author: Carretón Harris, Chief Justice.

text:
    Jones v. Brooks.
    5-2302
    343 S. W. 2d 99
    Opinion delivered February 20, 1961.

      J. Harrod Berry, for appellant.

      Rose, Meek, House, Barron, Nash and Williamson, for Citizens Coach Co., O. D. Longstreth, Jr., for Bus-sell M. Brooks and O. D. Longstreth, Jr., for appellee.
   Carretón Harris, Chief Justice.

Asa Jones and wife instituted an action in the Pulaski Chancery Court, seeking to enjoin alleged misuse of, and trespass, upon property allegedly owned by them; they also alleged damage to a purported street between tbeir property and lands used by the Citizens Coach Company (the latter property being immediately south of the alleged street), and asked that appellees be required to restore the street to its former condition. Initially, the complaint was filed on December 15, 1958, against Bussell M. Brooks and Citizens Coach Company, but was subsequently amended, by leave of the court, on October 27, 1959, to include O. D. Longstreth, Jr., as a party defendant. Appellants claimed ownership of certain property, described in the complaint, and located at the corner of Thayer and 19th Streets. From the survey introduced into evidence by appellants, it appears that the legal description embraces a rectangular plot of land with a “finger” of land some 2.5 feet wide, projecting west for a distance of 132.5 feet. With the rectangular plot and strip of land, appellants claim a southern border of some 275 feet abutting the alleged street right-of-way. In their complaint, appellants asserted that appellees wrongfully converted 19th Street to their own use, and removed large quantities of dirt from the street without providing lateral support to appellants’ lot, this last causing continuous caving and sloughing from their property; further, that appellees had wrongfully dug out and hauled soil from the 2.5 x 132.5 feet strip belonging to the Joneses. For relief, appellants prayed, inter alia, that appellees be required to replace the dirt removed; to build a retaining wall along the entire southern boundary of appellants ’ lot, and they prayed that appellees be permanently restrained from further using and damaging their land. After the filing of answers and various motions by appellees, the case proceeded to trial, and at the conclusion of appellants’ evidence, each of the appellees filed his and its separate motion challenging the sufficiency of the evidence and asking that appellants’ cause of action be dismissed. The court granted all three motions, holding:

“. . . that the motions challenging the sufficiency of the evidence to warrant the Court to grant the relief prayed for on the record existing should be granted. The undisputed proof offered by the plaintiff shows that any work that was done on the property in question was performed by persons acting for and in behalf of O. D. Longstreth, Jr., who at all times pertinent was acting as an independent contractor. Said acts on the part of O. D. Longstreth, Jr., were performed by him prior to the time that either Citizens Coach Company or Russell M. Brooks had any interest in and to the property in this cause. Any claim that the plaintiffs may have against O. D. Longstreth, Jr., is barred by the statute of limitations, not having been brought within three years. The Court makes no specific holding as to the additional grounds set forth by the defendants in their motions challenging the sufficiency of the evidence.”

From the decree entered in accordance with this finding, appellants bring this appeal.

Interrogatories were propounded to appellees by appellants, and the answers given reflect that the excavating of the street and a portion of the 2.5 foot strip claimed by appellants, was carried out by the Garner Construction Company, which was employed by Longstreth, and according to the evidence, this excavating commenced in March, 1956, and ended during the latter part of May or first part of June, 1956. Jones testified that Longstreth told him that this work was being done by his (Longstreth’s) employees, and appellant’s testimony denotes that several conversations were held with this appellee. It is readily apparent that appellants were aware of Longstreth’s activities relative to the excavating long before the work was finished; yet, suit was not instituted against Longstreth until October 27, 1959, well over three years after obtaining this knowledge. Section 37-206, Ark. Stats. Anno. (1947) provides that all actions for trespass on lands must be commenced within three years from the time the cause of action accrued. See also Arkansas Power & Light Co. v. Decker, 181 Ark. 1079, 28 S. W. 2d 701. It follows, therefore, that the Chancellor was correct in dismissing the cause of action as to this appellee.

However, under our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, we are of the opinion that the court erred in granting the motion as to the other two appellees. In the cited case, we held that it is the duty of the trial court, in passing upon a demurrer to the evidence, to give the evidence its strongest probative force in favor of the plaintiff, and to rule against the plaintiff only if his evidence, when so considered, fails to make a prima facie case. The trial judge, at this point in the litigation, is not permitted to weigh the evidence. Applying this rule, we think appellants made a sufficient showing to constitute. a prima facie case. The record, particularly the interrogatories, is somewhat difficult to follow, but some evidence and circumstances are presented which support appellants’ alleged cause of action against appellees Brooks and Citizens Coach Company. The answers of Brooks to the interrogatories reflect that Citizens Coach Company conveyed its property south of 19th and east of Thayer to him, though he stated that he did not remember the date and consideration. In its answer to a like question, Citizens Coach Company stated that the property was sold to Brooks in October, 1957, and leased back to it on October 1, 1957 (apparently the same date as the sale). Brooks stated that he did not know who removed the dirt, where it was taken to, how much was removed, when it was done, or who paid for it, but he did admit that one of the lots, known as the DeJarnett lot, was graded by Garner at his (Brooks’) authorization, and that he paid for it. The grading of this lot included some of the 2.5 foot strip claimed by appellants. This one answer was sufficient to make a prima facie case against Brooks, since part of the damage claimed related to this portion of the 2.5 foot strip.

The bus company likewise, in its answers to interrogatories on April 27, 1959, denied knowledge of who cleared, leveled, and graded, the Citizens Coach property; also, it denied knowledge of when the area of West 19th, between the Citizens Coach property and the Jones ’ property was excavated and graded, who did it, or who paid for the job. The company also denied knowledge as to who removed the dirt therefrom, where the dirt was taken to, when it was done, or who paid for doing so. The company, in its Answer to the Complaint, admittedly acquired title to the real estate on Thayer, south of and adjacent to West 19th, from Geraldine Shook, on April 1, 1956. Some of the answers given by the company on the first date seem to conflict with answers given to interrogatories on February 4, 1960, at which time the company stated:

“After Citizens Coach Company was granted a franchise to operate in Little Rock and North Little Rock, it became necessary to locate lands on which to place its buildings and equipment. It entered into a written contract with O. D. Longstreth, Jr., dated April 11, 1956, under the terms of which the company paid him a fixed sum out of which to acquire and grade lands suitable for the company. Mr. Longstreth acted as an independent contractor throughout the transaction, and not as an employee of the company.

‘ ‘ Thereafter, the company entered into a written contract with Russell M. Brooks, dated July 21, 1956, for the construction of a building on the said lands. Under the said contract, Mr. Brooks was an independent contractor.”

On the February date, the company, in reply to interrogatory No. 9, stated that Brooks owned 250 shares of stock in the company from March, 1956, to November, 1956, at which time he acquired 1245 additional shares; that all were voting shares, and that he conveyed all of his stock to the company on October 12,1957, in exchange for the lands and building heretofore mentioned. Certainly, there are circumstances that somewhat indicate that the bus company and Brooks were not only aware of the excavating that was being done, but were participating in seeing that it was done. It is difficult to feature the company entering into a contract with Longstreth, by which it agreed to pay him a fixed sum to acquire and grade lands suitable for its purposes, without ever knowing what lands had been selected by Longstreth; in fact, the company stated that it acquired the Shook property the first part of April, 1956, which was at a time that the excavating was being carried out, and only a short time after the work was started. While it may well be that appellees can establish that Longstreth was an independent contractor, and they had no connection with the excavating, we think the evidence just related warrants an explanation. As stated in Werbe v. Holt, supra:

“Furthermore, in many instances the plaintiff’s prima facie case must necessarily be somewhat weak, for the reason that only the defendant himself may be able to supply details needed to complete the picture. If the case goes to the trier of the facts on the plaintiff’s proof alone, the defendant has the advantage of not exposing weaknesses in his own armor unless called to the witness stand by his adversary. For these reasons, we have no hesitancy in adopting the majority rule as to the function of a demurrer to the evidence.”

Other proof offered by appellants is also sufficient to preclude the granting of the motions challenging the sufficiency of the evidence. Jones and his wife testified that the excavation of the street (to the extent of about 10 feet deep) left their property “high off the street”, and without lateral support; that the slope had washed, and several large places had caved. Mr. Jones testified that there was a continual caving toward his property, and that Brooks had told him that a retaining wall would be built; that Brooks was present when the excavating was going on; that Brooks and an employee of Citizens Coach Company placed a “private property” sign in the middle of 19th Street following the excavating, and blocked the street with barriers of cross-ties to prevent it being used by the public. Mr. W. F. Williams, registered professional engineer, testified that he found evidence of corroding and caving along the bank, and he suggested that a retaining wall should be constructed, or that the bank be graded and sodded to a safe degree of slope in keeping with usual stabilization practices, as protection to Jones.

Appellees vigorously contend that the Joneses cannot recover for alleged damage to their premises because they failed to deraign title back to the sovereignty of the soil. It is true we have held that in ejectment suits, suits to quiet title, and suits to enjoin continued trespass, a plaintiff must rely upon the strength of his own title and not upon the weakness of that of his adversary. Thomason v. Abbott, 217 Ark. 281, 229 S. W. 2d 660. Also, he must deraign title from the government or show adverse possession of the land. Griffin v. Isgrig, 227 Ark. 931, 302 S. W. 2d 777. Appellants did not go this far back in deraigning their title, and they did not offer sufficient proof to show adverse possession to the strip heretofore mentioned. However, while the transcript does not make the matter entirely clear, it appears that counsel for appellants endeavored and offered to show the chain of title. The record reflects:

‘ ‘ Mr. Berry: At this point, your Honor, I would like to show the chain of title. I neglected to bring that out.

The Court: I don’t think there is any dispute on that.

Mr. Berry: If they will stipulate that Mr. and Mrs.. Jones have title as per deed and deraign their title through on down through Mrs. Johnson, I believe that was the grantee in the deed from the Riffels and the Rhotons.

Mr. Carroll: We don’t stipulate that they have title. We stipulate there are deeds which show the description indicating thereon, indicating that they have a record title to the land described therein but we don’t stipulate that their title is good for it is the contention of the defendants if the plaintiffs ever owned a seven foot strip that is 132 feet long, they have lost that as a result of adverse possession of DeJarnett and others.”

Counsel for Brooks and Longstreth also made a similar statement. It is thus clearly indicated that the matter of the Joneses’ record title was covered by stipulation; at any rate, counsel for appellants could have so inferred, and it would be manifestly unfair, in view of the quoted colloquy, to hold appellants barred from recovery for alleged damage to their lands, because of failure to deraign title from the government.

The decree, insofar as it dismisses the cause of action against Longstreth, is affirmed; as to Brooks, and the Citizens Coach Company, the decree is reversed, and the cause remanded for further proceedings.

George Bose Smith, J., not participating.

       In its answer to interrogatories, the bus company stated that this property was acquired on April 12, 1956.

       There is no proof in the record that the street had been abandoned.


source: Caselaw Access Project

author: J. Seaborn Holt, Associate Justice. George Rose Smith, J., Robinson, J., Per Curiam,

license: Public Domain

text:
    Walther v. Walther.
    5-2297
    343 S. W. 2d 408
    Opinion delivered February 20, 1961.
    [Rehearing denied March 13, 1961.]

      Oscar Fendler and Gardner $ Steinsiek, for appellant.

      Claude F. Cooper, for appellee.
   J. Seaborn Holt, Associate Justice.

In September, 1959, appellee, Sgt. John Joseph Walther who was at the time stationed at the Blytheville, Arkansas Air Force Base, sued his wife, Emily Hamilton Walther, for divorce. Mrs. Walther was a non-resident of Arkansas at the time and had married appellee in 1949 in North East, Maryland and they had lived together for short periods in Maryland, Illinois and Texas. Sgt. Walther entered the military service in Pennsylvania in 1941 and since has been a member of the U. S. Air Force except for two short intervals in 1947 and 1952. In April of 1956, while living in a tourist court in Sherman, Texas, Walther left his wife (appellant) and they have lived apart ever since. The record reflects that Mrs. Walther has very little education and is physically unable to support herself. Her expenditures for expenses have been met by an allotment made by Sgt. Walther in the total sum of $137.10 per month, of which amount he has been paying $60.00 and the balance, $77.10, has been paid by the U. S. G-overnment. September 9, 1960, trial was had and a divorce awarded Sgt. Walther on the grounds of three-year continuous separation without cohabitation and the court awarded her attorney’s fee, court costs, and in addition awarded her alimony in the amount of $50.00 per month for a period of twelve months only.

Mrs. Walther brings this appeal and relies upon the following points for reversal: “(I) Plaintiff [appellee] is not a resident of Arkansas within the meaning of our laws entitling him to a divorce in the courts of Arkansas. (II) Should Sgt. Walther be entitled to a divorce, the defendant [appellant] is entitled to an award of alimony and property settlement.”

I

We do not agree with appellant’s first contention that there is not sufficient evidence in this case to show that Sgt. Walther had established his residence in Arkansas as would entitle him to bring suit for divorce. The Arkansas Constitution provides: “No soldier, sailor or marine in military or naval service of the United States shall acquire a residence by reason of being stationed on duty in this State.” Article III, § 7. In commenting upon the above section in the case of Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876, [a divorce case] we said: “This section of the Constitution does not mean that a soldier, sailor or marine stationed in this State may not acquire residence in this State, but it does mean that he may not acquire a residence from the mere fact that he was stationed in the state for whatever period of time he may be so stationed. Apart from that service he must have a residence in this State, and not elsewhere, for a period of two months before filing a suit. ’ ’

It is undisputed in this record that Sgt. Walther had resided in this state for three months before suit for divorce was filed, and we think the evidence was sufficient to show that he intends to make his residence in Arkansas. Sgt. Walther testified, in effect, [quoting from appellant’s brief] “I moved to town to establish my residence in the State of Arkansas. It was not for the purpose of securing a divorce, but of making it my permanent home. It won’t be long until I can retire from the Air Force. I have been over other states, and since I have been here, I have been all over the State of Arkansas. I have been to Hot Springs, up in the Ozarks, Fayetteville, Little Rock, Pine Bluff, Jonesboro, and all around Mississippi County. The people are very friendly, I like the people, the cost of living is reasonable. It appears to me it could be an ideal place to reside.” He further stated he claimed Arkansas as his bona fide home and residence and would continue to do so. “Q. Mr. Walther, have you established your residence here in Arkansas? A. Yes, sir. Q. And have you done it, to make it permanent? A. Yes, sir. Q. If you stay here throughout the rest of your service, until you retire, do you contemplate living here in Arkansas? A. Yes, sir. Q. You plan on making it your home? A. Yes, sir. Q. Was that your intention, at the time you established your residence? A. Yes, sir. Q. You could move back to the Blytheville Air Force Base today, if you wanted to, couldn’t you? A. Yes, sir. Q. They have quarters available to you? A. Yes, sir. Q. Your moving to town, was a matter of your own choice, wasn’t it? A. Yes, sir.”

II

We agree with appellant’s second contention that should Sgt. Walther be granted a divorce, still appellant would be entitled to alimony and a property settlement. Section 34-1202, Ark. Stats. (1947) provides: “Where either husband or wife have lived separate and apart from the other for three consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was a voluntary act or by mutual consent of the parties, and the question of who is the injured party shall be considered only in the settlement of the property rights of the parties and the question of alimony.” It is in the sound discretion of the trial court to grant alimony to the wife even though she be the guilty party. In the case of Clayburn v. Clayburn, 175 Ark. 330, 299 S. W. 38, the court said: ‘ The chancery court has power to allow alimony to a wife against whom a decree of divorce is granted, the amount thereof being governed by the circumstances of each case.” And in Conner v. Conner, 192 Ark. 289, 91 S. W. 2d 250, this court held: “The trial court may, in exercise of sound discretion, allow a wife alimony, attorney’s fee and costs, though for her fault the husband is granted a divorce.”

The record reflects that at the time the divorce decree was granted Sgt. Walther he was earning $240.00 per month. On the other hand, the evidence shows that appellant, Mrs. Walther, is now 51 years of age with very little education, is weak physically and, in fact, ill and in dire need of support in the sum of $137.10 per month, $60.00 of which is paid by appellee, as indicated. We do not agree, however, with the lower court in limiting this support money from her former husband to a period of twelve months but hold, in the circumstances, that appellee, Sgt. Walther, should continue to pay Mrs. Walther this monthly sum of $60.00 until further orders of the court, based on changed conditions.

Accordingly, the decree is remanded to the trial court with directions to amend its decree in compliance with our holding.

George Rose Smith, J., concurs.

Robinson & Johnson, JJ., dissent.

George Rose Smith, J.,

concurring. The majority opinion is evidently based upon the assumption that Walther was telling the truth when he testified that he intends to make his home permanently in Arkansas. This view of the proof would support a finding that Walther is domiciled in this state, and consequently the majority do not reach the question that I regard as controlling.

This is the third state in which Walther has sought a divorce. In 1953 he filed suit in Florida and asserted that he was a bona fide resident of that state. That suit was unsuccessful. In 1957 he filed suit in Texas and asserted that he was a bona fide resident of that state. That suit was unsuccessful. In 1959 he filed suit in Arkansas and asserted that he was a bona fide resident of this state. He testified that he intends to make his home here permanently and that he moved off the air base not for the purpose of obtaining a divorce but for that of establishing his residence in Arkansas. I am unable to believe that Walther is sincere in making these statements. In my opinion Walther’s sole purpose in moving off the reservation, paying his poll tax, buying an Arkansas motor vehicle license, and so forth, was to lay a foundation for this suit. I do not think that he really intends to make his home in this state with such a degree of permanence as to establish a domicile in Arkansas.

Nevertheless I cannot say that the proof of residence in this case is insufficient. By Act 36 of 1957 the legislature substituted residence, or mere physical presence, for domicile as a jurisdictional basis for divorce. Ark. Stats. 1947, § 34-1208.1. We upheld the statute in Wheat v. Wheat, 229 Ark. 842, 318 S. W. 2d 793. As our law now stands a nonresident civilian can come to Arkansas and obtain a divorce after a sojourn of three months, even though he testifies candidly that he came here only to obtain a divorce and that he means to leave as soon as the decree is entered. Such a decree would not be entitled to full faith and credit elsewhere, but under the statute the chancellor would have no basis for refusing to hear the case on its merits.

Walther’s only difficulty is that he came to this state involuntarily, under military orders, and consequently our constitution prevents him from establishing an Arkansas residence by physical presence only. Ark. Const., Art. 3, § 7; Kennedy v. Kennedy, 205 Ark. 650, 169 S. W. 2d 876. It was therefore incumbent upon him to go a step farther and demonstrate by overt acts that he has acquired a residence here.

It is not essential, however, for a soldier in Walther’s position to prove domicile as a jurisdictional requirement for his suit. The controlling constitutional provision makes no mention of domicile; it merely declares that a soldier cannot acquire a residence by reason of being stationed on duty in this state. A soldier’s jurisdictional proof must therefore be directed toward establishing a middle ground somewhere between domicile on the one hand and physical presence under military orders on the other.

By moving off the air base and thereby taking a minor part in the civilian life of the community Walther did what he could to demonstrate objectively that his connection with this state went beyond his simply being stationed here in obedience to compulsory orders. Under the reasoning in the Wheat decision the real question is whether Walther’s activities have provided the state of Arkansas with such cause for an interest in his marital status as to justify our courts in entertaining his suit for divorce. Unless we are to require proof of domicile in this case— a requirement that would be peculiar to soldiers and sailors and that would find no direct support in the language of the constitution and statutes — I see no tenable ground for holding that Walther’s actions fall short of establishing his residence.

Robinson, J.,

concurring and dissenting. I join in Mr. Justice George Rose Smith’s concurring opinion in this case as to the residence of the appellee.

I dissent, however, from that part of the majority opinion regarding the alimony. I think the chancellor’s decision in respect to allowing alimony for only one year was correct. Therefore, I would affirm the case in its entirety.

Per Curiam,

on rehearing. Appellant’s counsel is allowed an additional fee of $100, to be taxed as costs. Rehearing denied.


author: Ed. F. McFaddin, Associate Justice.

text:
    Lavender v. City of Rogers.
    5008
    343 S. W. 2d 103
    Opinion delivered February 20, 1961.

      Boh Scott and Walter Davidson, for appellant.
    J. Wesley Sampier, for appellee.
   Ed. F. McFaddin, Associate Justice.

Appellant was fined $50.00 in the Circuit Court, for failure to obtain a building permit required by an ordinance of the City of Rogers; and lie brings tbe present appeal. This is the second appearance of the same parties in this Court. In the first case, Lavender sought to recover a building permit fee which he paid the City of Rogers. We decided adversely to Lavender in the case of Lavender v. Rogers, 232 Ark. 673, 339 S. W. 2d 598; and reference is made to that opinion for the background facts.

In the present case, it is conceded by appellant that he undertook the construction of another building for the Rogers School District in addition to the building involved in the said first case; and also it is stipulated that appellant did not obtain a permit from the City before commencing the construction of the said second building. The City of Rogers charged Lavender with a misdemeanor for failuio to obtain a building permit; and trial in the Circuit Court (on appeal by Lavender from the Rogers Municipal Court) was on facts entirely stipulated, as follows:

“It is stipulated between the parties that Ordinance No. 385 requires the obtaining of a building permit prior to the beginning- of the construction of any building within the municipal limits. It is hereby agreed and stipulated by and between the parties that the building for which the defendant, Tom Lavender, failed and refused to purchase a permit under Ordinance No. 385 of the Ordinances of the City of Rogers, Arkansas before beginning construction of a building was and is a school building within the corporate limits of the City of Rogers, Arkansas, and for the use of Rogers School District No. 30. It is further stipulated and agreed by and between the City Attorney of Rogers, J. W. Sampler, and Bob Scott, attorney for Tom Lavender, d/b/a Lavender Construction Company, that a trial by jury is waived and that the Court, by agreement, should decide the issues in this case upon the agreed stipulation. . . . ”

The stipulation constitutes the entire evidence in the case. The Circuit Court found Lavender guilty of violating Ordinance No. 385 and imposed a fine of $50.00. On this appeal, Lavender urges only one point, to-wit: ‘ ‘ That the City of Rogers, Arkansas, appellee, is without authority to enact and enforce municipal laws regulating the materials used, and the mode and manner of construction of State school buildings, and as a consequent result thereof, the lower court erred in overruling appellant’s Motion for New Trial.”

Therefore, the only issue presented on this appeal is whether the City of Rogers, as a municipal corporation, had any authority to require a building permit of a contractor about to undertake the construction of a building for the school district. That is exactly the same question presented by Lavender and decided adversely to him in the first case, Lavender v. Rogers, supra. Our holding in that case is ruling here; and a study of that case will disclose the reasons for our holding. It was demonstrated that under the Arkansas statutes, cities have some supervisory power in the construction of school buildings.

Affirmed.


author: George Rose Smith, J.

text:
    Jackson v. Campbell.
    5-2324
    343 S. W. 2d 106
    Opinion delivered February 20, 1961.

      Paul K. Roberts, for appellant.

      B. Ball, for appellee.
   George Rose Smith, J.

This is a petition by which the appellant, a woman of thirty-five, seeks to regain the custody of her twelve-year-old daughter, Pamela Campbell, born out of wedlock. The chancellor refused to take the child away from the appellee, the child’s aunt by marriage, who has looked after the little girl ever since she was one year old. We are of the opinion that the chancellor’s decision was correct.

There is very little dispute about the facts. The appellant grew up in Bradley county, but at the age of seventeen she left Arkansas and became a resident of Illinois. There she entered into an illicit relationship and became the mother of two illegitimate children. The older child, a son, still lives with his mother; this case involves the custody of the younger one, Pamela.

In 1949, when Pamela was a year old, the appellant returned to Arkansas for a visit. The appellant’s brother, Hollis Campbell, and his wife, the appellee, had no children of their own and, according to the appellant, pleaded with the appellant to leave Pamela in their temporary care. The appellant yielded to her brother’s entreaties and left the child in the Campbell home when she returned to Illinois.

In 1950 the appellant married James Jackson, who joins his wife in her effort to regain the custody of her child. The Jacksons now have six children of their own and are living in a home which they are purchasing in the city of Harvey, Illinois, a suburb of Chicago. There is no reason to question either the appellant’s fitness to have the custody of her daughter or the suitability of the Jackson home as a place for the child’s upbringing.

Our affirmance of the chancellor’s decree is based upon the fact that the appellant permitted her daughter to remain in the Campbell home for ten years. Hollis Campbell died in 1954, but the appellant still allowed her sister-in-law, the appellee, to keep the child. During the ten years in question ties of love and affection have grown up between Pamela and the appellee, ties which should not be wantonly and suddenly destroyed. Graves v. French, 209 Ark. 564, 191 S. W. 2d 590. Pamela is undoubtedly happy in the appellee’s home and is shown to be doing exceptionally well in school.

During the same period the appellant has become almost a stranger to her daughter. The two have seen each other only for an hour or so at a time upon the appellant’s infrequent visits to Arkansas. The appellant has shown little interest in her daughter’s welfare, has contributed almost nothing to her support, and has hardly even written to the child. The appellant insists that she has intended all along to take Pamela back to Illinois, but her excuses for her delay are so weak that her belated protestations carry little weight. The chancellor was greatly impressed by the testimony of Pamela herself, who strongly expressed her desire to remain in the home of the appellee. In these circumstances, as we intimated in Lipsey v. Battle, 80 Ark. 287, 97 S. W. 49, it would not now be to the child’s best interest for the appellant’s petition to be granted.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Shaver v. Johnson.
    5-2331
    343 S. W. 2d 105
    Opinion delivered February 20, 1961.

      Chas. F. Cole, for appellant.

      Gus Causbie, for appellee.
   Sam Robinson, Associate Justice.

The title to certain real estate in Sharp County is involved in this appeal. Appellees, Allie Mae Johnson and Christine Patterson-, daughters of S. L. and H. B. Shaver, and Willene Yant, granddaughter of the Shavers, filed this suit alleging they are heirs at law of S. L. Shaver, who died in 1926, and his wife, H. B. Shaver, who died in August, 1957; that as heirs of the Shavers and grantees in a deed from H. B. Shaver, they are the owners of certain described land; that defendant, George V. Shaver, the brother of Allie Mae Johnson and Christine Patterson, and who is also an heir, is plowing up pasture land involved, tearing down fences and doing other acts of trespass and that he should be enjoined from committing such acts; and that the land should be partitioned between the owners.

On the 10th day of July, 1954, Mrs. H. B. Shaver executed a deed naming Allie Mae Johnson, Christine Patterson, Willene Yant and George V. Shaver as grantees. One of the issues in the case is whether this deed was ever delivered by the grantor. The chancellor held that there was no delivery of the deed, and appellees have appealed on that point. We cannot say the chancellor’s decision was against the preponderance of the evidence. It is clear from the evidence that this deed was made by Mrs. Shaver for the purpose of giving her granddaughter, Willene Yant, an equal share in the property, and the deed would have accomplished that purpose if there had been a delivery, but there was no delivery. After the deed was executed it was delivered to Mr. Eagle Street, who kept it, along with abstracts and other papers belonging to Mrs. Shaver. Subsequently Mrs. Shaver executed a deed to 40 acres of the property to Joseph F. Doyle and Frances M. Doyle. It does not appear that any of Mrs. Shaver’s children or her granddaughter at that time protested that she did not have a perfect right to convey the property. Later she gave a deed to 67% acres of the property to her son, George V. Shaver, and none of the children or the granddaughter protested at that time that she did not have the right to make a conveyance. George contends that he bought the 67% acres from his mother; on the other hand, appellees maintain it was an advancement. The chancellor held it to be an advancement, and George has appealed.

The overwhelming testimony is to the effect that it was given to him as an advancement. Although the deed mentions the consideration of $1500, the circumstances show clearly that neither $1500 nor any other amount was paid. Allie Mae Johnson testified positively that the matter was discussed of her mother’s giving her brother, George, a deed to 67% acres as an advancement, so that he could make improvements on it and handle it as he wanted to; that she lived with her mother and took care of her for more than forty years; that her mother was very poor, and that they barely had the necessities of life; that her mother never had $1500 at one time in her whole life. Christine Patterson, another daughter, gave testimony to the same effect, and George’s testimony to the effect that he gave his mother $1500 as consideration for the deed is not believable. In the first place, he said he paid her $1,500 in cash, while they were alone, with no one present. He says that he had been carrying the money around in his pocket for three or four months and had earned it while working in Texas. "When he was questioned as to whether he had drawn the money out of the bank prior to carrying it around in his pocket for three or four months, he answered as follows: “I’m one that saved some money when I was in Texas. Now, I ain’t a going to tell you how all I done it or what I done; but I’m one of them that did do it.” And when he was further questioned about where he had the money all that time, he answered: “Well, I fugure it wouldn’t a been any of your business or my — or anybody else’s.” Charley Simmons testified that on about the date of the deed to George, he loaned George the sum of $1,000 in cash and George told him that he wanted the money for the purpose of buying the land from his mother, but George testified that he had been carrying the money around in his pocket for three or four months before buying the land. When all the facts and circumstances of his mother’s condition are considered, along with George’s unsatisfactory testimony, the evidence is over■whelming to the effect that the conveyance to George from his mother was an advancement of his part of the home place, and Ark. Stats., § 61-116 on “Advancements” is applicable.

George mentions in his appeal that he is entitled to one-third of the home place, but the deed to him from his mother conveys only one-fourth. The chancellor found, however, from the evidence that the deed to George for the 67% acres was in lieu of any interest he might inherit in the home place. We cannot say the chancellor’s decision was contrary to the preponderance of the evidence.

Affirmed on appeal and on cross appeal.


author: Carleton Harris, Chief Justice.

text:
    Dun & Bradstreet, Inc. v. Robinson.
    5-2236
    345 S. W. 2d 34
    Opinion delivered February 27, 1961.
    [Rehearing denied, opinion amended May 1, 1961.]

      Rex W. Perkins, Wade & McAllister, Mehaffy, Smith & Williams, John T. Williams, Robert V. Light, for appellant.

      Crouch, Jones, Blair and Cypert, by James B. Blair, for appellee.
   Carleton Harris, Chief Justice.

This is a libel suit. Appellee, Joe Robinson, is engaged in the wholesale produce business in Springdale, Arkansas. Appellant, Dun & Bradstreet, Inc., is a mercantile agency, engaged in the business of gathering, compiling, and furnishing to its subscribers information concerning the credit and financial standing of individuals and organizations. Appellant, Mrs. Margaret Lawrence, was the Dun & Bradstreet correspondent in the Springdale area. Mrs. Lawrence was given employment by the company in February, 1958, and on February 27th, according to her testimony, during the course of taking a report from John Holyfield of Horner Tire Company of Springdale, appellant was asked by the latter if she had heard that Joe Robinson had taken bankruptcy. Mrs. Lawrence had not heard the report, but, according to the witness, in compliance with instructions from Dun & Bradstreet to report to the Little Rock office any unusual occurrences, she left Holyfield’s office, went home, and immediately called the Dun & Bradstreet office in Little Rock, and related what Mr. Holyfield had said. The Little Rock-office prepared the following “special notice'report”, which was sent, on March 3rd, to thirty-six of its subscribers.

“ 5141

ROBINSON, JOE

SN 85 MARCH 3 1958

WHOLESALE PRODUCE

SPRINGDALE ARK

WASHINGTON COUNTY

HWY NO. 71 SOUTH OR

1020 & 1102 N/SE SOUTH

RATING: (Investigating) C 2 1/2

BUSINESS REPORTED DISCONTINUED

It is currently reported subject discontinued operations February 26,1958. Further investigation is underway for more complete details.

3-358 (066c-9)”

In the meantime, Mrs. Lawrence, on February 28th, (the day following her initial report) received a request from the Little Rock office asking for further information in the nature of a report form to be filled in on Robinson. Mrs. Lawrence called Robinson’s office, and talked with his secretary, who denied the report. Subsequently, Robinson called this appellant, and told her that the report was not true. Mrs. Lawrence wrote up the report on that date, but was unable to state when it was mailed. The company apparently received it on March 4th, and as a result, sent out the following notice to the same customers.

“ 5141

ROBINSON, JOE

SN 85 MARCH 4 1958

WHOL PRODUCE

SPRINGDALE ARK

WASHINGTON COUNTY

HWY NO. 71 SOUTH OR

1020 & 1102 N/SÉ SOUTH

RATING: C 2 1/2

BUSINESS CONTINUED ■

Joe Robinson was interviewed recently and he denied reports that operation discontinued, or that he has sustained any business reverses.

3-4-58 (066c-51)”

On March 15, 1958, appellee instituted suit against Dun & Bradstreet and Mrs. Lawrence seeking recovery of $750,000 for damages sustained as a result of the publication of the notices. The complaint alleged the published notices to be false and untrue, and asserted that the publications had caused Robinson’s customers and potential customers to believe that his business had failed or was about to fail. The notices were alleged to have been published with malicious intent to injure Robinson in his business, and appellee asserted that such business had been greatly injured, in that he had suffered a great loss of customers and income, and would in the future so suffer; that his credit had been curtailed, and his reputation injured, as a result of the publication of the reports, and that he had suffered extreme personal embarrassment. After the filing of demurrers, which were overruled, appellants filed their separate answers, Mrs. Lawrence asserting that her communication to the company was made in good faith, under circumstances of reasonable caution as to its being confidential, and that the communications were privileged. She further asserted that the communication was true. Dun & Bradstreet alleged that the information was received from sources reasonably believed by it to be reliable; that the reports were sent only to subscribers as had theretofore requested information pertaining to appellee, and that the report was qualifiedly privileged. Further answering, the appellant company alleged its good faith and denied that the information was furnished maliciously. On trial, the jury returned a verdict for Bobinson against the appellants in the amount of $30,000 for special compensatory damages, $10,000 being awarded for damages already suffered, and $20,000 awarded for future damages. The jury did not award punitive damages as sought by appellee. From the judgment entered in compliance with the jury verdict, appellants bring this appeal. For reversal, appellants principally rely upon three contentions, vis, “ (1) That the truth of the publications was established by the undisputed proof, (2) That there is no competent evidence in the record to support a finding of malice necessary to destroy the qualified privilege that protects the defendants from liability, and (3) That there is no substantial evidence in the record to support a finding of either the fact or amount of damages accruing to the plaintiff as a proximate result-of the publications.” We proceed to a discussion of each contention in the order listed.

Appellants emphasize that Dun & Bradstreet did not report that Joe Bobinson had discontinued business operations, but rather, the report stated “it is currently re ported” that Robinson had discontinued operations. In other words, appellants contend that since such a report actually had been received, the publication was entirely true, and such truth is a complete defense. We very quickly reject this argument as unsound. While it has been generally held that the truth of a defamatory statement is a complete defense to an action for libel, the “truth” referred to has reference to the correctness of the substance of the report, rather than the fact that such a report was made. In Restatement of the Law of Torts, Yol. 3, A.L.I., § 582, subsection (d), p. 217, we find:

“d. It is necessary to establish the truth of the defamatory matter contained in the statement. When one person repeats a defamatory statement which he attributes to some other person, it is not enough for the person who repeats it to prove that the statement was made by the other person. He must prove the truth of the defamatory charges which he has thus repeated. ’ ’

Obviously, plain logic supports the propriety of this rule. We think the words used in the report of March 3rd clearly, in their common acceptation, convey to the reader that appellee had discontinued operations, even to specifically giving the date of discontinuance, February 26th, 1958. The second sentence of the report read, ‘ ‘ Further investigation is underway for more complete details.” More complete details on what? In our opinion, this language would be unquestionably construed by a subscriber to refer, not to whether operations had been discontinued, but rather, to the details of the circumstances leading to discontinuance. Since admittedly, Robinson had not ceased operations, the report sent out by Dun & Bradstreet was erroneous, and appellants have no valid defense in asserting the truth of the communication.

It is not really argued that the second communication was a correction or retraction of the first, nor would such argument be valid. It will be noted that the March 4th report does not state that the earlier notice was in error, and that the subject has not discontinued operations; rather, it states that Robinson "denied reports operation discontinued.” This, of course, is not to say that the original notice was erroneous, and the second communication would carry but little weight in changing the opinion of those who received the first publication. A person charged with crime generally denies that he has committed the crime, but this does not vindicate him in the eyes of the public. To illustrate, suppose a notice is published, "It is currently reported John Smith has stolen money from his employer.” Subsequently, a notice is published, "John Smith denies that he stole money from his employer.” No one could reasonably argue that the latter statement was a retraction of the first. At any rate, of course, even though the second Dun & Bradstreet notice could possibly be considered as a full and fair correction or retraction, same could only be considered in mitigation of damages. See 53 C.J.S., § 257, p. 371.

It might be well to here state that counsel for appellants and appellee, during oral argument, clearly stated to the Court, and agreed, that neither side desired the case to be remanded for another trial, i.e., appellants’ argument was directed solely to the fact that the judgment should be reversed and dismissed, and appellee’s argument (his cross-appeal having been abandoned) was directed to support of the judgment awarded.

Of all the instructions given (10), appellants now only complain of the definition of malice given by the court, found in Instruction No. 2. That definition is as follows:

“Malice is defined as the doing of a wrongful act, either in a personal sense, as the doing of an act intentionally that is wrong, or the doing of an act actuated by spite, grudge, hatred, ill will or evil intent, or in the impersonal sense, as the doing of an act without just cause or excuse, with such a conscious indifference or reckless disregard as to its results or effects upon the rights or feelings of others as to constitute ill will. ’ ’

Appellants contend that the communications were made upon conditionally privileged occasions, and that-to overcome this conditional privilege, appellee must show actual malice, i.e., ill will, spite, or grudge, which actuated the publications. In other words, appellants, by the term * ‘ actual malice, ’ ’ mean malice in the moral sense — sometimes legally termed “malice in fact” — the feeling of hate - — vindictiveness—animosity—which prompts one to say or write unkind things about another in the spirit of revenge, or other malevolent motive. We agree with appellants, and with the trial court, that the publications were made upon conditionally privileged occasions, and the jury was so instructed. Though there are a few decisions to the contrary, the rule supported by the weight of authority is that the defense of qualified privilege is available to a mercantile agency relative to reports referring to credit or financial standing and furnished subscribers having an interest in the matter. See 53 C.J.S., § 119, p. 196. The reason for such a rule is well expressed in Restatement of the Law of Torts, Yol. 3, A.L.I., p. 240:

‘ ‘ Occasions conditionally privileged afford a protection based upon a public policy which recognizes that it is essential that true information shall be given whenever it is reasonably necessary for the protection of one’s own interests, the interests of third persons, or certain interests of the public. In order that such information may be freely given, it is necessary to afford protection against liability for misinformation given in an honest and reasonable effort to protect or advance the interest in question. Were such protection not given, true information which should be given or received would not be communicated through fear of the persons capable of giving it that they would be held liable in an action of defamation unless they could meet the heavy burden of satisfying a jury that their statements were true. These privileges have a strong analogy to the privileges intentionally to invade the legally protected interests in bodily security, freedom from confinement and the exclusive possession of land or chattels. Like these privileges, they give protection from liability only when exercised for the purpose for which they are given and with reasonable care that no more harm shall be done to the interests of others than is necessary to accomplish the end for which the privilege is given. ’ ’

However, we hold the second part of appellants’ contention, viz., that malice in the moral sense must be shown to overcome this privilege, to be unsound, as well as against the great weight of authority. In taking this view, we are not unmindful of the cases cited by appellants to the contrary. But even though these cases expressed the majority, rather than the minority view, we would be reluctant to adopt the same reasoning, for we think such a holding gives undue protection to a mercantile agency, while placing an undue burden upon the individual or concern which has borne the brunt of untrue and damaging-statements. Rather, we think appellants are liable under the definition of malice given by the trial court. Actually, there is authority to the effect that a plaintiff need not make even as strong a showing as was required by that instruction; that false information conveyed because of negligent investigation is sufficient to destroy the qualified privilege. This need not be considered in the instant case, since we think the proof, hereinafter discussed, was sufficient under either concept. In ABC Needlecraft Co. v. Dun & Bradstreet, Inc., 245 F. 2d 775, it was held that the malice necessary to destroy a qualified privilege can, in addition to actual malice, consist of such reckless disregard of the rights of another as to constitute the equivalent of ill will. The Court commented:

“With nothing more to go on than a misunderstood casual remark, with no effort to verify the facts, though to have done so would have been a simple matter, the defendant published information of a serious and damaging nature.”

The court held that whether the proof showed “constructive malice ’ ’ was a question of fact to be submitted to the jury. This is in line with our own case of Thiel v. Dove, 229 Ark. 601, 317 S. W. 2d 121, wherein this Court said:

“It may be conceded that if Thiel did not know who lived in the apartment next to the stairway his statements were not consciously motivated by ill will toward Mrs. Dove in particular. But the proof supports a finding that Thiel acted at his peril in designating the apartment and displayed such a conscious indifference to results.that his conduct could be regarded as willfully wrong. ’ ’

Dun & Bradstreet enjoys the implicit confidence of its subscribers, as attested by witnesses in the cause before us. This confidence in the accuracy of Dun & Bradstreet reports places an even greater responsibility upon the company, and requires “that its reports be compiled with regard to the effect that such report may have upon the rights or feelings of the person reported on, if it should develop that the information given is false.” In applying “the law given by the court in its instruction heretofore quoted,” we look to the evidence to determine “whether a jury question was presented.” Clearly, we think the answer is, “Yes.” It would have been an easy matter for Mrs. Lawrence to have called Robinson on February 27th before communicating the rumor to the Dun & Bradstreet offices in Little Rock; in fact, Mrs. Lawrence did call Robinson’s office the next day. Likewise, though the Little Rock office asked Mrs. Lawrence on February 28th for additional information, the special report to subscribers was mailed out from Little Rock before receiving Mrs. Lawrence’s response to this request ; at that, it was not sent until Monday, March 3rd, four days after receiving her telephone call. This four day period between the receipt and dissemination of this information certainly indicates that the company did not consider the report so startling and important that there was a pressing need for immediate communication to subscribers, and it seems that prudence would have dictated that the company await further clarification, particularly since the information was obtained from an inexperienced operator. By waiting one more day, the company would not have found it necessary to send out the second report. We hold there was substantial evidence to the effect that Mrs. Lawrence and Dun & Bradstreet acted with conscious indifference and reckless disregard of the rights of Robinson in publishing the report of March 3rd; it follows that the protection afforded by the fact that the communication was conditionally privileged, was lost.

We come now to the question of damages. Though quite a bit of evidence was offered on behalf of appellee as to loss of business from people who were not subscribers to the reporting service of Dun & Bradstreet, and who had allegedly ceased or curtailed business with Robinson because of hearing of the report to the subscribers, the trial court instructed the jury not to consider any unauthorized republication in determining special compensatory damages. We see no need to discuss the issue of republication, i.e., when one may be liable for unauthorized republication of defamatory statements, since the instruction was favorable to the appellants, and appellee has made no complaint, and further, since we take the view that the evidence reflects a sufficient loss of customers and loss of credit from Dun & Bradstreet subscribers to justify the amount awarded. We do agree with appellants (and the trial court so ruled) that the publication of March 3d was not libelous per se, but rather was actionable per quod. As stated in 53 C.J.S., § 8, p. 41:

“In general, defamatory words may be divided into those that are actionable per se, which on their face and without the aid of extrinsic proof are recognized as injurious, and those that are actionable per quod, as to which the injurious character appears only in consequence. of extrinsic facts.”

Of course, words that are actionable per se support a recovery of general damages, while words actionable per quod only support special damages. The court properly instructed the jury in this respect.

H. E. Schmieding, engaged in the produce business, a partner in H. E. Schmieding Produce Company, president of Schmieding Brothers, Inc., and a stockholder in Schmieding Brothers, Inc., of Colorado, testified that all these businesses ‘ ‘ are worked together. ’ ’ The companies are engaged in buying and selling fruit and vegetables. The witness testified that he had been engaged in business in Springdale twenty-two years, and that he received the two notices from Dun & Bradstreet on March 4th and 5th, 1958. He stated that his companies had been doing business with Robinson prior to March 3d, 1958, in that Robinson has been hauling loads for him. Schmieding testified, “When we receive a notice from Dun & Bradstreet, we more or less follow their line, as far as our operation is concerned. That is the reason we have their reports and why we are on the mailing list, and we go according to what they say. We figure they are a very reliable source of information.” He stated that while the company actually paid nearly $3000 more to Robinson from March, 1958, to March, 1959, than in the preceding year, the loads given to appellee were cheaper, and loads of less profit. The witness testified that previously Robinson had hauled loads of eggs and peaches, and that perishable loads are more profitable; that following receipt of the reports, Robinson was given loads of sweet potatoes and Irish potatoes, but no perishable products. The witness stated that “The reason why we didn’t give him the egg loads and peach loads is that there was a definite question in our mind as to his operation after we received the reports. ’ ’ Schmieding stated that he was not familiar with any rumors concerning Bobinson at the time of receiving the reports.

T. G. Hill & Company of Atlanta, Georgia, was sent the notices issued by Dun & Bradstreet. Bobinson testified that prior to March 3, 1958, he bought quite a lot of soy bean meal and cotton seed meal from that company. “If they had someone that wanted to buy in Florida, for instance, they funneled the business into our office. ’ ’ The witness testified that his gross volume business with the Hill company during the year 1957 and up until March 3, 1958, was $30,860.42. He further testified that he could find no record of any business with that organization since the latter date. No explanation was offered for this loss of business, as no official of the company testified. Bobinson testified that in 1957, he had a gross volume of business with Cook & Company of Atlanta, Georgia, in the amount of $3,500, but nothing after March 3, 1958. No official of this company testified as to the reason for discontinuing business with Bobinson. Appellee testified relative to a decrease in volume of business from several companies after March 3, 1958, among them Sunkist Growers of Ontario, California, for whom he had transported oranges and lemons; Okoma Frozen Foods of Omaha, Nebraska, for whom he had transported frozen poultry and turkeys, and Fairmont Foods of Omaha, for whom he had also previously hauled frozen turkeys and poultry, but not after March 3, 1958. Fred Hoeffner, credit manager of Okoma, by deposition testified that the company had not at any time had business transactions with Bobinson; that his attitude concerning the credit standing of Bobinson did not change in any way after receiving these special reports (why the special notice reports were sent to a company that had no business transactions with Bobinson is not made clear). John P. Macnamara, general credit manager of Fairmont Foods Company, testified that the credit reports had nothing to do with the drop in business to Bobinson, but that the company had changed its method of operations.

Appellee testified quite at length, relative to special damages suffered due to loss of credit following the publication of the notices. According to the witness, on March 3, 1958, he was indebted to Diamond-T Motor Company of Chicago in the amount of $21,723. Following the special notices, the company cancelled orders for five new trucks which were already on order. T. J. Carmody, vice-president of the company, and in charge of credit, testified by deposition as follows: that the dollar amount of business transacted with Bobinson for parts in 1955 was $202.71; in 1956, $123.09; in 1957, for parts, $1,140.56, and for trucks, $24,080, and in 1958, for parts, in the amount of $20.64. The witness stated that Bobinson was indebted to the company on March 3, 1958, in the sum of $21,723, and the indebtedness was past due in the amount of $669. Carmody stated that his attitude concerning Bobinson changed after March 3,1958, in that it became less favorable, but that this change in attitude was due to Bobinson’s delinquency in accounts, rather than because of receiving the special notices. The witness admitted, however, that following receipt of these notices, he called appellee and said, “What’s going on down there, Bobinson? I have a notice that you are out of business. ’ ’ Carmody insisted, however, that the reports had nothing to do with his less favorable attitude toward Bobinson’s credit.

Appellee testified that he had bought motor truck equipment from the White Motor Company of Dallas since 1945, and owned the first White tractor that ever came to Springdale; that nothing had been sold to him by this company since March 3, 1958, although he had requested credit. Hurshel Martin, regional business manager for White Motor Company, testified that on March 3, 1958, though appellee was indebted to White for three trucks, and part of the amount was past due, his attitude toward Bobinson had not changed.

Bobinson testified that he had bought large quantities of motor truck equipment from International-Harvester since 1940, but after March 3, 1958, the company repossessed three tractors, upon which an indebtedness was due.

W. A. Cary, credit manager for International-Harvester in Little Rock, testified that Robinson purchased three motor trucks from the company’s Fayetteville dealer in August, 1956, under the terms of 10% down and the balance due in thirty-sis equal monthly installments. Mr. Cary stated that on March 3, 1958, appellee was indebted to the company in the amount of $19,000, several monthly payments being past due. The witness testified that it became necessary to repossess this equipment in April, 1958. He said that he received the special notice reports issued by Dun & Bradstreet referring to Robinson, but that these notices had no connection whatsoever with the repossession of the trucks. Cary stated the company, during that same period of time, had an open account with Robinson for service work done, and for parts furnished for these trucks by the service department and various company installations around the country ; that the account was current on March 3, 1958. The witness testified that appellee had not been satisfied with the engines in the trucks, and had contended that the engines would not perform the job. Cary stated that considerable work was done on these engines by Cummins (maker of the engines), probably about a thousand dollars each on all three, but that Robinson was never completely satisfied with the results. Cary agreed that the past due accounts on the trucks were due almost entirely to the fact that Robinson was claiming engine trouble. The witness stated that when the trucks were sold to Robinson, the latter’s financial condition was investigated, and the line of credit authorized. He testified that he considered Dun & Bradstreet a reliable company, and felt that credence could be placed in their reports.

Robinson testified that he had been buying diesel trucks from Mack Trucks, Inc., of Plainfield, New Jersey, since 1955, and that the last purchases were made in 1957. Appellee stated that after March 3, 1958, the company so pressed him for money on the last two trucks purchased, that he agreed to clean them up, overhaul them, repaint them, and sell them, in order to pay the indebtedness. A. F. Seiferth, division credit manager for Mack Trucks, Inc., of Dallas, Texas, testified by deposition, that the account was delinquent during the year preceding March 3, 1958, and though he had recommended that the trucks be repossessed, it was decided that the debtor would be given an opportunity to refinance the indebtedness and become current. The witness stated that the first refinance payment was due in February, 1958, but the check was returned for insufficient funds, and the payment was not made until April. The March refinance payment was made in May. Mr. Seiferth testified that the Dun & Bradstreet special reports did not affect in any way the credit or business relationship between Robinson and the company, though he admitted that he sent a telegram on March 10.1958, to Keith Skelton in Springdale, dealer for Mack Trucks, as follows: ‘ ‘ Dun & Bradstreet advise Joe Robinson out of business 2/26. What about our trucks'?” The witness stated that the reason for the telegram was to urge repossession of the trucks, since the indebtedness was past due.

Robinson testified that because of a loss of credit, he had been unable,to finance his business; that since March 3.1958, he had continued to operate by selling equipment, borrowing from relatives, borrowing on life insurance, and had been forced to ‘‘just scramble any way I could to get some working capital.” Appellee testified that he sold equipment to several dealers in order to obtain capital, including Fred Inmon of Southwest Truck Sales in Little Rock, to whom he sold equipment for a price much below the actual value. Inmon testified that he bought six trailers from Robinson, the first being purchased on March 3,1959, at a price of $3,500. Inmon stated that he sold this trailer for $5,000. The second was purchased on May 28th for which he likewise paid $3,500. Four others were purchased for $12,000. The witness placed the fair market value of the last five trailers at $5,500 to $6,000 each.

Appellants vigorously contend that there is no competent evidence to establish special damages, and that to be entitled to special damages, appellee must have shown (1) that damages sustained were caused solely by the publications, and (2) evidence of a specific nature must be offered to enable a jury to measure in dollars the amount of damages suffered. They point out, that in most instances, representatives of the companies who received the publications stated that these publications had no effect upon their relationship with Bobinson. Appellants lean to the view that any loss of business, or loss of credit suffered by appellee, was occasioned by the fact that Bobinson was ‘ slow pay, ’ ’ and they assert that he was already suffering reverses before the special notices were sent out. They further contend that, even though their first assertion be incorrect, appellee has shown no specific monetary loss; that the testimony relative to loss of business is of no value because this evidence was based on gross business with the several concerns; that a claim for damages cannot properly be based on gross figures because there are too many extraneous factors that would affect the amount of profit.

"We agree, in this case, that appellee’s damages cannot be based upon loss suffered from customers who were not subscribers to the service furnished by Dun & Bradstreet, and that the award made must be substantiated by proof of losses occurring from subscribers, because of the influence of these reports. We do not agree, however, that appellee was required to pinpoint, with the specificity urged by appellants, the monetary loss suffered by him, and to be suffered by him, in order to recover. According to Bobinson, his gross volume business with the Hill Company in 1957, and up until March 3,1958, was nearly $31,000, and he had handled no business for that company since that date. This was not denied. The witness testified that in 1957 he had a gross volume of business with the Cook Company of $3,500, Bit nothing after the aforementioned date. This was not denied. No figures were given, but he testified that he had previously hauled frozen poultry for Fairmont Foods of Omaha, but had handled no business after March 3. The proof relative to Schmieding Brothers showed that Bobinson was still handling business, but the shipments were of a less profitable nature, and Schmieding testified that this was because “there was a definite question in our mind as to his operation after we received the reports.” We thus have according to the undisputed evidence, a total loss of business from the Hill and Cook accounts, which had grossed $34,500 in the preceding year, as well as a loss of profitable business from the Schmieding account. It is true that these gross figures do not take into consideration the cost of operations, such as hauling, and other factors that must he ascertained before a net profit can be determined, i.e., net profit figures on these operations are not in the record. Appellee did endeavor to testify as to his amount of net loss in the Schmieding business, after making a general computation, estimating $2,275 per year, but this evidence was precluded by the court, which held that the profits must be shown on an individual truck-load basis. In Proto v. Bridgeport Herald Corporation, 136 Conn. 557, 72 A. 2d 820, the court permitted evidence of gross sales, and an estimate of the net profit on the gross sales. This seems logical, as a foremost concern of a businessman is the profit he makes, and most are likely familiar with the net profit derived from a particular type of business which is engaged in daily. See also 32 C.J.S., Evidence, § 503, p. 166. However, the jury did not have the benefit of this evidence, and there is no need in our discussing it, since we are only concerned with determining whether sufficient evidence did reach the jury to support its verdiet. Actually, we are of the opinion that the loss of customers is an element of damage, as much, or more so, than a loss of profits, for certainly one must have customers before he can ever make a profit. This point will be hereinafter further discussed, but we now discuss another element of damage, allegedly sustained by appellee, vis., loss of credit.

Nothing is more important to the success of a business than its ability to obtain credit, for but few concerns are able to operate on a cash basis, and a loss of credit is fatal to the average business. This would be particularly true in the type of operation owned by Robinson, where the failure to obtain trucks and hauling equipment would simply put an end to the enterprise. The old adage, “Nothing succeeds like success,” is certainly quite true, and likewise, nothing is more likely to bring about a complete failure of an undertaking than a belief on the part of ones’ creditors that the endeavor is failing. Everyone is willing to extend credit to the successful man; few will extend credit to the business which they believe to be tottering. Loss of credit has long been recognized as coming within special damages. As stated in 53 C.J.S., § 268 (b), p. 390:

‘ ‘ Thus loss of fuel and clothing previously gratuitously furnished, the refusal of civil entertainment at a public house, loss of a marriage, loss of substantial hospitality of friends or third persons, loss of a customer, or refusal of credit is sufficient evidence of special damages.”

See also 1 Harper & James, The Law of Torts, § 514, p. 389. We think there was sufficient evidence offered to justify a finding that Robinson had suffered a loss of credit from subscribers to the Dun & Bradstreet special reports. It is true that officials of the truck companies testified that the reports did not affect their attitude toward Robinson, but in view of their actions on receiving the reports, we think this was a question for the jury. As has been oft times stated, juries determine questions of fact. They pass on the reasonableness of evidence. They are privileged to accept or reject the testimony of a witness. They may believe some of his statements, and disbelieve others.

It will be noted in the citations quoted and mentioned in the preceding paragraph, that loss of customers is also an element of special damage. Though specific proof was not forthcoming that the Dun & Bradstreet reports were the sole cause of the loss of customers Hill and Cook, we think this evidence was likewise a strong circumstance to be considered by the jury. Of course, the very nature of this type of loss precludes definite ascertainment of the specific amount lost. Who can say how much business Hill & Company would have given Robinson in 1958 (after March 3rd) — in 1959 — in I960? Who can determine the volume of business that would have been transacted with Cook & Company in those same years — or the years to come? It would be manifestly unjust to deny recovery to one who had been damaged because the nature of his damages was not susceptible to dollars and cents proof. We like the logic expressed in the English case of Ratcliffe v. Evans, 2 Queen’s Bench (1892) 524:

“In all actions accordingly on the case where the damage actually done is the gist of the action, the character of the acts themselves which produce the damage, and the circumstances under which these acts are done, must regulate the degree of certainty and particularity with which the damage done ought to be stated and proved. As much certainty and particularity must be insisted on, both in pleading and proof of damage, as is reasonable, having regard to the circumstances and to the nature of the acts themselves by which the damage is done. To insist upon less would be to relax old and intelligible principles. To insist upon more would be the vainest pedantry. ’ ’

Let it also be borne in mind that counsel for all parties agreed during oral argument that no remand was desired, and the Court was asked to either affirm, or reverse and dismiss, this judgment in its entirety. We are of the view that, under this agreement, any special damage established by appellee would require an affirmance. Be that as it may, we deem the proof more than adequate to uphold special past compensatory damages in the amount of $10,000, and future special compensatory damages in the amount of $20,000.

Affirmed.

         According to the testimony of Holyfield, he asked Mrs. Lawrence “if there was anything to the rumor I had heard that Mr. Robinson was going out of business.”

       Appellee also originally cross-appealed, but the cross-appeal has been abandoned.

       According to Restatement of the Law of Torts, this rule has been modified either by constitutional or statutory enactment in a number of states. In several, the truth is by statute of a defense in a civil action unless it is published from “malicious motives”. In others, in addition to good motives, statutes require that the defamatory matter be published for “justifiable ends.” In still others, the publication must be made for the “public information” or in connection with a matter which is the “subject of public concern.” In our own case of Roberts v. Love, 231 Ark. 886, 333 S. W. 2d 897, we said: “Likewise, though the factual report appearing in the article was admittedly true (except that appellant alleged the term ‘legal technicality’ to be false), our conclusions are not based upon that premise, for we do not say unequivocally or dogmatically that one can never be libeled by a statement, even though true.”

         Actually, Robinson contended this communication was also libelous in that he testified he did not tell Mrs. Lawrence he had suffered no business reverses. Apparently, appellee’s theory is that creditors knew that he had suffered some losses, and that a denial by him would only strengthen their belief that the original notice was correct.

        Erbert & Stickler v. R. G. Dunn & Co., 12 F. 526 (this case was decided in 1882.) Cullum v. Dun & Bradstreet, Inc., 228 S. C. 384, 90 S. E. 2d 370. Johns v. Associated Aviation Underwriters, 203 F. 2d 208.

       Schmieding, when asked which notice he received the first day, replied, “The one where he had discontinued operations.” The court sustained an objection to this answer, but it is interesting, with reference to our discussion of point one, to note the interpretation placed on the notice received, by the subscriber.

       Emphasis supplied.

       The court said: “As regards special damages, which consisted of a claimed loss of profits in the plaintiff’s business, the defendant contends that the evidence did not justify the jury in finding that there was a causal relationship between the libel and any loss of business by the plaintiff and, in addition, that proof of actual loss of profits went no further than to be merely speculative. * * * There was evidence both that, immediately following the publication, the business done in the plaintiff’s store fell off in volume and continued to diminish until he sold the business in August and that after the publication the plaintiff failed to see in the store several customers whom he had been in the habit of seeing before. In view of the fact that the libel was one which was calculated to injure the plaintiff’s business, the jury might well have found that the libel was the cause of the loss of business. With reference to the amount of the loss sustained by the plaintiff, it is, of course, essential that such an amount be established with reasonable certainty. * * * However, that such damages are difficult of accurate determination does not prevent recovery of them. * * * So, in this case, the jury had evidence which it might have believed as to the gross sales made by the plaintiff for the few months before the libel * * * until he sold his business. Also there was testimony that his net profit before the libel was 20 per cent of the gross sales.”


text:
    Snyder v. Snyder.
    5-2307
    343 S. W. 2d 420
    Opinion delivered February 27, 1961.

      Bethell <& Pearce, for appellant.

      Martin L. Green and Hardin, Barton & Hardin, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a decree refusing to award her a divorce, Mrs. Snyder brings this appeal; and the only point urged for reversal is: “The preponderance of the evidence established that the defendant had been guilty of personal indignities such as to create in plaintiff grounds for divorce, and the Court erred in failing to so find.”

The parties were married in 1946; and are the parents of two boys, aged seven and four years, respectively. Mr. and Mrs. Snyder own and live on a farm of 97 acres; they have household goods, two automobiles, cattle, and other property. Mrs. Snyder formerly worked at various places to make payments on the farm; and Mr. Snyder is employed as an electrician, making take-home pay of approximately $112.00 per week, and in addition has an army pension of $19.00 per month. The Snyders have lived on the farm for about ten years and it seems an ideal place for growing boys; but, for some unsolved cause, Mr. and Mrs. Snyder seem unable to agree. They first separated some time in February 1960, and Mrs. Snyder obtained an order for support money for herself and children; but the parties “patched up” their difficulties at the time of the death of Mrs. Snyder’s brother, and resumed matrimonial relations. In June 1960, Mrs. Snyder ordered Mr. Snyder from the house, and in July she filed this suit for absolute divorce, custody of the children, support money, property rights, etc. For grounds of divorce the complaint alleged:

“Defendant has been guilty of such personal indignities to the plaintiff, habitually and systematically pursued, so as to render plaintiff’s condition in life intolerable, in that the defendant treated her with rudeness, contempt, studied neglect, has failed and refused to provide adequate support for plaintiff and her children, has absented himself from the home of the parties until very late hours, and has been unfaithful.”

The cause was heard by the Chancellor ore terms on August 30, 1960; and, as to the divorce, the decree recited: “The Court finds that the plaintiff has failed to establish competent proof of grounds for divorce, and that her complaint should be denied.” The decree awarded Mrs. Snyder the custody of the children, possession of the home and two acres of ground, one automobile, and also $45.00 per week support money for herself and children, plus attorney’s fees in the case. But Mrs. Snyder was dissatisfied because the decree failed to award her an absolute divorce; and she brings this appeal.

To review the testimony of the witnesses in the case would serve no useful purpose and might serve to prevent any possible reconciliation. From Mrs. Snyder’s testimony we might conclude all sorts of bad things about her husband; from Mr. Snyder’s testimony we might conclude that he was a patient, hard working, long suffering husband. The corroboration is extremely weak for either side. The testimony of which one of the litigants had the ring of sincerity! That is the question. We cannot hear the ring from the written page. This case affords a classic application of the well recognized statement that the Judge, seeing the witnesses, is in a better position to decide the credibility than is an appellate court, which merely sees the words on the page. We conclude that the preponderance of the evidence is not against the Chancellor’s decision.

We offer the observation that these parties “patched up” their difficulties once before, after a death; and possibly they will do so again without waiting for a tragedy. The two little boys need both a father and a mother. The parties made themselves “hostages to fortune” when they brought those children into the world. In saying these things, we are not without ample precedent. In Kientz v. Kientz, 104 Ark. 381, 149 S. W. 86, in affirming a decree which denied a divorce, Judge Frauenthal said:

“It would serve no useful purpose to detail the testimony relative to these charges, or to discuss the circumstances surrounding them, in order to show with whom the truth may rest . . . The marriage state cannot be considered as one of convenience, but it is one which has been entered into ‘for better or for worse’ and must continue for life unless sundered for the grounds named in the statute justifying its dissolution, which must be proved by clear evidence.”

In Malone v. Malone, 76 Ark. 28, 88 S. W. 840, in refusing a divorce to either party, Judge McCulloch said: “To our minds the evidence shows that both parties were somewhat at fault, and that both, by failure to exercise that ‘mutual forbearance and mutual forgiveness’ which the relation demanded, aggravated rather than tended to ameliorate their unhappy conjugal state.” In Arnold v. Arnold, 115 Ark. 32, 170 S. W. 486, in denying a divorce sought on the grounds of indignities, Judge Wood said: “As the writer once observed, upon somewhat similar facts,

‘A little confessed, a little endured,

A little forgiven, and all is cured, ’

duly practiced from the first by this now unhappy couple, would have kept closed forever the Pandora’s Box of matrimonial sorrows, from which relief is now sought. ’ ’

The decree of the Chancery Court is affirmed, with Mr. Snyder to pay all costs of all courts.


author: George Rose Smith, J. George Rose Smith, J.,

text:
    Linxwiler v. El Dorado Sports Center, Inc.
    5-2238
    343 S. W. 2d 411
    Opinion delivered February 27, 1961.
    [Rehearing denied March 20, 1961.]

      Bernard Whetstone, for appellant.

      Mahony & Yocum, for appellee.
   George Rose Smith, J.

At about five a.m. on September 26, 1958, Billy Linxwiler, a boy of eighteen, was accidentally shot in the throat by an employee of the El Dorado Sports Center, an all-night bowling alley. Billy’s father, the appellant, brought this action for his son’s injuries and for his own hospital and medical expense. The jury returned a verdict for $1,400 for the boy’s personal injuries but made no award to the father in his own right. Both parties have appealed.

Upon the direct appeal Linxwiler, both in his own right and as his son’s next friend, relies for reversal upon the rule that a plaintiff may complain of an inadequate judgment if the record discloses other error of a substantial and prejudicial nature. Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411. This verdict must fairly be regarded as inadequate. Young Linxwiler suffered much pain, underwent an operation, and spent two weeks in a hospital. The injury has resulted in a slight but permanent malfunctioning of his right eye. It is show without dispute that the medical and hospital expenses were more than $875. In view of the inadequacy of the verdict the appellant is entitled to assert other errors.

At the outset, however, the appellee insists that a procedural defect precludes the appellant from taking advantage of his strongest points for reversal. The asserted defect is that the appellant, in taking his appeal, designated a partial record and then failed to include in his statement of points relied upon (Ark. Stats. 1947, § 27-2127.5) some of the issues now argued in his brief. The appellee accordingly contends that these omitted points are not available to the appellant.

This position is not well taken, because the appellee itself filed a supplemental designation requiring that the complete record be brought up, which was done. In an unreported per curiam order entered on November 21, 1955, in Edwards v. Carter Oil Co., we held that an appellant who tendered his record so late that it could not be filed was nevertheless entitled to prosecute his appeal by using a complete record that the appellee had filed upon cross appeal. (That order is discussed in Stevenson’s Supreme Court Procedure [1956], p. 198.) By the same reasoning Linxwiler should be permitted to rely upon any point that he might have urged had he himself designated the entire record in the case. The appellant’s omission has not prejudiced the appellee and therefore should not be fatal to the appeal. Ark. Stats., § 27-2106.1.

Upon the merits we think the trial court fell into reversible error in giving, at the defendant’s request, three instructions defining the defendant’s duty of care if the jury should find that young Linxwiler was not an invitee, or business visitor. The facts must be briefly stated to make our position clear.

Before the accident Billy Linxwiler had been working at a bakery at night, getting off at three or four o’clock in the morning. Upon leaving the bakery he sometimes went to the Sports Center to bowl at the reduced rates which were offered during the late hours. On the night in question Billy went to the Sports Center without having definitely made up his mind to bowl. Pending this decision he stood at the appellee’s lunch counter and chatted with Lavelle Parker, a nineteen-year-old employee who was in charge of the bowling alley at night.

Just before the accident a policeman came in with his wife, and, as was customary, checked his pistol at the counter. Instead of putting the pistol away young Parker took it from its holster, removed the shells (so he thought), and cocked the weapon. Billy Linxwiler made some protest about the gun’s being pointed at him. As Parker attempted to let down the hammer his thumb slipped and the pistol went off, firing a cartridge still in the chamber and injuring Linxwiler.

Upon these essential facts the trial court instructed the jury in this language:

“The owner of a premises or place of business is under no duty to protect one who goes upon the premises or in the place of business as a volunteer for his own pleasure, privacy, or curiosity.

“ So in this case, if the plaintiff W. H. Linxwiler, III, did not on the night of the accident participate in any game or amusement in the place of business of the defendant and did not go to the place of business for such purposes but did, in fact, enter said place of business for his own benefit, pleasure, or curiosity then the only duty that the defendant owed him for his safety was not to purposefully or intentionally injure him after his presence in the place of business was discovered.”

This instruction should not have been given, for it embodies a rule of limited liability that is properly applicable to a landowner’s responsibility for the condition of his premises rather than to his liability for the conduct of his employees. This distinction, though not stated in so many words, is quite apparent in the three Arkansas eases cited by the appellee upon this point. In Aluminum Co. v. Walden, 230 Ark. 337, 322 S. W. 2d 696, the issue was the landowner’s liability for having maintained a lake that was hazardous to travelers. Garrett v. Ark. Power & Light Co., 218 Ark. 575, 237 S. W. 2d 895, involving high voltage lines that were dangerous to children. And in Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S. W. 30, the plaintiff’s injury resulted from a pre-existing condition in the cotton gin machinery rather than from contemporary negligence on the part of an employee. It may be observed that the principle underlying the instructions given in the case at bar is ordinarily discussed by text writers in connection with the landowner’s liability for the condition of his premises. Prosser on Torts (2d Ed.), §§ 76 and 77; Best., Torts, Ch. 13.

The condition of the appellee’s bowling center had nothing to do with Billy Linxwiler’s injury. Lavelle Parker was well aware of Billy’s presence. In this situation Parker and his employer owed Billy the standard duty of ordinary care, regardless of his indecision about whether to bowl or not. Best., Torts, §§ 336 and 341; Prosser, §§ 76 and 77. Upon the undisputed proof it appears that Billy was an invitee as a matter of law, but that fact had no bearing upon the appellee’s duty of care and should not have been made an issue for the jury.

Among several other points argued by the appellant we mention only the ones that are likely to arise upon a new trial. "We think the court was right in refusing to instruct the jury that Lavelle Parker was negligent as a matter of law. The plaintiff had the burden of proving that Parker’s conduct fell below the standard to be expected of a reasonably prudent man. The determination of that standard of care is peculiarly within the province of the jury, so much so that a directed verdict in favor of the plaintiff would be proper only in a most exceptional case, if ever. We are also of the opinion that the court was right in refusing to submit the question of punitive damages to the jury. The proof falls short of showing either that Parker acted with malice or that he acted with such a conscious indifference to consequences that malice may be inferred. Ark. & La. Ry. Co. v. Stroude, 77 Ark. 109, 91 S. W. 18, 113 A.S.R. 130.

On cross appeal the appellee contends that it was entitled to a directed verdict, upon the theory that Parker’s conduct in handling the pistol was a complete departure from the course of his employment, absolving the appellee from liability. We cannot approve this view. Even if we assume, without deciding, that Parker was acting entirely on his own in examining the weapon, it could still be found that he had returned to his duties and was acting for his employer in attempting to uncock the gun preparatory to putting it away. See Prosser, § 63. A jury question was presented.

Reversed.

George Rose Smith, J.,

on rehearing. In a petition for rehearing the appellee insists that our opinion overlooked, and tacitly overruled, our holding in American Ry. Exp. Co. v. Davis, 152 Ark. 258, 238 S. W. 1063. It is argued that in the Davis case we held, upon facts essentially similar to those in the present case, that the servant, in handling a pistol, had stepped aside from his master’s business, so that the latter was not liable.

The Davis case was not overlooked, but it does not support the appellee’s position. That case was reversed solely because the trial court had erroneously instructed the jury that if the master furnished the servant with a dangerous weapon such as a pistol the master would be liable “even though the use of the pistol was not in connection with the performance of any duty” at the time of the plaintiff’s injury. In reversing the case, however, we did not dismiss the action. Instead, it was sent back for a new trial, which of course was a recognition of the master’s possible liability. Indeed, that liability was explicitly confirmed upon the second appeal in the case, American Ry. Exp. Co. v. Davis, 158 Ark. 493, 250 S. W. 540. Thus the case, when carefully read, actually supports our present decision.

Rehearing denied.

McFaddin, J., dissents.