of days, whereas the statute here under consideration requires the act to be done within a certain number of months, and this marks the difference in construction and interpretation as determined by practically all, if not all, the courts.”

We are convinced of the soundness and justice of the rule announced in McNutt v. State, supra, as applied to the facts in the instant case. To require the notice of appeal to be filed on Saturday preceding the last day of the thirty-day period when that day falls on Sunday would be tantamount to requiring the notice to be filed within 29 days instead of thirty days as specified in the statute. Hence we conclude that the legislative intent was to exclude Sunday when the last day of the period fell on that day and to allow the notice to be filed the following Monday.

The clerk is, therefore, directed to file and docket ap-pellees ’ cross-appeal. Appellants’ motion to dismiss the cross-appeal on another ground is passed until the case is heard.on its merits.


author: George Bose Smith, J.

text:
    Coca-Cola Bottling Company of Southeast Arkansas v. Jones.
    5-1027
    295 S. W. 2d 321
    Opinion delivered November 12, 1956.

      Thomas E. Sparks, for appellant.

      Arvin A. Boss, John B. Wood, L. Weems Trussell and Nona L. Trussell, for appellee.
   George Bose Smith, J.

This is an action by the ap-pellee, who operates a small grocery at Dalark, to recover for personal injuries sustained when a bottle of Coca-Cola exploded just after he had placed it in an electric cooler. The jury fixed the plaintiff’s damages at $4,500. It is contended by the appellant that the court erred in its instructions to the jury and that the verdict is excessive.

In defining the doctrine of res ipsa loquitur the court below gave verbatim the charge that was quoted as Instruction No. 3 in the opinion in Coca-Cola Bottling Co. of Helena v. Mattice, 219 Ark. 428, 243 S. W. 2d 15, 29 A. L. R. 2d 1379. This instruction tells the jury that the happening of the explosion is prima facie evidence of negligence ‘ ‘ and shifts to the defendant the burden of proving that it was not caused by the negligence of the defendant.” Although the instruction was approved in the Mattice case the appellant insists that the court’s language was dictum and should be overruled.

Our former approval of this instruction was not mere dictum. The Mattice case was being remanded for a new trial on account of an error in another instruction, and it was therefore necessary to determine whether Instruction No. 3 might properly be given upon a retrial. It was contended there, as it is here, that the jury should be told in so many words that the plaintiff’s evidence shifts to the defendant only the burden of going forward with the evidence, as distinguished from the burden of proof in the whole case. We examined this issue in detail and, adhering to our prior decisions, held that the instruction in question does not cast on the defendant the burden of proving its freedom from negligence by a preponderance of all the evidence. We still consider that conclusion to. be correct.

The appellant made a general objection to the trial court’s instruction on the measure of damages. It is now insisted that the charge is inherently erroneous in permitting the plaintiff to recover “the damages which he may have sustained on account of the loss of net remuneration or earnings from his business . . .” The appellant argues that net remuneration must be taken to mean net profits; authority is then cited to show that lost profits are often not recoverable in personal injury cases.

We do not find the instruction to be inherently wrong, either upon this ground or upon two lesser grounds that are suggested in the appellant’s brief. The plaintiff, who owned and conducted his own business, was incapacitated for several weeks by his injuries. His absence from the grocery store involved a financial loss that the jury were entitled to consider. Various phrases have been used to describe the compensable loss sustained when a self-employed person is disabled. We have said that “profits derived from the management of a business may properly be considered as measuring the earning power. This is especially true where the business is one which requires and receives the personal attention and labor of the owner.” St. Louis, I. M. & S. Ry. Co. v. Eichelman, 118 Ark. 36, 175 S. W. 388. Much to the same effect is the statement that the damages are to be measured by the value of the proprietor’s services during the period of his injury. Rest., Torts, § 924, Comment c; see also Damages 1935-1947, 61 Harv. L. Rev. 113, 164. In the case at bar the plaintiff did not attempt to prove a loss of profits in dollars and cents; lie merely established the length of time that he was kept away from his business. If the defendant believed that this element of damage could have been more accurately expressed by some language other than the court’s reference to the loss of net remuneration or earnings from the business, the improved wording should have been offered in the form of a specific objection to the charge.

The amount of the award is not demonstrably excessive. The explosion threw shattered glass into the plaintiff’s face and almost destroyed the sight of his left eye. He was confined to a hospital for five days and to his bed at home for another three weeks. The injury required a dozen trips to Little Rock for treatment and the wearing of a bandage for two months. At the time of the trial the plaintiff still suffered pain in the afflicted eye. An ophthalmologist testified that the vision in that eye is 20/260, which means that the appellee can see at a distance of 20 feet only what a person of normal vision can see at 260 feet. This physician says that the impairment is permanent and cannot be corrected by the use of glasses. In these circumstances an award of $4,500 is not unduly liberal.

Affirmed.


author: George Rose Smith, J.

text:
    Lipscomb v. Lipscomb.
    5-1080
    295 S. W. 2d 335
    Opinion delivered November 12, 1956.

      Coleman & Mayes and Barber, Henry & Thurman, for appellant.

      Cecil Grooms, for appellee.
   George Rose Smith, J.

In the conrt below the ap-pellee was granted a divorce from her hnsband npon the ground of personal indignities. The decisive question presented by the appeal is whether the plaintiff’s proof is sufficient to establish her canse of action.

The couple were married in 1936 and lived together until July of 1955. They have no children. There is no reason to believe that Mrs. Lipscomb ever gave serious consideration to the institution of a suit for divorce during the nineteen years that she lived with her husband. In her testimony, which is corroborated only sketchily, Mrs. Lipscomb describes a few quarrels of the kind that not infrequently occur between husbands and wives. There is no suggestion of physical violence on the part of Lipscomb, who seems at the worst to have been somewhat sullen on a number of occasions. Lipscomb earned a substantial income as a public accountant and provided a good home for his wife in Paragould. He also maintains a home for her parents in Little Rock, on which they make only the mortgage payments. It is evident that Mrs. Lipscomb is of nervous temperament; she suffered a mental breakdown in 1953 and was confined to the State Hospital for several months. This affliction, however, is not shown to have been the result of marital difficulties; rather, it seems to be a family weakness, as Mrs. Lipscomb’s sister and younger brother have had similar experiences.

The parties’ separation came about as the result of a visit which Mrs. Lipscomb paid to her sister, Edna McLaughlin, in Gardiner, Maine. In connection with this visit Lipscomb drove his wife as far as St. Louis, where they bought furniture for their home in Paragould. After spending two days in St. Louis with her husband Mrs. Lipscomb went to Maine to visit the McLaughlins. In the early part of that visit she talked with her husband by telephone from time to time and received a birthday present from him.

Later on, however, Mrs. Lipscomb’s brother-in-law made statements to her which undoubtedly led to the filing of this suit. Dr. McLaughlin told Mrs. Lipscomb that in December of 1953, and again in October of 1954, Lipscomb had discussed with him an affair that Lipscomb was having with a young girl in Paragould. According to McLaughlin, Lipscomb displayed a number of pictures that he had taken of this girl in the nude. McLaughlin’s testimony is wholly uncorroborated and is denied by the appellant.

After receiving these disclosures Mrs. Lipscomb returned to Paragould without letting her husband know that she was coming. There she broke into the family home, gathered up her clothes, and went to live with her parents in Little Eock. She refuses to consider the possibility of a reconciliation or even to discuss the matter with her husband. The chancellor postponed the decision of the case in the hope of saving the marriage, but when that effort failed he granted the divorce upon the ground of personal indignities.

In our opinion the proof falls short of establishing a ground for divorce. The suspicion of adultery may be laid aside at the outset. That is not the ground alleged in the complaint, nor is that cause of action supported by the proof. Even if McLaughlin’s testimony is accepted at face value it shows only an uncorroborated admission by a party to the suit — testimony upon which a divorce cannot be granted. Scarborough v. Scarborough, 54 Ark. 20, 14 S. W. 1098.

On the issue of indignities the statute requires that the offending spouse’s conduct must have rendered the other’s condition intolerable. Ark. Stats. 1947, § 34-1202. In retrospect Mrs. Lipscomb complains of various small grievances in the course of her married life, but there is no reason to think that the appellee found these matters to be beyond her tolerance at the time. To the contrary, she accepted them without complaint and had no notion of a divorce when she left for the visit with her sister. It may be true, as the chancellor evidently believed, that the parties are not likely to live together again, despite the appellant’s hopes of blunging about a reunion. But, as we pointed out in Davis v. Davis, 163 Ark. 263, 259 S. W. 751, such a situation does not warrant the granting of a divorce in the absence of proof that a statutory ground therefor exists.

Reversed and dismissed.


text:
    Karoley v. Reid.
    5-1076
    295 S. W. 2d 767
    Opinion delivered November 12, 1956.
    [Rehearing denied December 17, 1956.]

      B. W. Thomas and Richard W. Hobbs, for appellant.

      Bailey, Warren & Bullion, for appellee.
   Paul Ward, Associate Justice.

This is an appeal from an Order by the Pulaski Chancery Court, First Division, refusing to modify or change its former decree.

These same parties and subject matter were before this court in the case of Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322. Since all of the factual background is set forth in that case it will suffice here to make only a brief outline statement.

In the former opinion we held that the contract between the parties hereto (which contract is set out in full in that opinion) was valid and remanded the ease for further proceedings. In the original complaint Mrs. Karoley alleged that there was $3,000 due in back payments under the terms of the contract. Upon remand the case was retried upon the original complaint except that it was amended to show that there was $8,500 due on back payments.

Upon remand a hearing was held before the original chancellor. At the conclusion of this hearing on May 27, 1955 judgment was rendered in favor of appellant in the amount prayed for. This judgment, which appears in the record, contains, among other things, this finding by the chancellor; “that the relief prayed for by the plaintiff (appellant here) should be granted.” Following the above, in the mandatory portion, the court gave appellant judgment for $8,500 together with interest thereon.

On September 12, 1955 appellant filed a motion before the chancellor who succeeded the original chancellor to reform the judgment entered on May 27th, in which motion she sought to have a judgment for specific performance. This motion was overruled on March 6, 1956 and appellant prosecutes this appeal.

It is our conclusion that the chancellor was correct in overruling appellant’s motion to reform the judgment rendered on May 27, 1955. We have examined the complaint referred to above and it shows conclusively not to be a suit for specific performance, but only a suit to recover the back payments ,under the contract. The only statement which in any way referred to specific performance is in the prayer which reads as follows:

“Wherefore, plaintiff prays that the defendant be required to pay to the plaintiff any and all monies due pursuant to the terms of said contract and that the terms of said contract be, in all things, enforced specifically by this court; for costs and all proper relief.”

Therefore the body of the complaint did not state a cause of action for specific performance, and the prayer did not supply the deficiency. In the case of Hancock v. Simmons, 223 Ark. 285 (at page 286), 265 S. W. 2d 537, we quoted with approval from a former decision of this court the following: “We have held that the statement of facts in a complaint or cross-complaint, and not the prayer for relief, constitutes the cause of action.”

Affirmed.