text:
    Cleveland UMBAUGH v. STATE of Arkansas
    5563
    463 S. W. 2d 634
    Opinion delivered March 1, 1971

      Daily, West, Core ir Coffman, for appellant.

      Ray H. Thornton, Jr., Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   J. Fred Jones, Justice.

By information filed by the prosecuting attorney in the Sebastian County Circuit Court, Cleveland Donald Umbaugh was charged with the crime of kidnapping, in that he did unlawfully, feloniously and forcibly take Joselyn Howard and carry her, against her will, from one place to another place in this state for the purpose of committing a felony. Umbaugh was found guilty at his trial before a Sebastian County jury and was sentenced by the trial judge to 30 years in the Arkansas Penitentiary. Umbaugh has appealed to this court and relies on the following point for reversal:

“The testimony of Mrs. Birde Smith involved solely a prior bad act allegedly committed by Appellant. This testimony was wholly irrelevant to the charge for which Appellant was on trial, was highly inflammable and its admission resulted in prejudicial error.”

The evidence is in conflict as to the felony intended, but there is little question that one was committed. On the afternoon of March 25, 1970, the prosecuting witness, Joselyn Howard, a 17 year old Negro high school girl (small for her age), was walking along the sidewalk on her way home from school. The appellant, a 22 year old married white man, and his 19 year old white companion, Darrell Wayne Hurley, were sitting in a parked automobile owned by the appellant as Miss Howard passed by. They stopped Miss Howard, took her into the automobile and drove to a secluded area known as “Wildcat Mountain” near the Arkansas River and there they both, according to their own testimony, had sexual relations with her.

Miss Howard, or Joselyn, as she will hereafter be called, testified that as she passed the alley where the automobile was stopped, Hurley got into the back seat as Umbaugh seized and gagged her; forced her into the front seat of the two-door automobile and locked the door. She testified that he then drove to near the Arkansas River where he forced her to disrobe and where he raped her in the front seat of the automobile. She testified that she lost consciousness during the assault by Umbaugh and does not know whether Hurley also assaulted her or not; but that when she regained consciousness, Umbaugh had placed a “rag” around her face and was pulling her from the automobile. She says that Umbaugh then forced her down the hill toward the Arkansas River and said that he was going to throw her into the river. She testified when Umbaugh ordered her to wade into the water, she kicked her shoes off and started running. She says that she ran through some water and fell down and that while she was on her knees in the water, Umbaugh picked up a rock and threw it down near her and directed her on toward the river. She says that she again got away from Umbaugh and Hurley and that they both ran after her and tried to catch her. She says that while they were chasing her they were also throwing rocks at her, but that she finally e'luded them and called the officers from the home of Margaret Cook, who lived in the first house she came to.

Hurley testified for the state. He testified that he and Umbaugh had been drinking beer and that Umbaugh asked Joselyn if she wanted a ride; that when she declined and stated that she only lived a short distance from where they were, Umbaugh got out of the car and ordered Joselyn into the automobile. He testified that Joselyn got into the automobile; that Umbaugh locked the car door and drove to “Wildcat Mountain.” The rest of Hurley’s testimony corroborated that of Joselyn. He testified that he also had sexual relations with Joselyn after Umbaugh did. He testified that Umbaugh then blindfolded Joselyn and led her away from the car and told her he was going to kill her. He testified that Umbaugh then told Joselyn that he was going to throw her into the river and drown her, but that she got away by outrunning Umbaugh.

Umbaugh’s statement given to the police was read in evidence. He admitted that he picked Joselyn up in his automobile; that he and Hurley then took her to “Wildcat Mountain” where they both had sexual relations with her. He stated that she willingly entered the automobile and went with them upon Hurley’s invitation, and that she affirmatively consented to sexual relations.

Birtie Smith testified, over the appellant’s objections, that her brother married Umbaugh’s sister and that while visiting her brother in December of 1968, Umbaugh offered to drive her and her three year old child to their home at Arkoma, Oklahoma, in Umbaugh’s automobile. She testified that instead of driving her home, Umbaugh drove to “Wildcat Mountain” near the Arkansas River and there he forced her to have sexual relations with him by threatening to kill the child. She testified that Umbaugh actually did choke the child until she finally submitted to him.

Umbaugh testified in his own defense. The substance of his testimony was that Joselyn, as well as Mrs. Smith, willingly accompanied him to “Wildcat Mountain” and willingly engaged in sexual relations with him. He admits blindfolding Joselyn and telling her that since they had no further use for her, he was going to throw her into the Arkansas River and drown her. He admits throwing rocks at her and trying to overtake her when she finally escaped. But, he testified that this was all in fun just to torment, tease and scare Joselyn, and that he intended no harm to her at all. He did admit, however, that he was no longer amused by his conduct.

The appellant has cited 15 cases in support of his contention that the trial court committed reversible error in admitting the testimony of Mrs. Smith. We have examined all the cases cited by the appellant and they all turn on the nature and facts of the case being tried, and the purpose for which the evidence of prior acts were offered. We will not attempt here to analyze and distinguish all the cases cited because the various categories attending the most of them were thoroughly discussed in the two latest ones; Moore, et al v. State, 227 Ark. 544, 299 S. W. 2d 838; Alford v. State, 223 Ark. 330, 266 S. W. 2d 804.

In Alford, as well as in Moore, the extraneous evidence was offered to show intent in connection with the crime charged, but intent was not an actual element in either case. In Alford the charge was rape, the conviction was for rape, and the penalty was death. There was no question as to identity of the defendant, there was no question as to his intent, and there was no question that his intent was carried out under the persuasive blade of a hunting knife. The defendant did not testify. The facts in Alford bring that case squarely within the rule stated in one paragraph of that opinion, as follows:

“No one doubts the fundamental rule of exclusion, which forbids the prosecution from proving the commission of one crime by proof of the commission of another. The State is not permitted to adduce evidence of other offenses for the purpose of persuading' the jury that the accused is a criminal and is therefore likely to be guilty of the charge under investigation. In short, proof of other crimes is never admitted when its only relevancy is to show that the prisoner is a man of bad character, addicted to crime.”

In another paragraph in Alford we also said:

“The rule is designed to protect the innocent, but it is often invoked as a basis for excluding any evidence that tends to show the commission of another offense. We have repeatedly rejected unfounded appeals to the protection of the basic rule of exclusion. If other conduct on the part of the accused is independently relevant to the main issue—relevant in the sense of tending to prove some material point rather than merely to prove that the defendant is a criminal—then evidence of that conduct may be admissible, with a proper cautionary instruction by the court. 'While the principle is usually spoken of as being an exception to the general rule, yet, as a matter of fact, it is not an exception; for it is not proof of other crimes as crimes, but merely evidence of other acts which are from their nature competent as showing knowledge, intent or design, although they may be crimes, which is admitted. In other words, the fact that evidence shows that the defendant was guilty of another crime does not prevent it being admissible when otherwise it would be competent on the issue under trial.’ State v. DuLaney, 87 Ark. 17, 112 S. W. 158.”

In analyzing the various categories where proof of other crimes is offered in evidence, such as to show motive, to rebut the plea of an alibi, etc.; as to the issue of intent in Alford, we said:

“The issue of intent is theoretically present in every criminal case, and for that reason it is here that we are most apt to overlook the basic requirement of independent relevancy. * * * What has happened is that the emphasis has shifted from evidence relevant to prove intent to evidence offered for the purpose of proving intent, by showing that the defendant is a bad man. If this transfer of emphasis is permitted the exclusionary rule has lost its meaning.
* # *
Quite evidently this category includes the many charges of assault with intent to commit a specified crime, for here the State must prove not merely the assault but also that it was made with a certain intent. Hence, since the accused’s purpose is at issue, proof of other similar offenses is independently relevant. Stone v. State, 162 Ark. 154, 258 S. W. 116; Hearn v. State, 206 Ark. 206, 174 S. W. 2d 452; Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37, Wigmore on Evidence (3rd Ed.), § 357.
*.y. TP IP
Thus our cases very plainly support the commonsense conclusion that proof of other offenses is competent when it actually sheds light on the defendant’s intent; otherwise it must be excluded. * * *”

In the Moore case, supra, the four defendants were convicted of murder in the perpetration of a robbery. They confessed the crime and led the officers to the scene of the crime and to the decomposed body of their victim. The trial court accepted into evidence testimony that two of the defendants had beaten and robbed another man, under similar circumstances, five days after the murder for which they were being tried. In reversing the conviction for error in admitting the evidence, this court again reviewed the decisions on the point but added nothing to the opinion in Alford. Intent was not an element involved in either case.

In 2 Wigmore on Evidence, 3rd Ed., § 302 the reasoning and basis for the admission of prior criminal acts as evidencing intent is set out in the following language:

“. . . similar results do not usually occur through abnormal causes; and the recurrence of a similar result (here in the shape of an unlawful act) tends (increasingly with each instance) to negative accident or inadvertence or self-defence or good faith or other innocent mental state, and tends to establish (provisionally, at least, though not certainly) the presence of the normal, i. e. criminal, intent accompanying such an act; and the force of each additional instance will vary in each kind of offense according to the probability that the act could be repeated, within a limited time and under given circumstances, with an innocent intent. The general canon of logical inference already examined {ante, §§31, 32) is here applied and illustrated.
Such is the theory of evidencing Intent, as expounded, in various phrasings and for all sorts of offenses, in repeated judicial utterances.
* * *
It will be seen that the peculiar feature of this process of proof is that the act itself is assumed to be done,—either because (as usually) it is conceded, or because the jury are instructed not to consider the evidence from this point of view until they find the act to have been done and are proceeding to determine the intent. This explains what is a marked feature in the rulings of the Courts, namely, a disinclination to insist on any feature of common purpose or general scheme as a necessary requirement for the other acts evidentially used. It is not here necessary to look for a general scheme or to discover a united system in all the acts; the attempt is merely to discover the intent accompanying the act in question; and the prior doing of other similar acts, whether clearly a part of a scheme or not, is useful as reducing the possibility that the act in question was done with innocent intent. The argument is based purely on the doctrine of chances, and it is the mere repetition of instances, and not their scheme, that satisfies our logical demand.
Yet, in order to satisfy this demand, it is at least necessary that prior acts should be similar. Since it is the improbability of a like result being repeated by mere chance that carries probative weight, the essence of this probative effect is the likeness of the instance.
4t. «it -ii. w «Ir w
It is just this requirement of similarity which leaves so much room for difference of opinion and accounts for the bewildering variances of rulings in the different jurisdictions and even in the same jurisdiction and in cases of the same offense. Some judges incline to treat the judicial test of probative value as identical with the common-sense test, and to admit such instances as bear a similarity liberally interpreted by the standard of every-day reasoning. Other judges set their faces firmly against every instance which is not on all fours with the offense in issue, regardless of the consideration that justice consists quite as much in protecting the public against evil doers as in showing mercy to those whose guilt has been more or less skillfully concealed. It is hopeless to attempt to reconcile the precedents under the various heads; for too much depends on the tendency of the Court in dealing with a flexible principle. One Court will be certain to exclude everything that is not too clearly probative for even technical quibblers to oppose and sometimes will exclude even that. Another Court will accept whatever has real probative value. Something, however, may perhaps be gained by realizing, as to the former, that it is not the law, nor precedent, nor principle, nor policy, that will account for such rulings, but merely a rooted inclination to take the stricter view and a preference to err in favor of defendants and against innocent victims.”

In the case at bar, intent to commit a crime (rape) is a primary element of the kidnapping charge under which the appellant was tried and for which he was convicted. The prosecuting witness and the appellant’s accomplice testified that the appellant forcibly and without her consent transported her to a secluded area on “Wildcat Mountain” and there put her in fear of her life and ravished her. The appellant testified that the prosecuting witness voluntarily accompanied him to “Wildcat Mountain” and voluntarily submitted to him.

Now, under these circumstances, if the state had proven by the testimony of ten other women that the appellant had also in recent months taken them to this “Wildcat Mountain” against their will and there ravished them, there would be little question but that such testimony would be admissible; not to prove the crime of rape, or as for that matter, to prove that the prosecuting witness was taken to “Wildcat Mountain” by force or against her will, but for the purpose of showing the appellant’s motive and intent in taking he*- to the secluded area on “Wildcat Mountain.”

Hearn v. State, 206, Ark. 206, 174 S. W. 2d 452, was a case in which intent was an element in the crime involved. The defendant in that case was convicted of assault with intent to rape. The prosecuting witness definitely identified the defendant and testified that sometime after 10 o’clock at night she was proceeding alone to her home and “he walked up behind me. I heard somebody starting to speak, I looked up and kept thinking I recognized him and didn’t. He said, ‘How far are you going?’ I said, ‘I live right here.’ That was Mr. Tanner’s house. Then he reached up with his hands and put them around my throat, attempted to choke me, and I screamed. Then he said something as he turned me loose and ran and I don’t know what it was.” The questionable evidence in the Hearn case was the testimony of another woman who testified that about two months previously the appellant had torn a screen from a window and had come to her bedroom where she was sleeping; grabbed her and started to twist her leg and that when she screamed, the defendant ran. Another witness testified that about two months before the act involved in the case being tried, he had seen the defendant one night peeping in the window of the home of the witness’s brother and that he had taken the defendant and turned him over to the officers. This court affirmed the conviction in Hearn and approved the admission of the evidence as to the prior acts. To the same effect is Gerlach v. State, 217 Ark. 102, 299 S. W. 2d 37, where the appellant was convicted of an assault with intent to rape one Mabel Reeder, who was a 12 year old child.

The appellant in the case at bar admitted, both in his pretrial statement and in his testimony, that he was 22 years of age, married and had a little girl of his own. He admitted that he picked up the prosecuting witness whom he had never seen before, and took her in his automobile out to “Wildcat Mountain” and that she was agreeable to, and acquiesced in, everything that happened to her. He does not say what his intent was in picking her up in the first place or in taking her to “Wildcat Mountain.” He does state that his intent in threatening to kill and drown her and in throwing rocks at her was simply to torment, tease and scare her, and he explains his intent in attempting to take her into the Arkansas River was to wash mud from her clothing, as well as his own. He explains his intent in running after her when she finally eluded him, was to get her to return to the automobile so that he could take her home.

Even without the testimony of Mrs. Smith, there was ample evidence to sustain the conviction. The testimony of Mrs. Smith was an anticlimax to what the jury had already heard even before the appellant testified. Yet, the jury only found the appellant guilty as charged and left it to the trial court to fix the punishment when the jury could have sent him to the penitentiary for 99 years. So it would appear from the verdict that the minds of the jurors were not greatly inflamed by the testimony of Mrs. Smith.

It is not a question at this point whether the state should have offered the testimony of Mrs. Smith or whether the trial court should have admitted it. The question is whether the acceptance of the evidence constituted reversible error.

According to Mrs. Smith she is even related by marriage to the appellant and when she accepted his offer to take her to her home in Oklahoma, he took her instead via a “short cut” to “Wildcat Mountain” and there he treated her as he did Joselyn, except he didn’t throw rocks at her and threaten to drown her after he had accomplished his purpose.

We are of the opinion that the testimony was admissible, under all the facts of this case, for the limited purpose it was offered; and that the trial court did not commit reversible error in admitting it under the proper instructions given by the court as to its use and purpose.

The judgment is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    Pearline SUTTON v. Felix A. SUTTON
    5-5471
    463 S. W. 2d 644
    Opinion delivered March 1, 1971

      William E. Johnson, for appellant.

      Ovid T. Switzer, Bruce D. Switzer and Tom Tanner, for appellee.
   Conley Byrd, Justice.

Appellant Pearline Sutton questions the sufficiency of the evidence and the corroboration to sustain the award of a divorce to appellee Felix A. Sutton on the ground of personal indignities. No property rights are involved, on this appeal.

Felix testified that he and Pearline were married in 1950 and had one daughter who is now of age. When they married, they moved into a house with his parents and were still living with his father and mother when Felix left on July 5, 1969. When his daughter was old enough to be in a room by herself, Pearline moved into the daughter’s room and stayed almost two years. During that time they rarely had marital relations. When Pearline moved back into his room, their relations did not improve. He then told his wife that something had to be done, or he would leave when his daughter grew up. In 1960 he took a job as a timber contractor. His work hours were from 5:30 A.M. to 9:00 or 10:00 P.M. About the same time his wife’s brother was permanently injured while working ’in the timber woods. Felix helped the brother’s family take him to hospitals for treatment. In addition, his logging business required record keeping, food supplies -, for his timber cutters and storage for his equipment. The brother’s wife had had some college bookkeeping courses and also ran a grocery store. Felix arranged for the brother’s wife to keep his books and to make out his payrolls and tax returns. Also his .men assembled at the store each morning and parked his equipment there each evening. This arrangement continued after the brother’s death. During the last few years of their marriage Pearline falsely accused him of going with other women. About a year before he left, she refused to have marital relations with him. At that time he moved into a separate room.

Jim Sutton, Felix’s father, testified that on more than, one occasion he had heard Pearline accuse Felix of adultery. On cross-examination Jim Sutton was specific as to only one accusation some two years before the date of" trial.

Pearline testified that she went to bed with her daughter because the daughter was scared. That, even then, she did not intend to stay but would drop off to- sleep before Felix went to bed. She corrected the matter by getting a night light. Pearline also stated that people in the community had told her that Felix and her, sister-in-law were having an affair. On August 5, 1968, Felix came home about 2:00 A.M. That night he wanted to make love and she refused. In refusing she told him that if she couldn’t be his wife, she wasn’t going to be his mistress. The next night Felix moved into a separate room. On cross-examination she readily admitted that she had accused Felix of having an affair with her sister-in-law.

Peggy McGaha, appellant’s niece and the daughter of appellant’s brother, testified that appellant did not come around while her father lay confined as an invalid. She considered the gossip that her mother and Felix were haying an affair ridiculous. According to her, in that community gossip without any basis was not uncommon.

Thé Chancellor here had the opportunity to observe the parties and their demeanor in the court room. Admittedly Pearline did not continuously and systematical-' ly accuse Felix of “going with” her sister-in-law but she did allow a rumor, supported by her uncorroborated suspicion, to create an “Iron Curtain” between her and Felix. As a result the marriage had been an empty shell for more than a year before the separation. Under such circumstances we are unwilling to say that the Chancellor’s findings resulting in the decree of divorce are not supported and corroborated by the weight of the evidence.

Affirmed.

Harris, C. J. and Fogleman & Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I do not find any evidence of grounds of divorce, much less corroboration of appellee’s testimony. I am unable to recognize the evidence which shows indignities to the person, which I understand to be a course of conduct evidencing settled hate, alienation and estrangement, habitually and systematically pursued by one spouse, which renders the condition in life of the other spouse intolerable. ; See Settles v. Settles, 210 Ark. 242, 195 S. W. 2d 59.

The action was based upon appellee’s charge that appellant had accused him of running around with her brother’s wife and had denied hint conjugal relations.

These parties were married December 31, 1950. Appellee said that they began having difficulties soon after their marriage when their child was two or three years old. He claimed that the wife then moved into the child’s room for two years. She then moved back in with him, but even though he claimed that their relationship did not improve, he did not move into another room until a year before the separation. Five days after leaving appellant without notice, appellee also left Louisiana and came to Arkansas.

His testimony to support his allegation relating to accusations was the simple statement that during the last few months of their marriage, Mrs. Sutton had accused him of going with other women. He could not remember the dates on which she made these accusations, but said that the first such accusation was made five or six or seven years ago. He said that only a month or two before he left, while they were in bed together, she said he had no right to be her husband because he had been running around with other women. He said that one other time about a year earlier she accused him of running around with a woman, but he couldn’t recall any details. He could not recall any other specific incident where there was an accusation. According to him, she never accused him in front of other people, and he did not discuss it with anyone or know of anyone who heard the accusations.

Appellee said that he and his wife spent little time together during the last year. He explained that he went to work at 5:00 a.m., and he was often home late because of his job. He said he didn’t spend much time with her on weekends because they had things to do. Mrs. Sutton and their daughter usually went to church on Sunday, but he hadn’t gone with them for years. He would go fishing or do other things. He admitted that he made no effort to get things straightened out with his wife. He said he told her several years ago that unless some changes were made, he was going to leave when their daughter was grown, and he did. He admitted that she was no more at fault than he. He doesn’t feel that she hates him, and he doesn’t hate her. He admitted that she did not exhibit hate toward him or deliberately try to do evil. He also admitted that it was possible that the time he spent with his wife’s sister-in-law might have given some reason for the suspicions expressed by Mrs. Sutton.

Appellee’s father’s testimony was vague. On direct cross-examination, he only said he knew that the couple had experienced some difficulties and that he had heard appellant accuse his son of going with her sister-in-law. It was brought out on cross-examination that this occurred two years earlier, before appellant’s brother died. He said Mrs. Sutton only said she didn’t think it was right for him to do that. He only heard a little bit of conversation between them, and described it as not being anything much. On redirect examination, he said he had heard Mrs. Sutton accuse Sutton more than once clear up to the separation, but then admitted, on recross-examinatibn, that he really couldn’t say that she had accused him more than the one time.

Significantly, the chancellor found that Mrs. Sutton did not continuously and systematically accuse her husband of “going with” her sister-in-law, but had allowed a rumor supported by her suspicion to create an “Iron Curtain” between her and her husband, causing the marriage to become an empty shell. He found authorities relied upon by appellant persuasive and said that they would probably be followed if there was any evidence of possibility of reconciliation. The issue of lack of sexual relationship was noted but not considered by the trial court.

Among the authorities relied upon by appellant to which the chancellor referred was Smiley v. Smiley, 247 Ark. 933, 448 S. W. 2d 642. This is probably the latest expression of the court on the ground for divorce relied upon here. We there reiterated the long standing rule that in order to sustain this ground for divorce there must be clear evidence of unavoidable and unendurable evils incapable of relief by reasonable exertion and of settled hate, enduring alienation and estrangement.

Sutton’s testimony itself casts grave doubt upon the unavoidability of the evils of which he complains. He has made no effort to conduct himself in a manner which might allay the suspicions of his wife which he admits are not unreasonable, though he claims total innocence. Not only has he failed to show that the evils of which he complains cannot be relieved by reasonable exertion, he admits that he had made no effort at all. His admission that the situation was as much his fault as hers should settle this matter and bar the relief he is getting. Where the parties are equally at fault, there must at least be something that makes cohabitation unsafe before the courts will interfere. Meffert v. Meffert, 118 Ark. 582, 177 S. W. 1.

By his own testimony there is no evidence of any hate. The chancellor found that the conduct relating to the accusations was not systematically and habitually pursued, thus totally eliminating a primary ingredient of this ground of divorce. Preas v. Preas, 188 Ark. 854, 67 S. W. 2d 1013; Sutherland v. Sutherland, 188 Ark, 955, 68 S. W. 2d 1022.

Other language of Meffert is pertinent. There we sustained the denial of a divorce upon somewhat similar evidence. We said:

There appears to have been nothing in the conduct of the husband with the member of the choir referred to in this record other than that which may be characterized under the well-known term, “flirting.” Still the husband persisted in his attention to her after he knew that his wife objected to it. He knew that his wife’s condition was such that she was easily excited and, under the circumstances, he should have refrained from paying any further attention to another woman, but should have devoted his life to his wife and children.

In Preas there is also language appropriate to this case:

In the case at bar, there is nothing in the testimony of Preas tending to show that the acts of his wife complained of arose from any fixed malevolence or settled hate, but the proper inference is that her conduct was occasioned by a physical and mental condition caused largely by his own acts.

In Sutherland v. Sutherland, supra, we held that a few trivial instances of petulance were not sufficient to constitute grounds for divorce. We further said:

The most charitable view of the testimony presented in this record in behalf of appellee is to say that both parties were somewhat in fault, and that both, by failure to exercise that mutual forgiveness which the relationship demanded, aggravated, rather than tended to ameliorate their conjugal state. Had the parties to this unfortunate marriage heeded the admonitions of this court, “A little confessed, a little endured, a little forgiven and all is cured,” as announced in Arnold v. Arnold, supra, this now unhappy couple would be enjoying the associations usually consequent to the marriage status.

Furthermore, accusations of infidelity, in order to constitute any basis for this ground for divorce must have been not only false, but with the intent to wound, and are not to be treated as indignities if based upon doubts and suspicions reasonably born of appearances. Cooper v. Cooper, 223 Ark. 235, 265 S. W. 2d 4. See also, Relaford v. Relaford, 235 Ark. 325, 359 S. W. 2d 801.

This is clearly not a case where unfounded accusations were made in conversations with others as was the case in Dennis v. Dennis, 239 Ark. 384, 389 S. W. 2d 631; and Relaford v. Relaford, supra. I repeat that appellee’s own testimony bars any relief to him. It is not a matter of credibility of witnesses as appellee suggests.

Little attention need be given the question of corroboration. While it may be slight in a case clearly not collusive, it must have some substance. The isolated instance of which appellee’s father knew certainly does not meet the test any more than did the corroborating testimony about isolated instances we rejected in reversing a divorce decree in Smiley v. Smiley, supra. No resort can be had to appellant’s testimony or admissions for corroboration. Stearns v. Stearns, 211 Ark. 568, 201 S. W. 2d 753.

Society’s interest in the preservation of marriages seems to me to be as great as ever. The many assaults being made upon the institution seem to me to intensify that interest. Our society will not fall with the result of one divorce case. Yet when we of the judiciary fail to regard established principles, a process of erosion is accelerated. There may come a day when hope of reconciliation or its lack determines the results in divorce cases. We have said that futility of any such hope coupled with utter incompatibility is not sufficient. Davis v. Davis, 163 Ark. 263, 259 S. W. 751. If this principle has become obsolete and the preservation of marriage ties is to depend upon hope of reconciliation, the legislative branch of this government should amend our laws on grounds for divorce to so state.

Unlikelihood of reconciliation has, on occasion, been considered by the courts when grounds for divorce have been shown by one party or the other or both. Edwards v. Edwards, 222 Ark. 626, 262 S. W. 2d 130; Ayers v. Ayers, 226 Ark. 394, 290 S. W. 2d 24. It is inappropriate here.

I would reverse this decree.

I am authorized to state that Harris, C. J. and Jones, J., join in this opinion.


author: Conley Byrd, Justice.

text:
    Lois ROGERS v. STATE of Arkansas
    5560
    464 S. W. 2d 56
    Opinion delivered March 1, 1971
    [Rehearing denied March 29, 1971.]

      Jeff Duty, for appellant.

      Ray H. Thornton, Jr., Attorney General; Mike Wilson, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Lois Rogers was tried before the court, sitting as a jury, upon a grand larceny charge. The trial court found appellant guilty of a misdemeanor in the taking of a 1969 Chevrolet truck from the Skull Creek D-X Station on or about the 12th day of May, 1970.

Appellant contends that the judgment of conviction is void on its face. We do not agree. Larceny is defined by Ark. Stat. Ann. § 41-3904 (Repl. 1964), as “the taking and removing away any goods or personal chattel. . . with intent to steal the same. . .” By Ark. Stat. Ann. § 41-3907 (Repl. 1964), larceny is a felony if the value of the property taken is more than $35 and a misdemeanor if less than $35. In Rogers v. State, 248 Ark. 696, 453 S. W. 2d 393, we refused to take judicial notice of the value of a vehicle. Thus upon failure to prove the value of the vehicle, appellant could still have been found guilty of a misdemeanor upon proof of the taking with intent to steal. As we read the record it is sufficient on its face to show that the trial court so found.

Affirmed.


author: Frank Holt, Justice.

text:
    GRAY’S BUTANE WHOLESALE, INC. v. ARKANSAS LIQUEFIED PETROLEUM GAS BOARD
    5-5446
    463 S. W. 2d 639
    Opinion delivered March 1, 1971

      Wright, Lindsey ir Jennings, for appellant.

      Paul Schmidt and Warren Bullion, for appellee.
   Frank Holt, Justice.

Appellant corporation applied for a Class 1 Permit to operate a retail liquefied petroleum gas outlet designed to service an area of 2,490 square miles (later revised to 2,060 square miles) surrounding Brinkley, Arkansas. The organizer and principal stockholder of appellant corporation is Mr. Edwin Gray who is also the owner and operator of other liquefied petroleum businesses and a former member of appellee Board. Mr. Gray testified in behalf of appellant corporation, and two witnesses testified in behalf of protestants, at a hearing before the Board which resulted in an order denying the application. Appellant then appealed by filing with the circuit court a petition to review the action of the Board. From a judgment by the circuit court affirming the order of the Board, appellant brings this appeal.

The thrust of appellant’s argument for reversal is basically that there is no substantial evidence to support the findings of the Board. It is true that orders of administrative boards are to be reversed if not supported by substantial evidence of record [Ark. Stat. Ann. § 5-713 (Supp. 1969)]; however, the position of the Board is simply that appellant “has not submitted sufficient evidence of adequate safeguard and protection of the public to justify the granting of a permit. . . as applied for.”

Two of the Board’s findings, for example, are:

The Board does not believe that the safety of the public is adequately protected and safeguarded by one serviceman in an area of two thousand and sixty square miles.
Applicant would start business with one or two trucks.

Appellant first attacks these findings on the basis that there is no evidence that one serviceman and one or two trucks could not adequately service the area. But this evades the real issue; there is no burden on the Board to present evidence that the proposed personnel and equipment are not adequate, rather it is appellant’s burden to demonstrate to the satisfaction of the Board that the operation will assume safety to the public. We have observed on a prior occasion: “The safety of the public and the assurance that the applicant can render competent service are by Act 31 [Ark. Stat. Ann. §§ 53-701—729 (Supp. 1969)] made primary; the right of an individual to possess a permit is declared secondary.” Summers Appliance v. George’s Gas Co., 244 Ark. 113, 424 S. W. 2d 171 (1968).

Appellant then argues that there is no evidence that it intends to begin business with only one serviceman, particularly in light of Mr. Gray’s testimony that he can “move in” qualified personnel, as the needs arise, from other gas outlets which he owns and operates in the state. However, this testimony reflects that business would be commenced with “a serviceman”; it was never indicated that more than one serviceman would initially be employed. Again, the asserted argument incorrectly imposes some illusive type of burden upon the Board, as a condition of denying the permit, to offer proof of the absence of that which it is properly appellant’s duty to demonstrate the presence of— i. e., adequate safeguard and protection of the public. The possibility of moving in qualified personnel from other outlets lacks significance unless it is shown this could be accomplished without jeopardizing the safety of its other operations. As the Board correctly found, this showing was not made.

Similarly, appellant contests the finding that:

The Board does not consider the safety of the public adequately protected by the employment of a safety supervisor who does not live in the district and who flies into the district from some other district even though the flight may be made in one hour.

Appellant argues “there is absolutely no evidence in the record that the safety of the public would be in any manner affected by the residence of the safety supervisor.” Once again the burden is appellant’s to demonstrate the contrary. Moreover, it does not seem unreasonable that the Board should be skeptical about the efficiency and effectiveness of a “Safety Supervisor,” as described in § 53-723 (A) (6) (Supp. 1969), who could be on the scene only after a one hour flight plus time to and from the airport, should weather and availability of air transportation permit.

The tenor of appellant’s argument appears to reflect an underlying presupposition that mere compliance with the mandatory provisions of the Liquefied Petroleum Gas Board Act [§§ 53-701—729] ipso facto assures safe operation and, therefore, absent a “clear and convincing showing of lack of safety,” entitles an applicant to a permit. Appellant expressly states:

The fulfillment of the mandatory requirements in and of itself assures that [appellant] will conduct a safe, efficient retail outlet. This does not mean to imply that the Liquefied Petroleum Gas Board has no investigatory responsibilities after the mandatory requirements have been fulfilled. The Act clearly provides to the contrary. It is submitted, however, that compliance with the mandatory provisions forms a solid base for a safe operation. A denial of a permit after compliance with the mandatory provisions should be done only upon a clear and convincing showing of lack of safety. Compliance with the mandatory provisions of the Act by itself entitles [appellant] to the permit for which [it] has applied, because there was no showing of lack of safety at the hearing before the Board.

This position is not well founded for two reasons. First, as previously indicated, it erroneously shifts onto the Board the burden of establishing that the proposed retail operation would be detrimental to public safety. Secondly, it significantly narrows, if not completely divests, the Board of its recognized discretion which is so necessary for its effective functioning and proper discharge of its responsibilities. It appears that the members of the Board are experienced in the liquefied petroleum industry and possess an expertise with reference to their duties and responsibilities. If mere compliance with all mandatory requirements were sufficient to entitle an applicant to a permit, then the Board would have no discretionary powers and, therefore, there would be no need for the Board. We have said in Summers Appliance v. George’s Gas Co., supra:

The discharge of the enumerated responsibilities, as well as the others pertaining to issuing a Class 1 Permit, are not purely ministerial acts. Most of them require the exercise of considerable judgment and discretion.

Of course, this is not to be interpreted as granting the Board license to arbitrarily and capriciously exercise its powers.

We do not think that the Board abused its discretion in the case at bar, nor do we find merit in appellant’s contention that the Board’s findings were not supported by substantial evidence.

Affirmed.

Jones, J., dissents.


text:
    Howell ALLEY and Louella Alley HASTINGS v. Joe MARTIN
    5-5449
    464 S. W. 2d 591
    Opinion delivered March 1, 1971
    [Rehearing denied April 5, 1971.]

      Elbert S. Johnson, for appellants.

      Gardner ir Steinsiek, for appellee.
   Frank Holt, Justice.

This is a boundary line dispute between adjoining landowners. Appellee, who owns the southern or “lower” tract, brought suit in equity to enjoin appellants, owners of the northern or “upper” tract, from trespassing upon a 3S-foot-wide strip of land which runs along and inside of the southern edge of the upper tract. Appellee claims ownership of this strip by adverse possession, whereas appellants claim it as a part of their upper tract by warranty deed. From a decree apportioning the strip of land between the parties and enjoining further trespass, appellants bring this appeal. For reversal appellants contend that the decree is contrary to the law and the evidence and that the court erred in refusing the appellants’ motion for a new trial. Basically, the appellants contend for reversal that the findings of the chancellor are against the preponderance of the evidence. We cannot agree.

About 45 years prior to this action, the two tracts constituted a single parcel. The then owner excavated a drainage ditch traversing, in an east-to-west direction, the half-mile width of that parcel. Thereafter, upon .purchasing the upper tract in 1945, appellants’ predecessor in title caused a survey to be made which revealed that the boundary of the upper tract extended from approximately 25 to 30 feet south of the drainage ditch. Since the severed southern strip of this upper tract was not convenient to farm, it had been, prior to this 1945 purchase, converted into a utility roadway servicing both the upper and lower tracts. Appellants continued, as did their predecessor in title, to use the strip for this purpose.

Appellee purchased the lower tract in 1969, apparently under the misconception that its northern boundary extended to the drainage ditch. He instructed his tenant farmer to plow up the roadway and to plant crops up to the ditch. Appellants thereupon caused another survey to be made which reestablished their southern boundary line as extending from 25 feet beyond the drainage ditch at one end to 33 feet beyond the ditch at the other. Appellants then disked up appellee’s crop to this survey line. Appellee secured a quitclaim deed, executed by his two immediate predecessors in title, which described the lower tract as extending northward to the center of the ditch. He then instituted the present action.

Testimony established, and appellants admit, that the lower tract had, since at least 1946, been farmed up to the roadway. However, appellants contended, and adduced other testimony, that the roadway occupied the total width and length of the severed strip. Appellee’s evidence, on the other hand, was to the effect that the roadway extended no further in width than 10 feet south of the ditch. There is no question that if the roadway was of a width less than that of the half-mile severed strip (25 to 33 feet), then appellee, through his predecessors in title, gained title to the remainder of the strip by adverse possession. The only real issue, therefore, concerns the width of the roadway prior to being plowed up by appellee’s tenant farmer. The chancellor’s decree established the boundary line as running 15 feet from the center of the drainage ditch. This was, as we understand it, to have the effect of allowing appellants a 10-foot-wide roadway between their drainage ditch and the new boundary.

In no event, however, has appellee acquired title to the actual space occupied by the roadway. Adverse possession without color of title does not extend beyond actual occupancy. Coslin v. Crossett Co., 233 Ark. 13, 342 S. W. 2d 303 (1961); Fee v. Leatherwood, 232 Ark. 817, 340 S. W. 2d 397 (1961); Cooper v. Cook 220 Ark. 344, 247 S. W. 2d 957 (1952). Obviously, it was appellee’s purpose to gain such color of title by acquiring, two days before he instituted this action, a quitclaim deed from his predecessors in title describing the lands therein conveyed as extending northward to the drainage ditch. But this deed is ineffective to extend appellee’s claim to include the actual roadway since the roadway was continuously in use by appellants, thus repelling the assertion of adverse possession.

Equity cases are, of course, reviewed de novo on appeal; and the chancellor’s findings, unless against the preponderance of the evidence, must be affirmed. In regard to the width of the roadway, we note that upon examining the record, the conflicting evidence appears to be evenly poised. In such instances we defer to the judgment of the chancellor who was in a superior position to determine the credibility of the witnesses. Munn v. Ratcliff, 247 Ark. 609, 446 S. W. 2d 664.

In the case at bar, the decree of the chancellor is affirmed.


text:
    STATE FARM MUTUAL AUTOMOBILE INS. CO. v. Dale H. CARTMEL
    5-5472
    463 S. W. 2d 648
    Opinion delivered March 1, 1971

      Cockrill, Laser, McGehee, Sharp & Boswell, for appellant.

      Wootton, Lands ér Matthews, for appellee.
   Frank Holt, Justice.

This is an appeal from a declaratory judgment holding an exclusionary clause void in a policy issued by appellant and requiring appellant to defend appellee and to pay, up to its policy limits, any judgment that may be returned against appellee in an action currently pending before the circuit court. For reversal, appellant contends that the trial court erred in holding the exclusionary clause void. We think appellant is correct.

Appellee was driving an automobile owned by Howard and Faye Owens. The car was involved in a collision in which Mrs. Owens, riding as a passenger, allegedly sustained serious injuries. It is undisputed that at the time of the accident Mrs. Owens was a named insured in one of appellant’s policies of liability insurance and that appellee, since he was driving with the permission of Mrs. Owens, was also an insured by the terms of the policy. Mrs. Owens instituted suit against appellete to recover money damages for her injuries. Appellant declined to defend and denied any obligation to pay because of an express exclusion in its policy which states:

This insurance does not apply * * * (i) . . .to bodily injury to the insured or any member of the family of the insured residing in the same household as the insured.

Appellee thereupon brought an action for declaratory judgment to define the rights and obligations of the respective parties. In his pleadings, appellee asserted that the above policy exclusion is violative of Ark. Stat. Ann. § 75-1466 (Supp. 1969) and § 66-3211 (Repl. 1966) and that it is contrary to public policy and void.

We need not belabor a discussion of the relevance of § 75-1466 to the present circumstances. That statute is part of our Motor Vehicle Safety Responsibility’ Act which, as we have already had occasion to note, “has no application whatever to an insurance policy which has not been used as proof of financial responsibility in the future.” Aetna Casualty & Surety Co. v. Simpson, 228 Ark. 157, 306 S. W. 2d 117 (1957). In the case at bar, as in the cited case, nothing appears in the pleadings to indicate that the policy had been used for that purpose.

Likewise, we find no merit in appellee’s argument that the exclusionary clause is violative of § 66-3211 which provides in part:

Insurance contracts shall contain such standard or uniform provisions as are required by the applicable provisions of this code ...

Appellee’s position, as we understand it, is that a particular policy provision is to be considered “standard” within the meaning of the statute if, as a matter of proof, such a provision was recognized as standard at the time of the enactment of the statute. Appellee adduced testimony from a qualified insurance agent that the contested exclusionary provision was not included in the standard automobile insurance policy at the time of enactment of Act 148 of 1959 which contains § 66-3211. However, the provision, according to the agent’s testimony, could be found in “substandard” policies at that time; and appellee therefore concludes that the policy offends the statute.

Section 66-3211 is self-explanatory. The standard provision which must be included in insurance contracts are those “required by the applicable provisions of [the] code.” An examination of the code discloses no requirement that the named insured not be excluded from coverage for his own bodily injury. Furthermore, the policy form containing the exclusionary clause in question has been expressly approved by the Arkansas Insurance Commissioner, and appellee readily admits that most automobile insurance policies issued in this State and approved by the Commissioner also contain similar clauses.

These exclusionary clauses were designed and are approved to protect the insurance companies from collusive claims. Although they are quite far reaching and at times appear to have unfortunate effects, such clauses, absent statutory strictures to the contrary, are generally enforced according to their terms. See 7 Appleman on Insurance § 4409 and 7 Am. Jur. 2d Automobile Insurance §§ 127—129. Certainly we cannot say that such a widely accepted clause is against public policy.

The judgment is reversed and the cause remanded for proceedings not inconsistent with this opinion.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Russell C. ROBERTS et ux
    5-5443
    464 S. W. 2d 57
    Opinion delivered March 8, 1971

      Ken Brock, for appellant.

      Gordon, Gordon ér Eddy, Guy H. Jones and Clark, Clark & Clark, for appellees.
   Carleton Harris, Chief Justice.

This is the second appeal of an eminent domain proceeding instituted by the Arkansas State Highway Commission, appellant herein, against Judge Russell C. Roberts and Violet Lee Roberts, his wife, for the acquisition of a 9.63 acre tract of land in Conway needed for right-of-way purposes for the construction of Interstate Highway No. 40 and its facilities in Faulkner County, Arkansas. Judge Roberts and two expert witnesses testified on his behalf, the landowner testifying that just compensation for the taking of the the 9.65 acres was $129,750.00, Lloyd Pearce testifying that just compensation amounted to $105,750.00, and James Larrison, the second expert, testifying that just compensation was $114,500.00. According to these witnesses, the Roberts acreage was valuable for two purposes, the highest and best use for the front 200 feet (3.05 acres) being for commercial property, and the highest and best use of the remaining 6.37 acres being multifamily residential. The land said to be suitable for commercial use had a value, according to Pearce of $67,100, or $22,145 per acre. Pearce said that the property had 660 feet of frontage 200 feet deep on Highway 65 which was zoned for commercial use. He described a usable frontage of 610 feet, leaving a 50 foot right-of-way as access to the rear of the property, and he estimated that the frontage had a value of $110.00 per front foot. The land said to be suitable for multi-family residential, according to Pearce was .worth $37,650 or $5,910 per acre. This part of the property, the back 460 feet, was zoned for residential use, and Pearce said that it would support 135 units for multi-family residential purposes. The witness stated that in 1966, the traffic count along the highway was 5,000 vehicles per day, and that this constituted an increase of 600 per day over the year 1965. According to Larrison, the acreage commercially valued (the witnesses agree4 on the amount of land that was best suited for each purpose) was worth $75,900 or $25,050 per acre, and the multi-family residential was valued at $34,445, or $6,035 per acre. As to the commercial value, Larrison valued the front 200 foot depth at $115.00 a front foot, and, as to residential, he said there was a need in Conway for 360 additional family units.

Two experts on behalf of the state testified that, in their view, just compensation would amount to $24,000.00 and $27,500.00 respectively. On trial, the jury returned a verdict in the amount of $113,300.00, and from the judgment so entered, appellant brings this appeal. For reversal, five points are asserted by the department, but under1- the view that we take, it is not necessary that all of these points be discussed.

Background of the litigation is set out in the second and third paragraphs of the first opinion, Arkansas State Highway Commission v. Russell C. Roberts, et ux, 246 Ark. (June 9, 1969), 441 S. W. 2d 808, as follows:

“Some description of the property and its location is essential to an understanding of the case. On the date of the taking, June 6, 1966, the Roberts tract, approximately square, lay about a mile north of the Conway central business district. The tract was bounded on the south by U. S. Highway 65. At the back of the property, away from the highway, it sloped upward steeply to a ridge 60 feet higher than the front of the tract. The improvements consisted of a four-room house, a barn, and three stock ponds, but no witness attributed any value to the improvements in arriving at an estimate of just compensation for the land, []
U. S. Highways 64 and 65 are of critical importance throughout all the testimony. The two routes run northward together from downtown Conway to a point about a quarter of a mile southwest of the Roberts tract. At that point there is a “Y” by which No. 65 diverges in an easterly direction and No. 64 diverges in a Westerly direction.”

As stated in the earlier case, the principal issue is the substantiality of the testimony offered on behalf of appellees; there are many similarities in the testimony in both cases, and a great deal of what we have said in Arkansas State Highway Commission v. Russell C. Roberts, et ux, Supra, is likewise applicable here. As in the first case, all of the appellees’ witnesses used only one method of reaching their conclusions—that of comparable sales, and the first requirement in .using this method is that the sales must be comparable before they are even admissible in evidence. City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30. In Arkansas State Hwv. Comm. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309, it was pointed out that important factors in determining whether a sale is comparable are location, size, sale price, conditions surrounding the sale of the property,, business and residential advantages or disadvantages, and whether the land is unimproved, improved, or developed land. At the first trial, appellees’ experts only mentioned one sale involving land on Highway 65 said to be comparable to the Roberts property, and we quickly disagreed that this sale was indeed comparable. We disagreed also that four other sales offered by appellee as to commercial value, were comparable, and the language used in rejecting those sales is applicable to some of the sales used in the present case. For instance, in addition to pointing out that all parcels were on Highway 64 rather than Highway 65, we pointed out that the sales “were in a small area that had already been developed to commercial use.” That is true of three of the sales offered by appellee in the present litigation. Draught to Kerr McGee, about Vz acre, Rogers to Farmer’s Fire Insurance Company, about .14 of an acre, and Threshing to Central Arkansas Production Credit Assn., about an acre, were all sales in a small area, within the city limits, that had already been developed for commercial use. Three other sales, all outside the city limits, in an undeveloped area, were also used. The largest tract involved was a sale from Carter to Burford, and it only contained approximately an acre. The other two only contained approximately Vz acre and 1/3 acre respectively. All three were vacant at the time they were sold, except that one contained a small residence, which was considered of no value. Pearce and Larrison testified that they made adjustments in the differences between the lands covered in the sales mentioned, and the land owned by Judge and Mrs. Roberts, in finding the properties to be comparable. These adjustments included such factors as topography, utilities, size and shape, access, surrounding area, etc. It is at once evident that comparing all of these factors, finding the Roberts property better in some respects, and not as good in others, is rather a complicated process, particularly when some of the comparable sales used differ substantially from some of the other sales used, i. e., some were in the city limits, (3) in highly developed commercial districts, while others were out of town, (3) with no zoning, sewer, police, or fire protection. Apparently the witnesses then averaged the sales to reach their figures. This seems to us to be a matter, on the one hand, of using sales that were dissimilar to the Roberts property, because the lands (used for comparison) sold were more valuable, and on the other hand, using sales which were dissimilar because the lands were not as valuable, bringing the one group down, and the other group up, in order to reach a comparable figure. That this was done is evident from the testimony. Mr. Larrison testified “By taking the six sales which we have considered and striking an average, we come up with $125 a front foot. Now in applying this to the subject property, I considered we already had 610 feet of effective property, 200 feet deep, so in placing my value on this property I said 660 feet at $115 which is the same thing as saying 610 feet at $120.” This explained the figure that he had reached on the property valued for commercial use, $75,900. Of course, it is entirely proper for an expert to reconcile differences in the sales used and the principal property, particularly if there is no property in the vicinity actually comparable in nearly all respects, but one noticeable, and somewhat confusing fact here, is that some of the properties used as comparable were not at all comparable with each other, and the points of dissimilarity, between these separate tracts and the Roberts lands greatly varied from one extreme to another. As an example, let us say that the principal property is C. The expert compares C with A, which is in a highly developed area, finding some points of similarity and some dissimilar points. He then uses B, lands in an undeveloped area, which also bear some similarities to C, but of an entirely different nature from A, the dissimilarities also being of a different nature. Using these properties for comparison, he reaches the conclusion that A is worth so much more per land measure than C; likewise he reaches the conclusion that B is worth so much per land measure less than C. He then takes this analysis, hits an average, and uses the average to arrive at a value for C. Bear in mind that the comparison made by appellees’ experts involved going through a similar process in six sales rather than two.

Mr. Pearce added a rather unusual basis in support of the value of the front portion of the lands for commercial purposes. He testified that the back portion of the property would support 110 units of multi-family residential use, and then stated:

"When we are speaking in terms of 110 units of multi-family residential use which could very easily be located on the land we create a need by the erection or construction of those 110 units for commercial facilities such as a barber shop, beauty shop, small sundry shop. [Our emphasis]”

This is what is known as “begging the question”, which is simply basing a conclusion upon a fact not yet proved. Of course, the 110 units are not already there, and filled to capacity, a fact which will be subsequently discussed.

As previously stated, all sales used were on Highway 64.,. Mr. Larrison was questioned about this on cross-examination as follows:

"Q. Are you telling the jury that there were no sales of commercial properties comparable to the Roberts property on Highway 65 and that you had to go clear down to Highway 64 east of Conway to get comparable sales?
A. If there were any sales of comparable size on Highway 65 they were not comparable in location. I couldn’t see them.[]
Q. You have any explanation to the jury as to why you had all these sales out on 64 for all these high prices and not one single sale on Highway 65 for four years?
A. There were some sales on Highway 65 right at the “Y” but I have been instructed by our attorney not to consider them.
Q. Why were you instructed not to consider them?
MR. JONES: I think that is a question of law, purely of law. We will object to that question. We think it is an improper question.
THE COURT: Overruled.
A. Because of the Supreme Court ruling in the prior trial of this case. They instructed me in their opinion that the Supreme Court has said these sales were not admissible in evidence.
Q. All right. The sales of the property or these properties were exactly like the property you have used on Highway 64 are they not, in size, in development and in what they are being used for?
A. Well, I won’t split hairs.”

Of course, one cannot help but wonder, if property on 65 was so valuable for commercial purposes, why there were no sales.

Four sales were used by witnesses in reaching the values testified about for the 6.37 acres considered for multi-family residential. Three of these sales were in a developed residential area, one being located on Clifton Street, one on Cleveland Street, and the other on Independence Avenue. All were on paved streets, all had utilities, and were zoned multi-family use. Two of these were within 500 feet of Hendrix College, one being right across the street. Two of the three are less than Vz an acre, and the other is less than an acre. The fourth sale referred to was that of Western Bell Motel, located at the intersection of Highway 64 West and Washington Street, a well developed area. Less than Vz an acre was involved, and the property had sixteen units when it was sold. In stating that these properties were comparable, the same procedure was used as with the commercial property, already outlined. Appellees did make a better case in this phase of the litigation than in Arkansas State Highway Commission v. Russell C. Roberts, et ux, Supra, in that testimony was offered relative to a need for rental housing units. Dr. Harold Love, Chairman of Special Vocations at State College of Arkansas, testified that in 1966 there was a very strong demand for rental housing units near the college, not only for graduate students, but for faculty members as well. He stated that although there had been many apartments built in the last few years, the rental charge was too high for graduate students. He said that since 1966, there had been one large multi-housing unit built by the college, and that a small one had also been constructed; however, he said that the large unit was not always full and, as a matter of fact, probably was about only 60% full, the reason being that the unit was too expensive. He added that he thought $1,000.00 per acre was a rather high price for land upon which multi-housing units would be built, and that he was not testifying that rental housing could be built on the Roberts land, only that there was a need in 1966 that was not met. Mr. Wilburn Smith, business manager for Hendrix College, testified that since 1963, he had not found it easy to find proper rental quarters for new faculty members, and he agreed that in early 1966, there was a strong demand for rental housing units in the city of Conway. He said that the student enrollment increased by approximately 100 to 150 from 1963 to 1966, and had increased from 1966 to the present by approximately 250 students; that during the three year period between 1963 and 1966, there would have been an increase of 18 faculty members. As to the last group, Mr. Smith admitted that no one had failed to find a place to live, and he also said that Hendrix student housing was not full; that he was not saying that there was a demand for student housing. The witness said he knew nothing about the Roberts property.

Judge Roberts used the same sales as his two experts. His evaluation of $129,750.00 was the same as that in the first case. The. Roberts property is already zoned for multi-family units, and has a 660 foot frontage on the highway; however, 50 feet will have to be used for a private service drive into the proposed complex. Judge Roberts said that the property was purchased in 1945 for the sum of $1,750 or $175.00 per acre. The three ponds on the Roberts property occupy about an acre, the largest of these being about six feet deep. All of the ponds are located in the “commercial area” of the property. As previously stated, the witness did not go into detail in explaining the valuations he had reached, but he did say that he was not familiar with any piece of property in the area that was zoned commercial on the front and residential on the back that could be used for multi-family structures; subsequently he stated that the property was the only piece of property in the city limits of the city of Conway, relative to size, topography, location and utilities, that could be developed on June 6, 1966 (date of the taking) in the manner testified about. Judge Roberts, strictly speaking, was correct, in this statement, but the evidence reflects that there are two other pieces of property on Highway 65 which are almost in the same category. One of these is a ten acre tract adjoining the Roberts property on the west, the distinctive difference being that this latter tract is,not rigfit on the highway. The other is a sale from Berry to McCracken and Wilson which took place on November 30, 1961; this tract is composed of 16 acres, fronts along the same highway, and has the same zoning as the Roberts property, with commercial on the highway frontage and residential on the back part.

While it appears that in the instant case appellees’ experts have gone into more detail in endeavoring to show comparability of the subject property with the properties used in comparison, we cannot agree that this effort was entirely successful. The reason can be stated in one simple sentence, viz, there are too many differences to support the award given. In Vol. 5, Nichols on Eminent Domain, 3rd Edition, Sec. 21.31 (1), it is said:

“The location of the property sold must be considered, and evidence of the price paid at sales of other land, to be admissible in a land damage case, must be confined to land similarly situated and of the same character as that taken; and, as a general proposition, to land in the same neighborhood. It cannot be said, however, as a matter of law how large an area, in feet or blocks, constitutes a neighborhood, and no hard and fast rule can be laid down on the subject. In large cities ‘neighborhood’ is a relative term, and the field which a witness may take into consideration in forming an opinion of the selling price of land in the vicinity of a particular property, should not only be reasonably adjacent thereto, but it should be of the same general character as the immediate locality in which such property is situated. In sections of a city devoted to residences, or to retail trade, proximity to some desirable or undesirable point may affect values so greatly that one piece of land may be worth twice as much as another a hundred feet away. In determining the value of land in such sections the court should be very strict in its requirements of proximity as well as of similarity.”

It is obvious from what has been said, that we consider the proof offered as to both commercial value and value as a multi-family apartment to be completély inadequate to support the amount of the judgment.

It is asserted that the trial court erred in overruling the motions of appellant to quash the special jury panel selected to try this cause. It was first contended by the department that two jury commissioners did not have the qualifications prescribed by law since they were county officers, and accordingly, could not possess the same qualifications as petit jurors, a necessary requirement for jury commissioners under Ark. Stat. Ann. § 39-201 (1969 Supp.). Appellant’s complaint is based on the fact that the two were Democratic Central Committeemen for Faulkner County. Appellant is in error. We have held that County Central Committeemen are not officers in any sense except to be answerable to mandamus proceedings. Park v. Kincannon, Judge, 214 Ark. 398, 216 S. W. 2d 376.

It is also contended that Act 568 of 1969 was applicable to this cause and that the jury should have been selected under the provisions of that act. Since any further trial would unquestionably come under the provisions of the act, there is no need to discuss the point further.

As pointed out at the outset, this is the second appeal of this case. This type of litigation is expensive, as well as time consuming, and we recognize that it may be difficult to locate many tracts of land that are really comparable. As earlier mentioned, the evidence offered relative to the multi-family unit use is stronger than at the first trial. Accordingly we have carefully examined the evidence and are of the view that it properly supports approximately 50% of the judgment entered. Hence, we think that an award of $57,000.00 is proper under the evidence, and that the judgment should be reduced from $113,300 to $57,000. See Arkansas State Highway Comm. v. Dupree, 228 Ark. 1032, 311 S. W. 2d 791; Arkansas State Highway Comm. v. Watkins, 229 Ark. 27, 313 S. W. 2d 86.

The judgment is affirmed on the condition that remittitur is entered as indicated within seventeen calendar days; otherwise, the judgment will be reversed and the case remanded for a new trial.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. Once again I feel compelled to say, as I did in my concurring opinion on the first appeal, that the court is applying an improper standard in determining substantiality of expert opinion evidence on the market value of real estate. What I said in that opinion on this score I reiterate. Little involved on this appeal can be said to be controlled by the law of the case on the first appeal. The witness whose testimony was then treated did not testify at the second trial. Pearce used entirely different references to arrive at the opinion he expressed on this trial. The expert witnesses dutifully avoided consideration of sales which this court said were not comparable as a matter of law. One of these was on Highway 65, but this court said in the earlier opinion that the purchase was speculative. The others were eliminated because they were located in a small area that had already been developed to commercial use along another highway where traffic was nearly double that on Highway 65, upon which appellees’ property is located.

A new approach to comparable sales was taken by Pearce and by Judge Roberts in the second trial. James Larrison, who testified at the second trial, did not testify at the first one. He did give regard to the inhibitions of the majority opinion on the first appeal. These witnesses endeavored to use other sales and to show in what respects the lands differed and the adjustments necessary to compensate for the differences. Unless the witnesses are permitted this latitude this case will never be terminated or the compensation due the property owner never determined unless he agrees to accept some arbitrary figure at which we may arrive with even less substantial foundation than the testimony of any of the witnesses. The reason is that no witness has yet produced a valuation based upon a sale of lands actually comparable under the strict test of similarity being imposed by the majority.

It is strange to me that the majority can concede, as it does, that, strictly speaking, Judge Roberts is correct in his statement that, on the date of taking, this property was the only property in the city limits relative to size, topography, location and utilities that could be developed in the manner stated as its highest and best use, i. <?., commercial development .along the highway and multifamily residential on the rear, and then apply such a strict rule in testing the basis of expert opinion evidence. The same strict test would totally eliminate from consideration sales of those tracts the majority finds almost in the same category. Those tracts were similar only in size and proximity in one case and proximity only in the other. Yet, for valuation purposes they might as well have been miles away.

The Berry to McCracken and Wilson sale involved property just across the highway from the subject property. Neither Pearce nor Larrison considered it because both considered the sale date of November 30, 1961, too remote. Is the majority saying this qualified expert is wrong as a matter of law? Time of sale is one of the important considerations in determining pertinence of sales date. See Annot. 118 A. L. R. 869, 887 (1939); 85 A. L. R. 2d 110, 149 (1962); 27 Am. Jur. 2d 33Í, Eminent Domain, § 429. Larrison testified that, while there is other land all along the highway, it would be difficult to develop because the terrain varies so sharply, and in addition it was not similarly situated as to availability of utilities. Utilities were admittedly not available to the Berry tract at the time of the sale. It consisted of 16 acres, not ten. Property south of the highway dropped off so sharply in elevation it was said to be difficult to develop. Every one of these dissimilarities would inevitably result in a much, much lower market value than that which would otherwise prevail.

I am astounded that, under the strict standards stated by the majority, it can say that the adjoining 10-acre tract is almost in the same category as the property involved. Perhaps this treatment arises from its considering the property as if it were “on Highway 65.” The nearest any witness comes to placing this tract on this highway is the statement that it “corners” on the highway, which I submit may or may not be true when all the testimony and exhibits are considered. It fronts on a gravel street. It does not take an expert to know that, insofar as value for commercial development is concerned, it might as well be at least a mile away. Appellant’s expert admitted the importance of highway frontage for commercial development. One of appellant’s witnesses called this sale very comparable “to a degree.” There is a conflict in the testimony as to whether that property has been zoned. There is at least some question as to whether true consideration for the sale is shown when a developer trades a house or other building for land. In other words, the builder might be willing to forego his profit (and the potential tax liability) in order to obtain land for which he might well be willing to pay an even higher cash price.

But, as I see it, these similarities and differences are matters that should be determined: first, by experts whose knowledge, training and experience qualify them to have opinions in such matters; second, by the trial judge who must exercise discretion in deciding the appropriate latitude to be allowed the experts in comparing sales under conditions prevailing in the vicinity of the property and the nature, characteristics and highest and best use of the property involved; and, third, by a jury properly selected and impaneled. This court should engage in weighing “comparability” by viewing similarities and dissimilarities and their effects only when there has been a clear abuse of the trial court’s discretion.

In spite of the esteem in which I hold my brethren and the great respect I have for them and their many talents and great knowledge, I do not feel that any of us is as well positioned to make these determinations as are the experts who actually live in the real estate market place, the trial judges who have the responsibility for determining the qualifications of the experts and the latitude which must be. given them under prevailing market conditions in the particular locality or the jury, which is to judge weight and credibility. If this court progressively eliminates from consideration sales we decide are not comparable it will soon be demonstrated that there are no sales of lands comparable to appellees’ under such strict standards.

I would refer the majority to a statement appropriate to this particular situation in 4 Nichols on Eminent Domain, Third Edition, 94, § 12.311[3], where it is said:

It must be remembered, howevei, that the comparison is made with lands which are similar to the land taken. Of course, since, in fact, no two parcels are exactly alike, only such parcels may be compared where the dissimilarities are reduced to a minimum and allowance is made for such dissimilarities. It is, therefore, imperative to consider such differences as may exist in the physical and environmental conditions and a proper allowance made to cover any differential that may exist by virtue of the difference in the time of the sales. It is evident that there may be considerable difference in the size, shape, situation, and immediate surroundings of two estates, and perhaps in other respects, and yet the price which one brought may be of substantial assistance in determining the value of the other. There may be general considerations applicable to both alike which largely affect their value and render it proper that the price paid for one should be considered in arriving at the value of the other, nothwithstanding the differences between them.

No useful purpose would be served by my detailing each of the specific similarities and the various factors appellee and his witness enumerated. I think the majority, in declaring sales relied upon by appellee and his witnesses not comparable as a matter of law, has overlooked important evidence in the case, which at least leaves a question of fact having a great bearing upon the proper latitude to be allowed expert witnesses in making comparisons. The highest and best use of the* property is one of these factors. Some othérs of which' there was at least substantial evidence are:.

1. The ability of anyone traveling by automobile to reach any other place in the city within five minutes.
2. The proximity of commercial developments on the highway east of the property.
3. The availability of the property for 110-135 units for multifamily residential purposes.
4. The demand for 360 such units in Conway.
5. The unavailability of other tracts for this use, making this property unique because of zoning, availability of utilities, etc. .

Because of these factors it was only natural that value witnesses consider properties that were bought and sold for development for multifamily residence use and for highway commercial use, making appropriate adjustments for dissimilarities. The necessity for making appropriate deductions because of certain dissimilarities in certain sales and appropriate additions because of other dissimilarities in others is so usual and obvious that I cannot see why it should prove confusing in this case. Nor can I understand where there is anything unusual about finding that availability of the back part of the property for multifamily residences added to, or even created a demand for, commercial sites on the highway frontage which would affect its value. It is an obvious fact that suburban and perimeter development property is being purchased and developed on this premise every day in almost every city in America. The desirability of this type of housing in a complex including small shopping centers has even presented a problem to those seeking to preserve downtown business centers. We can’t be blind to this established fact accompanying the urbanization of our society.

I will have to agree that the case must be reversed. The witness Larrison virtually admitted that, in his opinion, those sales along Highway 64 to which he gave great weight in evaluation of the Roberts highway frontage were almost exactly like the sales which the court held noncomparable as a matter of law on the first appeal. Under the law of the' case, this deprives his testimony, as to that part of the land, of substantial support. Furthermore, it seems to me that the witnesses once again failed to satisfactorily explain the extent of the effect of various factors upon market value. When a witness says that by making various adjustments for factors which he enumerates, he arrives at a value of $156 per front foot, it is hard to comprehend how he can then arrive at a value of $110 per front foot, as did Pearce, on the property taken. Pearce also failed to explain how he came to the conclusion that the property was worth $148 per front foot, or 88% of the value of the sale by Rogers to Farmers Fire Insurance Company, except to say that it was based on adjustments for time, location, traffic, topography, physical characteristics, utilities, size and shape, highest and best use, access to the property and neighborhood and surrounding property. The fact finders had no way of knowing how much of this difference was attributable to time or any other one of the factors for which he made adjustments, or how he arrived at the adjustment for any one factor. Certainly, the expert witness did allocate some definite figure to ¿ach one of the factors and had some process of reasoning for his allocation. Why did he not come out with 87% or 89%, for instance? The same infirmities appear with reference to sales influencing Pearce’s decision as to value of the remainder of the property. How did he adjust values, e. g., from 54 cents per square foot to 14 cents per square foot, or $750 per unit to $550 per unit, or an average of 49 cents per square foot, or $800 per unit or $26,000 per acre to 14 cents per square foot or $350 per unit or $6,050 per acre? The only explanation I find is that the difference of $450 per unit would “take care of the minuses” by allowing $49,500 (based on 110 units) for street and land work and earth work that would be required on the Roberts property. Yet he does not say how this relates to cost of the work or give any other reason for arriving at the figure of $450.

Larrison also said that his difference of $400 per unit would balance out the minuses by allowing $4,500 per acre for site preparation and service drive. Larrison also detailed the dissimilar factors connected with the commercial sales and said that some of these lands were better and some were worse than the Roberts land. He said, “All these percentage factors were added up and applied to the unit value paid for each of the comparable properties and then by multiplying percentage factors by the unit price paid for each of the sale properties, you come up with the adjusted value of the subject property by comparison.” Yet he also failed to explain the percentage used with reference to any factor or to demonstrate how even one such calculation was made.

Judge Roberts testified that he used essentially the same sales as were used by his expert witnesses as the basis for his valuation of $129,750.

I have reservations about the offer of a remittitur. However extensively the record is examined, there just isn’t any evidence showing a value of 50% of the judgment rendered, nor is there any attempt made by the majority to demonstrate how this figure was reached. Since appellees have an option in the matter, I do not see that they are harmed. Accordingly, I will merely refer to the reservations expressed in my separate opinion in Arkansas State Highway Commission v. Carruthers, 246 Ark. 1035, 441 S. W. 2d 84.

       Likewise, in the instant litigation, no witness on- behalf of appellees attributed any value to these improvements.

       The Roberts ■ property was found to be more valuable than four tracts and less valuable than two.

       Also defined as “founding a conclusion on a basis that needs to be proved as much as the conclusion itself.” Johnson v. Hall, Secy. of State, 229 Ark. 400, 316 S. W. 2d 194.

       There is an incongruity in this testimony for Mr. Larrison stated that if there were any sales of comparable size on Highway 65, they were not comparable in location. Yet, along with Mr. Pearce, the sales actually used were neither comparable in size or location.

       These would of course, have to be filled in.

       This property was sold in 1963, in a sale of DuVall to Meadow-wood Builders for a consideration of $15,500, reflected by cash, and the trade of a house. Mr. Larrison stated that he did not consider this sale because it was not "an arm’s length market transaction”, although testimony on the part of the state indicated to the contrary.

       This property sold for |875.00 per acre, but Mr. Larrison testified that he did not consider this sale, because he considered no sales before 1962, as they were too remote.

       It is interesting to note that, though entirely different sales were used in this case for comparison with the Roberts property, Pearce reached the same identical value figures reached in the first trial.


author: Carleton Harris, Chief Justice.

text:
    A. C. HAMILTON and Robert W. MAXFIELD v. Charles HUCK and Luther R. WADE
    5-5450
    464 S. W. 2d 68
    Opinion delivered March 8, 1971

      Givens ér Capps, for appellants.

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellees.
   Carleton Harris, Chief Justice.

Appellant, Robert W. Maxfield, on September 17, 1969, at approximately 5:00 a.m., was operating a large tractor and trailer truck owned by appellant, A. C. Hamilton, the Hamilton vehicle traveling east on Interstate No. 40 near De-Valls Bluff, Arkansas. Interstate No. 40 is a four-lane concrete highway, two lanes running east, and two lanes running west, the lanes being divided in this particular area by a three foot concrete dividing wall. The evidence reflects that Maxfield was traveling at a speed of approximately 65 miles per hour, in the left-hand east bound lane and passed a tractor trailer unit operated by Ray DeVall who was traveling in the right-hand east bound lane. DeVall blinked his headlights as a matter of indie tting to Maxfield that the latter could safely pull back into the right-hand lane in front of DeVall, and when this was done, the vehicle driven by appellant struck a truck which was likewise proceeding to the east. From the testimony:

“So, as I passed the second Roadway truck, he blinked his lights, and I give a signal, and I looked in my mirror to make sure that I was clear, and I was clear, and I came in, and, again, I touched my marker lights, and I could see straight ahead, and there was nothing in front of me nowhere that I could see, and all of a sudden, just out of nowhere, I can see an object approximately from here to the end of the Court Room wall, just about this distance before I could actually tell that there was an object, and me traveling between sixty and sixty-five miles per hour, it appears that this object is doing at least ten to fifteen miles an hour to me, and, so, from here to the Court Room wall at that speed, at sixty to sixty-five miles an hour, that would come at you pretty quick.”

According to Maxfield, and also DeVall, the front truck, driven by Luther R. Wade, and owned by Charles Huck, appellees herein, was unlighted. When the collision occurred, Maxfield’s truck, which had already been cut to the left in an effort to avoid the crash, struck the concrete dividing wall. Maxfield was injured, and the truck was badly damaged. Subsequently, Maxfield and Hamilton instituted suit for personal injuries and property damage respectively, Hamilton also suing for loss of profits occasioned by the inability to use the truck. On trial, the jury returned a verdict for appellees, and from the judgment so entered, appellants bring this appeal. For reversal, it is asserted that the verdict was contrary to the preponderance of the evidence; that appellees, through counsel, intentionally brought to the jury’s attention the fact that repairs to the damaged vehicle had been paid for largely through insurance, and that the court erred in ruling that loss of profits of a commercial vehicle is not a recoverable element of damage in Arkansas.

We cannot, on appeal, decide this litigation on the question of whether the verdict was against the preponderance of the evidence. While the trial court had the authority to set aside the jury verdict for this reason, we are only concerned with whether there was substantial evidence to support the verdict. In Superior Forwarding Co. v. Sikes, 235 Ark. 932, 349 S. W. 2d 818, this court said that we will affirm a jury verdict on appeal if there is any substantial evidence to support it, even though the verdict may appear to be against the preponderance of the evidence. Accordingly, while there was certainly evidence to support the view of appellants, we examine the case to determine if there was evidence to support the view of- the jury. There is such evidence.

Trooper Mike Brandon, who investigated the accident, testified that the truck driven by Maxfield, after striking the Huck truck, moved on to the left and struck the median divider eighty-four feet east of the impact, then traveled three hundred and fifty-one feet up the left-hand lane along the divider until it came to a rest. In other words, -the truck traveled 435 feet from the point of the collision. There was also evidence that Max-field was driving with his lights on dim, but at any rate, we think a jury question was presented as to whether Maxfield was operating his vehicle at too great a speed under the circumstances, or whether he was keeping a proper lookout.

Nor do we find merit in the second contention. During cross-examination of Hamilton, counsel for appellees stated “I understand that the damages ran twelve thousand, seven hundred and ninety-four dollars and ninety-eight cents, according to a paper furnished me by your lawyer, that your insurance company paid for it”. No objection of any nature was made. Subsequently, the record reflects the following:

“COUNSEL FOR APPELLEES:
Q. Did you pay that amount yourself?
A. Yes, sir.
Q.. No one paid that for you, that two thousand?

COUNSEL FOR APPELLANTS:

Your Honor, I am going to object under the Collateral Source Rule.

COUNSEL FOR APPELLEES:

He is giving us one figure here, and then another one. I don’t care whether the insurance company paid it or not. I am curious as to why the figures are different.

THE WITNESS:

What figures are different?

JUDGE RHODES:

It would make no difference to who paid the bill. The gentleman would be entitled to recover if that much damage was done to his automobile.

COUNSEL FOR APPELLANTS:

No further questions.”

While the objection may have been pertinent for the reason given, it certainly did not constitute an objection that the question was prejudicial because of the mentioning of insurance. We have held that the making of a specified objection has the effect of waiving all other objections. Woods v. Pearce, 230 Ark. 859, 327 S. W. 2d 377. There was no request for a mistrial, nor even a request that the jury be admonished, although the statement of the court, quoted above, is somewhat in the nature of an admonishment. It follows that there was no reversible error.

Since we have found no error up to this point, it becomes unnecessary to discuss whether the court erred in excluding proof of loss of profits. In upholding the judgment for appellees on the question of liability, questions relating to proper evidence in support of a recovery, become moot.

Affirmed.

       The record does not reveal that any such motion was made.


author: George Rose Smith, Justice.

text:
    Ama HOGUE v. William F. HOGUE et ux
    5-5476
    464 S. W. 2d 67
    Opinion delivered March 8, 1971

      Shaw & Shaw, for appellant.

      Joe H. Hardegree, for appellees.
   George Rose Smith, Justice.

The issue here is the retaxing of costs. Upon the first appeal we modified the decree and remanded the cause for the entry of a decree consistent with the court’s opinion. Hogue v. Hogue, 247 Ark. 914, 448 S. W. 2d 627. Our judgment and mandate directed that the cost of the appeal be divided equally between the two parties. The cost statement attached to the mandate recited total costs of $291.50. That total included a transcript or record fee of $71.50, as certified by the clerk of the trial court. There was, however, no charge for the reporter’s transcription of the testimony, because that item was not shown in the original record.

Upon receipt of the mandate the trial court entered a new decree conforming to this court’s opinion and taxing equally the total costs of $291.50. The present appellees promptly filed a motion to set aside that decree and to permit the appellees to show their actual costs. At the ensuing hearing the appellees proved that they had paid $883 for the reporter’s transcript of the testimony. The chancellor accordingly vacated his second decree and entered a third decree dividing equally between the parties the actual total costs of $1,174.50. This appeal is from that redetermination of the costs.

For the information of the bar we should state at the outset that it is not unusual for an appellate record to omit one or more items of costs, such as the reporter’s fee. Such an omission is frequently carried forward in the statement of costs which the clerk of this court attaches to the mandate. Its correction is usually a ministerial matter involving merely a certification, by the clerk of the trial court, of the true amount of the costs. Upon that certification our clerk issues a new statement of costs, to replace the one that first accompanied the mandate.

Our procedure, though routine, has apparently not previously been described in an opinion, which doubtless explains why a different corrective process was followed in this instance. The chancellor, however, reached the right result; so we affirm his decision.

We do not agree with the appellant’s insistence that the trial court was without jurisdiction to determine the correct amount of the costs. Upon the first appeal we exercised our judicial discretion, in an equity case, by deciding that the liability for the costs should be borne equally by the parties. Supreme Court Rule 24 (d). The determination of the exact amount, however, might properly be left to the trial court. See, e. g., Lewis v. D. F. Jones Constr. Co., 194 Ark. 602, 108 S. W. 2d 1093 (1937). In fact, that procedure is often desirable and appropriate, for the trial court is in a better position than we are to hear evidence upon a disputed issue of fact. Here we find no reason to disturb the chancellor’s conclusion, which was right.

Affirmed.

Jones, J., not participating.