text:
    James Rice, alias James Robinson v. State of Arkansas
    5215
    408 S. W. 2d 902
    Opinion delivered December 5, 1966

      J. B. Milham, for appellant.

      Bruce Bewnett, Attorney General; John T. Hashins, Asst. Atty. Gen., for appellee.
   Hugh M. Bland, Justice.

Appellant, James Eice, alias James Eobinson, and one Stanley Eobinson, were charged by information with forgery and uttering. The State alleged that they forged a check in the amount of Thirty-Eight Dollars and Twenty Cents ($38.20) on the J. 0. Eobinson Plumbing Company payable to Stanley Eobinson and signed J. 0. Eobinson Plbg. This check was drawn on the Benton State Bank and the check was cashed at the Saline Hardware Company.

Stanley Eobinson pleaded guilty to the charges of forgery and uttering and was sentenced to the State Penitentiary. Appellant was tried before a jury on March 7, 1966, found guilty and sentenced to three (3) years for forgery and three (3) years for uttering. Appellant brings this appeal urging ten (10) points for reversal as follows:

“POINT NO. 1. The verdict of the jury is contrary to the evidence, and the law.
POINT NO. 2. The judgment is contrary to both the law and the evidence.
POINT NO. 3. The verdict and judgment are excessive.
POINT NO. 4. The Prosecuting Attorney refused to file the alleged forged check with the Clerk of the Circuit Court so appellant could inspect same and prepare for trial as requested twice by appellant; that said check shows on its face that the 4 letters ‘Plbg’ were written on the check by some one besides appellant or the person who wrote the check. The Court erred in permitting the check to be introduced in evidence.
POINT NO. 5. The Court erred in permitting appellant to be brought into court handcuffed to Stanley Robinson who was brought from the State Penitentiary and who testified against appellant.
POINT NO. 6. The Court erred in permitting the Prosecuting Attorney to introduce the alleged forged check over defendant’s objections.
POINT NO. 7. The Court erred in permitting State’s witnesses to testify over defendant’s objections that the check was charged to J. 0. Robinson Plumbing account and then taken out.
POINT NO. 8. The Court erred in refusing to instruct the jury not to consider the testimony of Bill Ford, witness for State, upon the grounds that Ford did not handle the forged check and did not handle the books and was disqualified to testify as to what the records showed.
POINT NO. 9. The Court erred in giving the State’s Instruction No. 1 over appellant’s objections and exceptions, his specific objections.
POINT NO. 10. The Court erred in giving State’s Instruction No. 5 over defendant’s objections and exceptions.”

It is not necessary to discuss appellant’s third and fifth points as they were not raised in the motion for a new trial.

Points one and two challenge the sufficiency of the evidence to corroborate the accomplice, Stanley Robinson. We see no merit in this contention. Stanley Robinson testified that it was appellant’s idea to get some money by writing checks.; that they went to his house and appellant produced ten blank payroll checks of J. 0. Robinson Plumbing 'Company. Appellant filled out one of these checks, in the amount of $38.20' signed by J. 0. Robinson Plbg. and payable to Stanley Robinson; that he (Stanley) took the check to Saline Hardware, endorsed and cashed it splitting the money with appellant. Gerald Perry, clerk at Saline Hardware, corroborates Stanley Robinson’s testimony about cashing this check and purchasing tools with part of it. Bill J. Ford, Vice President of the Benton State Bank, testified that the signature on the check did not match the signature card on file at the Bank. Sheriff Guy Grant testified that when he went to the Bank to investigate the check he immediately recognized appellant’s signature on the check. [For his familiarity with the signature see Rice v. State, 240 Ark. 674, 401 S. W. 2d 562.] The Sheriff picked up appellant and he gave him a specimen of his handwriting by writing the mane “ J. O. Robinson” ten times. This specimen was turned over to a Mr. Chandler at State Police Headquarters, (Chandler is a handwriting expert) and after comparison he testified that the specimen handwriting and the signature on the check matched. There is substantial corroborating evidence to connect appellant with the commission of the offense. Lauderdale v. State, 233 Ark. 96, 343 S. W. 2d 422 (1961).

We see no merit in appellant’s fourth point for the reason that the Prosecuting Attorney, in response to a motion for a Bill of Particulars, made the check available for inspection. Edens v. State, 235 Ark. 996, 363 S. W. 2d 923.

Appellant’s sixth point is in substance the same as his fourth point.

Points seven and eight are so related they can he discussed together. As we see it, the only contention here is that Bill J. Ford does not personally handle checks and bookkeeping. He is Vice President of the Bank and it is operated under his supervision. He was competent to testify as to the failure of the signature to match the signature card on file at the Bank. We see no merit in this point.

Appellant, for his ninth point, challenges the giving of State’s Instruction No. 1 which is as follows:

“You are instructed that the forgery of an instrument is one offense, the offering to pass it, knowing it to be forged, whether he, himself, forged it or not, is another offense, which is called uttering a forged instrument.”

This instruction is based on Ark. Stat. Ann. § 41-1805 (Repl. 1964) and is quoted verbatim. The instruction correctly states the law. Forgery and uttering are separate and independent offenses. Ball v. State, 48 Ark. 94, 2 S. W. 462. Appellant does not argue or try to show what is wrong with Instruction No. 1. It is a correct definition of forgery and uttering. Tarwater v. State, 209 Ark. 687, 192 S. W. 2d 133 (1946).

Appellant also challenges the giving of State’s Instruction No. 5 which is as follows:

“There is another rule of evidence which applies to this case. Our statute provides that the jury cannot convict anyone charged with a felony on the uncorroborated evidence of an accomplice. By an accomplice is meant any person who had anything to do with the commission of the offense charged, and the evidence of any accomplice, uncorroborated, will not justify any jury in convicting a defendant, even though they believe it beyond a reasonable doubt.
You will observe that the corroborating evidence of an accomplice must not only show the facts and circumstances of the case, but also show the defendant’s connection with it. The jury must not make the mistake of thinking that the corroborating evidence itself should be sufficient to convince you of his guilt beyond a reaonsable doubt. The instruction tells you, first, that the evidence of an accomplice must be corroborated; and, second, that all the evidence in the case, taken together, should convince you of his guilt beyond a reasonable doubt before you can convict.
The jury is instructed that if you find from the evidence that the witness, Stanley Robinson, is an accomplice, because equally guilty with the defendant, if the defendant is guilty, then you. are instructed that although you may believe the testimony of the witness Stanley Robinson, you would not convict the defendant on his testimony, unless you find that his testimony is corroborated by other testimony, either by direct or circumstantial evidence tending to connect him with the crime. This other evidence is not sufficient if it only shows the facts and circumstances that the offense was committed, hut it must go further and show affirmatively that the defendant was connected with the crime and the commission of it.
This instruction does not mean to tell you that the corroborating evidence must of itself he sufficient to convince you of his guilt beyond a reasonable doubt, hut it means that the evidence of Stanley Robinson, if an accomplice, must be corroborated and that all the evidence in the case taken together, must he sufficient to convince you of his guilt beyond a reasonable doubt, before you can convict him of anything.”

This instruction is a correct statement of the law. Ark. Stat. Ann. § 43-2116 (Repl. 1964), Lauderdale v. State, supra; Beasley v. State, 219 Ark. 452, 242 S. W. 2d 961 (1951) and Thompson v. State, 207 Ark. 680, 182 S. W. 2d 386 (1944).

Appellant’s main objection to this instruction is that he says the instruction should have told the jury that Stanley Robinson was an accomplice and not leave that issue to the jury. This is not the law and there was no reversible error if it were, in fact, submitted to the jury, Hummel v. State, 210 Ark. 471, 196 S. W. 2d 594 (1946), Boyd v. State, 215 Ark. 156, 219 S. W. 2d 623 (1949).

Finding no error, the judgment of the circuit court is affirmed.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    David D. Panick, ex'r v. Dr. Mac McLendon
    5-4030
    409 S. W. 2d 497
    Opinion delivered December 12, 1966
    [Rehearing denied January 16, 1967.]

      Catlett & Henderson, for appellant.

      Daggett & Daggett, for appellee.
   Carleton Harris, Chief Justice.

Sarah Panich, a resident of Marianna, Arkansas, died testate on March 8,1965. Under the provisions of her will, all of her property was devised and bequeathed to Ike Panich and David D. Panich, who were named co-executors. The will was admitted to probate on March 17, 1965, the nominated co-executors being appointed co-executors of the estate. On September 7, 1965, Dr. Mac McLendon of Marianna, appellee herein, filed a claim against the estate in the amount of $1,350.00, the claim being set out in a statement entitled, “To Balance Account Bendered.” Charges were shown in the amount of $150.00 per month from March, 1963, to December, 1963, both inclusive, and a like sum per month for December 1964, to February, 1965, both inclusive. The entire amount of the claim totaled $2,850.00, but credits were reflected in the amount of $1,500.00, leaving a balance of $1,350.00. A motion was filed by the executor, David D. Panich, appellant herein, to make the claim more definite and certain, and McLendon responded, setting out the basis for the amount sought, the answer reflecting the claim related to professional services rendered to Miss Panich. On hearing, the court allowed the claim, and from the judgment so entered, appellant brings this appeal. For reversal, it is first asserted that the trial court erroneously permitted appellee to change his cause of action, and it is then contended that the evidence was insufficient to establish the amount of the claim. We proceed to a discussion of these points in the order listed.

The first contention is based upon the fact that Dr. McLendon’s claim was a statement of account setting forth only charges and credits, without giving the reason for the alleged indebtedness. Before the hearing commenced, counsel for the appellant stated to the court that appellant objected to the claim and any testimony that might be taken in support of it, because it did not comply with Ark. Stat. Ann. § 62-2603 (Supp. 1965), in that it did not describe the nature of the claim. Counsel asserted that "it might be for professional services rendered; it might be for medicines furnished or prescribed ; it might be for a personal debt, or it might he for anything.” He objected to hearing proof, stating, “So, if Your Honor please, the nature of the debt has not been stated.” Appellant complains that the court permitted Dr. McLendon to establish the amount of his claim on a quantum meruit basis, and that he was not prepared to defend against this pleading, his understanding being that the claim was predicated upon an oral contract between appellee and Miss Panich as to the amount of the doctor’s charges for services rendered.

We do not agree with appellant that error was committed. This particular attack appears to be presented fpr the first time in this court, and there appears no objection during the trial in line with the present argument. Appellant’s objection went only to the sufficiency of the claim itself (because the nature of the indebtedness was not stated in the original claim filed); however, the answer filed in response to appellant’s motion to make more definite and certain, gave the information that the claim was for professional services, and the court exercised its discretion in permitting the amendment. This was done at the very outset of the trial, and before the introduction of any proof. Appellant did not seek a continuance, and permitted all six witnesses who testified for appellee to offer their evidence without objection. The evidence of the several doctors who testified related to the reasonableness of Dr. McLendon’s charges on a quantum meruit basis. The court was entirely within its rights in permitting the amendment, and did not abuse its discretion. See, among many cases, Missouri Pacific Transportation Company v. Brown 193 Ark. 304, 99 S. W. 2d 245; Missouri Pacific Transportation Company v. Williams, 194 Ark. 852, 109 S. W. 2d 924; Nance v. Eiland, 213 Ark. 1019, 214 S. W. 2d 217. Also, the particular argument here offered, as previously stated, was not presented to the Probate Judge, and we have repeatedly held that a litigant cannot, on appeal, raise an issue for the first time in this court. Angelletti v. Angelletti, 209 Ark. 991, 193 S. W. 2d 330.

Nor do we agree that the evidence was insufficient to establish the claim. Dr. McLendon testified that his charges for house calls are $5.00 each, and that he was due, at the time of the trial, a balance of $1,350.00. He, of course, could not testify as to any contract with the deceased because of the provisions of schedule § 2 Arkansas Constitution of 1874. Mrs. McLendon, who at times works with her husband in his office, testified that Miss Panich called the doctor numerous times between March, 1963, and February, 1965. The witness said that Miss Panich required Dr. McLendon’s services three or four times a day during the period of time mentioned, and that some of the visits made were at night.

Virginia Parnell, a practical nnrse, employed by appellee during the period in question stated that she saw Sarah Panich every day, sometimes as much as three or four times per day; that she would take Miss Panich medicine; that on numerous occasions, ‘ ‘ she let me give her shots.” Mrs. Parnell testified that Dr. McLendon would go to the home of this patient, upon request, five or six times a day.

Dr. Dwight W. Gray, of Marianna, testified that Miss Panich was his patient for three months during 1962, and he administered demerol to her for pain. The doctor said that he or his office nurse would visit her two or three times on some days. It was the opinion of the witness that a charge of $150.00 per month was a reasonable charge by a doctor who was called upon to render service to his patient three, four or five times per day. Dr. William C. Hayes testified that Miss Panich was a patient of his from 1946 until about 1960, and that when he last treated her, she required daily medication. He agreed with Dr. Gray that a charge of $150.00 per month would be a fair amount for the services that Dr. McLendon testified he rendered.

Appellant complains that there is no proof that there was an express or implied agreement that Miss Panich would pay for the services heretofore mentioned, but we think the proof warrants an inference that this was true. Certainty, there is no indication that Dr. Mc-Lendon was making these visits with no expectation of receiving remuneration. Let it be remembered that absolutely no evidence was offered to contradict the testimony heretofore referred to, so that the entire testimony, including Dr. McLendon’s testimony, that he was due a balance of $1,350.00 is completely undisputed.

It is established that Miss Panich was in need of medical services several times per day, and this fact was testified to by Doctors Gray and Hayes, who treated this patient for some time before Dr. McLendon became the physician for Miss Panich. Dr. Hayes testified that, even in 1959 or 1960, when he last treated her, her condition required daily medication, and this, of course, was some period of time before Dr. McLendon entered the case. It would appear, under the evidence, that as her condition worsened, more medication, and more visits were required.

Appellant complains that the charges were made on a monthly basis, and insists that allowance of same is improper, because the exact number of visits, together with the charge for same, is not shown. The simple answer to this is that, under the evidence, appellant is in no position to complain, for the charges, based on specific visits to the home would have been far greater than the amount of the claim filed. The testimony reflected that the ordinary charge for a home visit by doctors in Marianna was $5.00 per visit, and simple mathematics establishes that, during this two-year period of time, if Dr. McLendon only made one visit per day the charges would amount to something over $150.00 per month. One call per day is an inappreciable number, as it relates to the overall number of visits testified about during the trial.

The court found that the claim fairly and justly represented the value of the services rendered, and we are unable to say that this finding was against the preponderance of the evidence.

Affirmed.

Amsler, J., not participating.

      The record does not reflect whether David D. Panich, subsequent to the issuance of letters testamentary, became sole executor of the estate, but he is the sole appellant.

      Miss Panich was suffering from cancer of the lung, and also an arterial disease, which had affected her lower limbs, and prevented her from moving about, except on crutches.


text:
    George F. Carter, Trustee v. Cooper Jacoway
    5-4053
    408 S. W. 2d 875
    Opinion delivered December 12, 1966

      Warren & Bullion, for appellant.

      Spitzberg, Bonner, Mitchell & Hays, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a decree of the Pulaski Chancery Court (Second Division), wherein Cooper Jacoway, a Little Rock attorney, and appellee herein, was given judgment against George F. Carter, Trustee of the testamentary trust estate of E. L. Carter, deceased, in the amount of $9,411.31, together with all costs, and interest at the rate of 6% per annum from January 31,1966, until paid. The pertinent facts are as follows:

E. L. Carter died testate in 1950, and, by his will, created a trust, naming his widow, and son, George Carter, trustees, and naming George Carter and Mary Louise Carter Wallace, a daughter, as beneficiaries. Mrs. Carter subsequently died, and George Carter is the sole surviving trustee. Helen Carter was the wife of George Carter until their divorce, and George conveyed one-half of his interest in the trust estate to Helen, the result being that George Carter is the trustee of a trust estate in which he, his sister, Mary Louise Wallace, and his ex-wife, Helen Carter, are the beneficiaries.

In the latter part of 1962, the sister and ex-wife instituted suit in Pulaski Chancery Court against the trustee, charging Mm with mismanagement of the trust properties, with improper investments, breaches of his fiduciary duty, and with refusal to make records available to the beneficiaries; judgment was sought against him for approximately $33,000.00, and his removal as trustee was prayed. Carter then employed Jacoway to defend the suit, agreeing to pay an attorney’s fee of $1,500.00, without regard to the outcome of the litigation, and the additional sum of $3,000.00 if Jacoway “were able to defend the suit successfully and to give the trustee final protection against the charges in the suit.”

Subsequently, Carter decided that he would like to terminate the trust by disposing of the assets, distributing the proceeds, and obtaining his discharge as trustee. Jacoway was consulted with reference thereto, and the two men entered into an agreement, the terms of which were embodied in a letter from Carter to Jacoway, dated November 26, 1963. The principal property owned by the trust is a half interest in the Colburn Hotel, located in Denver, Colorado. The other half interest is owned by a Mrs. Evelyn Turner and her mother. Carter, as an individual, had an agreement with the Turners to receive a commission for selling the Turner interest in the hotel, the amount depending upon the sale price of the property. Carter agreed to pay Jacoway half of any net amounts that he might receive from the Turners for disposing of their interest. Because of the importance to this litigation of the letter of November 26, 1963, from Carter to Jacoway, heretofore referred to, same is herewith set ont in full:

Dear Mr. Jacoway:

In view of the many elements involved, I think it is a good idea for ns to have a memorandum concerning your employment in connection with the E. L. Carter Trust.

At the time that my sister, Mrs. Wallace, and my ex-wife, Helen Carter, brought suit against me in connection with my Trusteeship of the above Trust, I employed you to represent me as Trustee, and I agreed to pay you, as Trustee, a fee of $4,500.00 if you were able to defend the suit successfully and to give the Trustee final protection against the charges in the suit.

After that I asked you to represent me in the other matters connected with the Trust, including the disposition of the trust assets and the liquidation and termination of the Trust and my discharge as Trustee. It was and is my intention to sell the Colburn Hotel and when that is sold, together with the few remaining assets in Arkansas, I shall seek to have the Trust assets distributed and the Trust terminated. I shall want to receive an appropriate order of discharge that will protect me against any further claims that could be brought by the beneficiaries against me as Trustee. Of course, I will want you to represent me actively in all such matters. For those services I have agreed to pay you a reasonable fee and at this time I consider that a minimum fee for such services should be $10,000.00, in addition to the above. If any unusual services are required, or some now presently unexpected litigation not involving the matters in the first suit, should arise, I recognize that a reasonable additional fee will be in order, but I contemplate that the Trust should be wound up without further unusual services, other than as above contemplated.

In addition, I have agreed individually to pay you half of any net amounts, over and above expenses, that I may receive from Miss Evelyn Turner or her mother as an award or compensation for my services as an individual in selling their interest in the Colburn Hotel.

If any matters involving the iticeland Hotel should arise, and if I should find that I need your services in that connection, that work is outside anything contemplated above and will be determined upon an independent and separate basis.

Please know that I appreciate the efforts that you have made in my behalf in the past.

Very truly yours,

Greorge F. Carter

The Colburn Hotel did not sell, and on April 2, 1964, Jacoway directed a letter to Carter stating, “Since the Hotel did not sell, I want you to treat this letter as my voluntary termination of the agreement so far as it related to any money that you, as an individual, might receive from the Turners or from the sale of their property. * * * This letter does not change or affect in any way, of course, the fees that we have agreed on to be paid to me for representing you as Trustee of the E. L. Carter Trust, and they will remain fixed as agreed.” By summer of the same year, Cai-ter had only paid, in addition to some expense money (about which there is no controversy), the total sum of $1,500.00 on Jacoway’s fee, and Jacoway, testifying that he was disturbed because Carter was making no effort to sell the hotel, talked to appellant on the telephone, and, during the conversation, said, “Why don’t you pay me for services up to date, and get somebody else for whatever you need from here on out?” On December 7, Carter directed a letter to Jacoway asking that the latter send “a statement for your legal services to our trust,” but on December 16, Jacoway received the following telegram from Carter:

“PLEASE CONSIDER YOUR RELATIONSHIP AS ATTORNEY FOR THE ESTATE OF E L CARTER TERMINATED AS OF THIS DATE REASON FOR THIS IS THAT YOUR SERVICES ARE NO LONGER REQUIRED I HOPE THAT YOUR FEE FOR PAST SERVICES CAN BE SUCCESSFULLY LIQUIDATED AS SOON AS POSSIBLE.”

This litigation really contains two phases, first, whether Jacoway is entitled to the $3,000.00 for defending the first suit filed by Carter’s sister, and ex-wife, and second, whether Jacoway is due a fee, and if so, in what amount, for services contemplated in Paragraph 3 of Carter’s letter of November 26, 1963, to Jacoway.

We will first discuss the $3,000.00 item. Carter’s defense to this portion of the fee is that Jacoway did not defend the suit on the merits nor give him “final protection” against the charges made in the complaint. The record reflects that Jacoway held a number of conferences with his client, discussing the charges that had been brought, reviewing a settlement agreement that Carter had previously entered into with a sister, and reviewing the divorce proceedings with Helen Carter. The attorney testified to a number of conferences with Attorney Phillip Allen of Little Rock, who represented Mrs. Wallace and Mrs. Carter. A number of pleadings were filed, and the case was transferred from First Division Chancery Court to Second Division. A temporary injunction was modified so that Carter could continue as trustee, and a motion was filed by Jacoway to make the complaint more definite and certain; further, a settlement was discussed between Jacoway knd Allen. However, no agreement could be reached, and sometime in March, 1963, Allen took a non-suit.

Let it first be said that there was, of course, nothing that Jacoway could do to prevent the non-suit being taken. This was a matter entirely beyond his control. Allen testified that he dismissed the suit without prejudice, because he discovered that he could not obtain enough evidence to sustain the charges and allegations, and the attorney stated that if he refiled the complaint, it would not be on these same allegations. Allen still represents Mrs. Wallace and Mrs. Carter, and appellee is of the view that Carter has received “final protection” from the charges in the Pulaski County complaint, since the suit was dismissed on March 7, 1963, and any attempt to reinstate those charges would likely be barred, by laches or limitations. However, be that as it may, Jacoway testified that he told Carter repeatedly during 1963, and while the latter was still in Little Pock in 1964, that a “petition for instructions” should be filed, “that we ought to try to get him completely cleared not only on these charges but on everything past. That we ought to come in and set up what he had done and ask for the court’s approval of it and I never could get him to do it. He did not want to come into court. He did not want to arouse sleeping dogs.” We find no denial of this statement by Carter, but even so, the Chancellor is in a better position (than this court) to determine .the truth of disputed statements. Jacoway denied that he was required to defend the case, on the merits in order to earn the fee, and, of course, the letter, heretofore, quoted, which sets out the agreement, makes no mention of that fact. Many suits are successfully defended without a trial being held, i. e., they are frequently settled to the satisfaction of a defendant, or a suit is sometimes dismissed by a plaintiff simply because of a show of strength on the part of the defendant. We do not think the court erred in allowing the $3,000.00.

Jacoway, in his pleadings, sought recovery of the $10,000.00, mentioned in Paragraph 3 of the letter, but the court allowed the sum of $6,250.00 on a quantum meruit basis, holding that this was the reasonable value of legal services rendered by the attorney to Carter, as trustee of the testamentary trust.

Appellant seems to take the position that Jacoway was not entitled to the $10,000.00, or any part thereof, unless the hotel was sold. Of course, it is correct that it was contemplated that the $10,000.00 fee would not be paid until after the hotel was sold, but this was true only because of the fact that the trust estate could not be finally liquidated until after the sale of the hotel. This contention will subsequently be more fully discussed.

Jacoway, although he stated that he could not be exact because he did not always keep a record of time spent on Carter’s business, testified to the approximate amount of time that he had spent representing the trust estate, and four Little Eock attorneys gave opinions as to the reasonable value of Jacoway’s services, ranging from $6,500.00 to $7,500.00. Carter asserts that most of Jacoway’s time was spent in efforts to sell the Colburn Hotel, which, according to Carter, involved no legal work, and for which Jacoway was to be paid by getting a part of the fee that he (Carter) would receive from the Turners for selling their interest.

The court did not set out the basis of the $6,250.00 allowed, but we do not agree that the record shows that Jacoway was acting as merely a “real estate broker,” in the effort to sell the Denver property. The lawyer denied this statement, and he mentioned labors performed for the trust, in working out, from a legal standpoint, problems connected with the sale of the hotel. The letter (November 26, 1963) offers no suggestion that Carter’s claim is correct, and the evidence further shows that Jacoway’s expenses were to be paid for the two Denver trips (which would hardly seem to be in line with Carter’s contention). Appellant mentioned that he wanted Jaco way to go to Denver, because of the latter’s experience in “sales and contracts.” Mr. Carter classed this as the services of a “real estate salesman,” but certainly the “contract” feature speaks more of legal services. Of course, it goes without saying that attorneys almost daily render services to their clients in connection with real estate sales, and this frequently includes being present at the sale itself.

It will be remembered that the letter of November 26, 1963, written by Carter, first sets out in Paragraph 2 the requirements to enable the $4,500.00 fee to be earned. In Paragraph 3 the' requirements for the minimum fee of $10,000.00 are set out. It is only after both of these matters are fully covered that Carter, in his letter states:

“In addition [our emphasis,] I have agreed individually to pay you half of any net amounts * * * that I may receive from Miss Evelyn Turner or her mother * * * for my services * * * in selling their interest in the Colburn Hotel.”

It seems very clear that the Turner fee (based on the sale of the Turner interest in the hotel) was to be in addition to the other amounts already mentioned, and, in fact, Carter subsequently (by letter of March 22, 1964), suggested that this arrangement (splitting of the Turner fee) be abrogated, and he said that he would pay a reasonable attorney’s fee in lieu thereof. While this letter related to the individual agreement between the two, it is mentioned because it shows affirmative recognition of the fact that legal services had been rendered, which was subsequently denied by Carter. Ten days later, Jacowav responded to this letter by writing Carter: '

“I want you to treat this letter as my voluntary termination of the agreement so far as it relates to any money that you, as an individual, might receive from the Turners or from the sale of their property.”

He added:

“This letter does not affect in any way, of course, the fees that we have agreed on to be paid to me for representing you as Trustee of the E. L. Carter Trust, and they will remain fixed as agreed.”

Carter approved the contents of the letter by signing his name beneath the words, “the above correctly sets forth my understanding of the agreement.” The evidence quoted is rather persuasive to the effect that Jacoway was rendering legal services.

Carter’s testimony is not at all clear in some instances. For example, he stated in his testimony. that Jacoway never represented him as an attorney, or acted as an attorney for the estate after the non-suit was taken in the original lawsuit. This statement was reiterated several times, though subsequently Carter said that he did employ Jacoway to handle additional matters for the trust. Again, Carter stated that he was shocked when Jacoway called him over the phone wanting some money, because he (Carter) assumed that he did not owe Jacoway anything. Appellant stated that he had paid the $1,500.00 fee, and the hotel had not been sold, so he did not understand why he owed Jacoway more money. However, as already pointed out, he subsequently wrote Jacoway a letter telling appellee to send him a statement for legal services to the trust— and then — just a few days later — Carter sent the wire to Jacoway advising that the latter’s services were no longer required as attorney for the estate, and mentioning that “I hope that your fee for past services can be successfully liquidated as soon as possible.” So apparently, Carter, both from his letter and telegram, did recognize that Jacoway was due some additional fee.1

Appellant, in his brief, states that “surely an attorney who tells his client to get another lawyer cannot contend that he has been wrongfully discharged.” We do not consider Jacoway’s message to Carter to mean that he (Jacoway) was cancelling the contract between the two men. Certainly, a lawyer is entitled to request and receive some part of the fee which he feels to be due without such a request being taken as a withdrawal of representation. Though Carter wrote Jacoway to send a bill, setting out the work that had been done, in less than ten days thereafter, he sent the telegram terminating Jacoway’s services. In plain everyday language — he fired him! This brings us to Carter’s contention that, at any rate, Jacoway was not entitled to a further fee because the trust assets had not been distributed, the trust had not been terminated, and he (Carter) had not obtained an appropriate order of discharge.

Let it be remembered that the trust could not be terminated until the Colburn Hotel was disposed of, and Carter relies heavily upon that fact. The simple answer to appellant’s argument is that, irrespective of when the hotel was, or is, sold, Jacoway would not, or will not, be able to render services to terminate the trust estate, for the reason that Carter ended the attorney’s employment. Jacoway testified that he was ready and willing to carry out his part of the agreement at the time he received the notice of termination, but it is obvious that he was not given an opportunity to do so. We held, as early as 1878, that a lawyer who is wrongfully discharged is entitled to the entire fee as fixed by the agreement, regardless of how much work has been performed. Brodie, et al v. Watkins, 33 Ark. 545. That holding has been reiterated several times.

Here, appellee was not awarded the full fee, but only a portion thereof on a quantum meruit basis. We are unable to say that the Chancellor’s award- was improper, or that his findings were against the preponderance of the evidence.

Affirmed.

      In the meantime, Carter had remarried, and he and his new wife were living at the Colburn Hotel.

      A suit actually has been filed in Federal District Court in Denver, Colorado, but none of the charges, according to Allen, are based upon the same allegations that were contained in the complaint under discussion.

      The court also rendered judgment in the amount o| .,$161.30 for a balance due on expenses incurred in connection with the legal services.

      The other beneficiaries of the triist are not objecting to JacowayVfees.


author: Ed. F. McFaddin, Justice. George Rose Smith, Justice,

text:
    Ark. State Hwy. Comm. v. Doyne E. Jerry, et al
    5-4048
    408 S. W. 2d 864
    Opinion delivered December 12, 1966

      George 0. Green and Phil Stratton, for appellant.

      Mahony & Yocum, for appellee.
   Ed. F. McFaddin, Justice.

The question in this 'case is the legal width of Highway No. 167 in front of the appellee’s store. The Chancery Court held that the fight of way was only 80 feet wide instead of the 120 feet, as urged by the appellant; and from that decree there is this appeal.

The appellant, Arkansas State Highway Commission, filed this suit seeking a mandatory injunction to compel the appellee, Doyne E. Jerry, to remove his gasoline pumps and a portion of the store building as encroachments on the right of way of Highway No'.' 167 in Union County. The appellant alleged that in 1934 the County Court of Union County made an order describing the center line of the highway and fixing the right of way to be 60 feet on each side of the center line at the location here involved; and that the appellee had encroached on the said right of way.

The appellee offered two defenses to the complaint: (a) that there had been no notice given to the landowner in any way of the said 1934 Court order; and (b) that the County Court order of 1934 did not in fact make a right of way in front of the appellee’s property any wider than the pre-existing 40 foot distance on each side of the center line.

The cause was heard ore tenus by the Chancery Court and resulted in a decree in favor of the appellee. The decree contains these findings, which fairly summarize the preponderance of the evidence on the matters mentioned:

“1. An Order of the County Court of Union County, Arkansas, was entered on May 2, 1934, copy of which is attached to the Complaint, and appears as Matter No. 31-B on the County Court Records of Union County, Arkansas, asking for changes in whole or in part of State Highway No. 167. This Court Order purported to cover a distance of some 6,400 lineal feet on Highway 167 to the South of El Dorado, Arkansas. So far as the records in this case show, no notice was given to anyone of the entry of said Court Order. The burden of proof was on the plaintiff in this case to show that such notice was given and it has failed to sustain said burden of proof. . . . The State of Arkansas did not enter into possession of 60 feet of right-of-way to the left of ,..:..the center line nor did it enter into possession of ■ ,-more than 40 feet to the left of the center line. . . . .. ■ That according .to the Stipulation of counsel for ■ plaintiff and defendant the course of the road was •, not changed in front of the lands' acquired by the ' ■ defendant, Doyne E. .Jerry, extending North from' said intersection and said road is presently located in exactly the same location that it was prior to the entry of said order in 1934 so that there was no notice by reason of change in the location of the road. ’ ’

From the Chancery decree refusing the desired relief, the appellant prosecutes this appeal, urging two points:

“I. The trial court erred in finding appellees and their predecessors in title had no notice of the entry of the 1934 county court order.
“II. The trial court erred in finding that the 1934 county court order condemned only a 40-foot right of way left of the center line between Stations 232 plus 60 and Station 238, the end of the job.”

Appellant’s second point involves a dispute between the witnesses as to whether the 1934 County Court order actually had enough descriptive power to reach or involve the right of way in front of appellee’s store building. Since we find the Chancery decree was correct on appellant’s first point — i. e., absence of notice — it becomes unnecessary for us to decide the second point.

In recent years we have had occasion to consider a large number of cases which involved County Court orders made under Act No. 611 of 1923 (as now found in Ark. Stat. Ann. § 76-917 [Repl. 1957]). Some of these cases are: Miller County v. Beasley, 203 Ark. 370, 156 S. W. 2d 791; State Hwy. Comm. v. Holden, 217 Ark. 466, 231 S. W. 2d 113; Ark. Hwy. Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283; Ark. Hwy. Comm. v. Cook, 233 Ark. 534, 345 S. W. 2d 632; Ark. Hwy. Comm. v. Anderson, 234 Ark. 774, 354 S. W. 2d 554; Ark. Hwy. Comm. v. Cook, 236 Ark. 251, 365 S. W. 2d 463; Ark. Hwy. Comm. v. Dean, 236 Ark. 484, 367 S. W. 2d 107; and Ark. Hwy. Comm. v. Scott, 238 Ark. 883, 385 S. W. 2d 636.

We have repeatedly held that the burden is on the Highway Commission claiming under said County Court order to show that the affected landowner had notice of said County Court order; and that such notice could be established in any one of several ways, as by entry on the land under the authority of the order, or by the landowner filing a claim for right of way included in the said order, or by any act tantamount to a showing that the landowner knew of said order or had notice of facts which, if reasonably pursued, would have resulted in such notice. In the case at bar the appellant insists: that when the County Court order was made in 1934 the particular store building tract here involved (location in Section 23) was owned by a Mr. Smith, who also owned land in the adjoining Section 22; that a tract of Mr. Smith’s land was taken in Section 22 for a borrow pit, the dirt from which was used to elevate the right of way; that even though Mr. Smith filed no claim against the County, still he knew of the borrow pit taking; and that such knowledge of the borrow pit taking put him on notice of the County Court order enlarging the right of way from 40 feet to 60 feet on either side of the center line in front of the store building here involved. Of course, notice to Mr. Smith, as the owner in 1934, would be notice. to the appellee, who acquired title from Mr. Smith by subsequent mesne conveyances. Because of these facts the appellant insists that the Chancery decree should be reversed.

The answer to the appellant’s argument on the notice question is found in the stipulation made by the Highway Commission in the Trial Court, and by the application of our cases to such stipulation. In the course of the trial below, the Commission made this stipulation: “The State stipulates that for the distance along Highway 167 that the roadway was not changed in 1934 along this 420 foot [strip] we claim . . . .” Thus there was no entry by the Highway Commission on the 20-foot strip here involved. The right of way remained the same. The fact that some other land was taken in another section for a borrow pit would not lead a prudent person to suspect that the right of way was widened on the tract here involved. To show his own good faith in the matter, but not having the effect to bind the appellant, the appellee testified that before he enlarged his store building he checked what he thought were right of way signs — i. e., utility poles, etc. — and these all indicated a right of way only 40 feet wide from the center line on his side of the highway.

The holding in State Hwy. Comm. v. Dobbs, 232 Ark. 541, 340 S. W. 2d 283, is ruling here. In that case there was a court order in 1939 widening the right of way in front of a store building in the town of Coal Hill, but there was no actual widening done by entry at that place. At another place a short distance away from the store building there was a widening, but not in front of the store building involved. That is exactly the situation in the case at bar; and the holding in the Dobbs case is ruling here. In addition to Highway v. Dobbs, supra, attention is also called to Highway v. Anderson, supra, and Highway v. Cook, supra. We conclude that the Chancery decree should be affirmed because of absence of notice to the landowner of the 1934 County Court order.

Affirmed.

George Rose Smith, J., concurs.

George Rose Smith, Justice,

concurring. Counsel for both sides appear to have overlooked that part of Rule 9 (d) which provides that when a map, plat, or other exhibit must be examined for a clear understanding of the testimony, the burden is on the appellant either to attach a reproduction of the exhibit to his abstract or to obtain from the court a waiver of that requirement. Here the briefs of both parties repeatedly direct our attention to certain exhibits, but they have not been reproduced. I’m happy to see the case being decided on its merits, but in candor I must say that without the exhibits I found the testimony incomprehensible. Hence this concurrence.-


author: Ed. P. McFaddin, Justice.

text:
    Harvey G. Combs, receiver for United Automobile Ins. Co. v. J. R. Haddock
    5-4060
    408 S. W. 2d 861
    Opinion delivered December 12, 1966

      Nathan Gordon, for appellant.

      G. Byron Smith, Jr. and Wright, Lindsey & Jennings (By Phillip S. Anderson, Jr.), for appellee.
   Ed. P. McFaddin, Justice.

This appeal necessitates a study of certain statutory provisions in tbe Arkansas Insurance Code concerning claims in tbe liquidation of a domestic insurance company.

The United Automobile Insurance Company (formerly named Victor National Casualty Company) is is now being liquidated by the appellant as Insurance Commissioner of Arkansas, acting under the orders of the Circuit Court of Sebastian County. This appeal involves a claim which appellee, J. R. Haddock, alleges is entitled to priority in the distribution of the assets of the insurance company. The trial court — in which the receivership and liquidation proceedings are pending— held that the appellee’s claim was entitled to the prayed priority; and the Insurance Commissioner prosecutes this appeal, listing only one point:

‘ ‘ The trial court erred in holding that the claimant, Haddock, is the owner of a special deposit claim, and entitled to payment in full of his claim from the special deposit prior to the payment of any other claims against the insurer.”

The cause was tried on stipulated facts, which we copy practically in toto:

“1. On October 31, 1963, J. R. Haddock recovered judgment in the Circuit Court of Pulaski County, Arkansas, in the amount of $8,118.90 against the Estate of Don W. Tubbs, deceased. Don W. Tubbs was insured by United Automobile Insurance Company (formerly Victor National Casualty Company.) under a policy that required the insurance company to defend the suit against the estate of the decedent and to pay the judgment. The attorneys who provided the estate with a defense on behalf of the insurance company filed notice of appeal but a supersedeas bond was not filed and the appeal was never perfected.
“2. The judgment against the Estate of Don W. Tubbs was not paid within thirty days of notice of the judgment to the insurer, and suit was filed by Haddock against the insurance company on December 6, 1963, in the Circuit Court of Pulaski County. The agent for service for the insurance company did not answer, and, on January 2, 1964, judgment by default was entered against the insurance company in the total amount of $11,191.25, which figure included a 12% penalty, costs, and an attorney’s fee. “3. On January 13, 1964, Haddock caused a Writ of Garnishment to be issued to the Insurance Commissioner of Arkansas, which writ specifically sought proceeds in a special deposit fund required by Ark. Stat. Ann. § 66-2209 (b) (1963 Supp.). . . . The Insurance Commissioner answered the writ of garnishment by stating that he had a deposit of $50,000 in securities as required by law for the payment of claims against the insurance company. . . . On February 4, 1964, following a hearing that was attended by attorneys for Haddock and the Insurance Commissioner, the Pulaski Circuit Court entered judgment against the Insurance Commissioner on the writ of garnishment. The Commissioner was directed to give forty-five days’ notice to the insurer as required by statute, and upon expiration of that time to sell a sufficient amount of the securities to discharge the judgment in favor of Haddock. . . . The judgment on the writ of garnishment was never satisfied by the Insurance Commissioner and no further action has been taken by the Insurance Commissioner (as garnishee or receiver), the claimant or the Court on the judgment on the writ of garnishment against the Insurance Commissioner. “4. On March 5, 1964, the Insurance Commissioner instituted delinquency proceedings against the insurance company in the Circuit Court of Sebastian County. ’ ’

Thus, the simple facts are that Haddock and Tubbs were in a traffic mishap in Pulaski County; that Tubbs was insured by the United Automobile Insurance Company; that Haddock recovered judgment against the estate of Tubbs in Pulaski County; that the judgment was not paid; that Haddock then obtained judgment against the Insurance Company in the Circuit Court of Pulaski County as Tubbs’ insurance carrier; that the judgment was not paid by the insurance company; that Haddock had garnishment issued against the Insurance Commissioner on January 13, 1964; that there was a judgment in the garnishment proceeding on February 4,1964; and that the Insurance Commissioner caused the United Automobile Insurance Company to be placed in receivership by order of the Sebastian Circuit Court on March 5, 1964. The cardinal dates are these: (a) appellee had garnishment issued against the Commissioner on January 13, 1964; (b) the Insurance Commissioner had the United Automobile Insurance Company placed in the hands of the appellant as Receiver for liquidation on

T96I ‘S

The appellee insisted, and the Trial Court held, that when the appellee filed the writ of garnishment on January 13, 1964, such garnishment became a lien on the “special deposit” held by the Insurance Commissioner under the provisions of Ark. Stat. Ann. § 66-2209 (b) (Repl. 1966), the germane portions of which read: “ (b) All insurers . . . shall deposit through the Commissioner .. . securities . . . having at all times a market value of not less than $50,000.00, conditioned for the payment of creditors of the insurer in this State and the prompt payment of all claims arising and accruing to any per-

f yapqg sup ut uos

Appellee claims that the $50,000.00 mentioned in Ark. Stat. Ann. § 66-2209 (b), as above quoted, is a “special deposit” (Ark. Stat. Ann. § 66-4801 [Repl. 1966]) for the benefit of Arkansas people, and that when the garnishment was issued on the Insurance Commissioner on January 13, 1964, such garnishment created a lien in favor of the appellee under such lien cases as St. L. SW. Ry. v. Vandenberg, 91 Ark. 252, 120 S. W. 993. In this line of reasoning, as above sketched, the appellee insists, and the Trial Court held, that appellee was entitled to the first and prior payment in full of his judgment of $11,191.25.

In opposition, the appellant points out that the appellee’s garnishment lien was on January 13, 1964, and that the delinquency proceedings against the insurance company were instituted by appellant on March 5, 1964 ; and that Ark. Stat. Ann. § 66-4820 — a part of the Arkansas Insurance Code — requiring liquidation of insurance companies, says in part: “Any lien obtained by any such action or proceeding within four months prior to the commencement of any such delinquency proceeding . . . shall be void as against any rights arising in such delinquency proceeding. ’ ’ On account of this quoted statute the appellant insisted — unsuccessfully in the Trial Court — that the appellee had only a general claim like any other creditor, since the lien on his garnishment was obtained within four months before the liquidation proceedings.

So much for the claims of the parties. We hold that there is a middle ground between the position of the appellant and that of the appellee; and we now hold in accordance with such “middle ground” position. The $50,000.00 was and is a special deposit “conditioned for payment of creditors of the insured in this State and the prompt payment of all claims arising and accruing to any person in this State”; and the appellee is entitled to participate in the special deposit. But the appellee is not entitled to be paid in full out of said $50,000.00 special deposit, to the prejudice of other Arkansas creditors. This is true because the lien of appellee’s garnishment was obtained within four months of the commencement of the delinquency proceeding; and the statute (Ark. Stat. Ann. § 66-4820) provides that any lien obtained within four months “prior to the commencement of any such delinquency proceeding , . . shall be void as against any rights arising in such delinquency proceeding.” One of the rights that arises in the delinquency proceeding is the right of Arkansas creditors to he paid from the $50,000.00 special deposit.

The $50,000.00 special deposit does not go into the general assets of the insurance company for the payment of creditors everywhere, hut is held as a special deposit from which Arkansas creditors, including appellee, are entitled to be paid pro rata; and if appellee is not paid in full from the $50,000.00 special deposit, then for the unpaid balance, appellee will participate in the other assets of the corporation in the general liquidation, as provided by Ark. Stat. Ann. § 66-4819 (Repl. 1962).

The judgment of the Trial Court is reversed and the cause remanded for the entry of a judgment and for further proceedings in accordance with this opinion.

Amsler and Bland, JJ., not participating.

       The “Arkansas Insurance Code” is Act No. 148 of 1959, and may be found in Ark. Stat. Ann. § 66-2001 et seq. (Repl. 1966). The Act is not a “uniform code” act, although portions of the Arkansas Insurance Code contain provisions taken from the Uniform Insurers Liquidation Act. These provisions are referred to in § 658 of the Act No. 148. See Ark. Stat. Ann. § 66-4821 (Repl. 1966).

      The judgment here challenged recites: “That J. R. Haddock is entitled to payment of his claim in full before the claims of other creditors of the special deposit fund are paid; . . .


author: George Rose Smith, Justice.

text:
    L. A. Phillips v. State of Arkansas
    5238
    408 S. W. 2d 883
    Opinion delivered December 12, 1966

      A. M. Coates and J. Patrick Reilly, for appellant.

      Bruce Bennett, Attorney General; Fletcher Jackson, Asst. Atty. General; James C. Wood, Asst. Atty General, for appellee.
   George Rose Smith, Justice.

Charged with having murdered his wife, the appellant was found guilty of manslaughter and was sentenced to two years imprisonment. His principal contention is that the State’s proof was not sufficient to support the verdict.

The State’s evidence was entirely circumstantial. The accused, his wife, and their nineteen-year-old daughter Linda lived in two rooms at the back of a restaurant operated by the family in Helena. On Tuesday night, August 31, 1965, the parents slept in one room and Linda in the other. The next morning Mrs. Phillips did not awaken; she was unconscious and suffering convulsions. After some delay Phillips and his daughter succeeded in finding a doctor, who arranged for Mrs. Phillips’s admission to a hospital. She died the following Sunday. Whether she ever regained consciousness was a disputed issue.

The State’s proof consisted primarily of medical evidence derived from an autopsy. Mrs. Phillips’s body was covered with many bruises, but the only one sufficiently serious to have led to her death was on the right side of her head. That bruise appeared to have been the result of a heavy blow inflicted by some blunt instrument. That blow brought about a massive cerebral hemorrhage, which unquestionably caused the woman’s death.

There was abundant proof, not denied by Phillips himself, that for many years he and his wife had engaged in petty fights. As Linda put it, “There would be a lick or two pass about every day over a period of about ten years.” There is no proof that Phillips had ever inflicted a serious injury upon his wife in the past. Some of the bruises disclosed by the autopsy were recent; others had been inflicted somewhat earlier.

Both Phillips and his daughter testified that some two weeks before the morning when Mrs. Phillips was found to be unconscious she had suffered a heavy fall against a piece of concrete, injuring her head. They also testified that on the Sunday preceding the onset of her fatal illness she had fallen and struck her head against a shelf in the restaurant. The State offered no medical evidence to assist the jury in determining whether those earlier falls were capable of producing the hemorrhage that proved to be fatal.

In cases not dissimilar to this one we have held that when the State relies solely upon circumstantial evidence it must negate every other reasonable hypothesis of the cause of death. Taylor v. State, 211 Ark. 1014, 204 S. W. 2d 379 (1947); Bowie v. State, 185 Ark. 834, 49 S. W. 2d 1049, 83 A. L. R. 426 (1932). This case falls within the purview of those decisions. No effort was made by the prosecution to show that Mrs. Phillips’s prior falls were too remote to have brought about the fatal hemorrhage. There is no intimation of what the blunt instrument might have been that was found to he the cause of death. There are so many deficiencies in the State’s case that we are unwilling to sustain the conviction. Suspicion cannot be allowed to take the place of proof.

As a new trial is necessary we point out that the court properly refused to allow a witness to relate a statement assertedly made by Mrs. Phillips in an interval of consciousness shortly before her death. The statement, which tended to exculpate the accused, was not admissible either as a dying declaration or as a part of the res gestae.

Reversed and remanded for a new trial.


author: George Bose Smith, Justice. Ed. F. McFaddin, Justice,

text:
    City of Osceola v. Stella C. Whistle et al
    5-4133
    410 S. W. 2d 393
    Opinion delivered December 12, 1966
    [Rehearing denied February 6, 1967.]

      Mitchell D. Moore and Smith, Williams, Friday & Bowen (By Herschel H. Friday), for appellant.

      Marcus Evrard and Oscar Fendler, for appellee.
   George Bose Smith, Justice.

The single question here is whether the city of Osceola has the power to condemn land beyond its city limits as a right-of-way for an electric transmission line. The chancellor held that the power does not exist and accordingly enjoined the city from attempting to condemn the property of the plaintiffs, now the appellees.

All the facts were stipulated. For many years Osceola has owned and operated a producing and distributing electric system, furnishing electricity to its citizens and to others outside the city. In 1965 the city executed a contract by which it was to purchase electrical power from the Southwestern Power Administration, an agency of the federal government. The city has issued revenue bonds to pay for the construction of a new transmission line extending’ about fifty miles from Osceola to a point near Jonesboro, which is to he the place of delivery of the SPA power.

The proposed line will cross the plaintiffs’ property, which lies outside the city limits of Osceola. The city failed in its efforts to purchase the needed right-of-way across the property and was about to file a condemnation proceeding when the plaintiffs brought these suits, consolidated below, to enjoin the city from instituting such a proceeding. The parties agree that a justiciable issue is presented.

There is no controversy about the abstract principles of law that govern a case of this kind. With respect to the powers of a municipality we quoted Judge Dillon’s familiar recapitulation in Cumnock v. City of Little Rock, 154 Ark. 471, 243 S. W. 57, 25 A. L. R. 608 (1922): “It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: First, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied.”

The rule of strict construction is especially applicable to statutes conferring the power of eminent domain, as the exercise of that power can entail harsh consequences to the landowner. ‘ ‘ The authority for the taking of private property for public use should be clearly expressed and the statute strictly construed.” City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30 (1958).

Here the city of Osceola first insists that by statute municipalities in Arkansas have expressly been given the power to condemn land outside the city limits as a right-of-way for electric transmission lines. Before examining the statutes that are cited we point out that in some instances the legislature has specifically authorized a city to condemn property outside its geographical limits. Such unmistakable delegations of power exist with reference to patural gas transmission lines, Ark. Stat. Ann. § 19-4813 (Repl. 1956), water supplies, § 35-902 (Repl. 1962), and public parks, § 35-901. We attach some significance to the fact that the legislature has seen fit in those instances to leave no doubt about its intention to permit the city to condemn property beyond its corporate limits.

There is no similar clarity of purpose in the statutes relied upon by the appellants. Counsel assert that an express delegation of the authority now claimed is to be found in any one of three sections of the compiled statutes. We are unable to agree with this contention.

First is Section 35-902, which was originally part of a comprehensive 1875 statute pertaining to municipalities. This is the language relied upon: “The right and power of eminent domain is hereby conferred upon municipal corporations to enter upon, take and condemn private property for the construction of wharves, levees, parks, squares, market places, or other lawful purposes.” Construing the statute strictly, as we must, we cannot read into the phrase, “or other lawful purposes,” the delegation of authority now contended for by the city. This sentence was added to the statute by Act 155 of 1935, which dealt primarily with municipal waterworks. In the 1935 act the legislature specifically provided that property for a waterworks might be condemned in a different county from that of the municipal corporation. Thus if there is any inference to be drawn from the 1935 amendment, it would be that the legislature meant for this extraterritorial authority to be limited to waterworks property.

Second is Section 19-2313, which is derived from the same 1875 statute. This section confers the power of eminent domain for the purpose, among other things, of lighting streets, alleys, public grounds, wharves, landing places, and market places. All these places are ordinarily within the city. Again construing the act strictly, we are not convinced that the legislature chose its language for the purpose of conferring the power now claimed by the city.

Third is Section 35-401. This was the first section of an 1895 act which, as we interpret it, dealt exclusively with waterworks. The act was amended in 1907. As we attribute significance to the amendment we are enclosing the amendatory language in brackets: ‘ ‘ All municipal corporations in this State, and all corporations organized for the purpose of supplying any town, city or village in this State, or the inhabitants thereof with water, [or with electrical power, generated by water, for supplying such city, town or village, with such electricity as may be required for lighting same, operating machinery or running street cars, or other cars on tracks for public purposes only], are hereby authorized to exercise the power of eminent domain, to condemn, take and use private property for the use of such corporations when necessary or convenient to carry out the purposes and objects of said corporations.” Section 6 of the original 1895 statute recognized the possibility that the land to be condemned might lie in more than one county.

Counsel for the appellant rely primarily upon the words that we have bracketed, which were added in 1907, as a basis for their contention that the city may condemn land outside its corporate limits to acquire electrical power generated by water, as the SPA power is said to be. We do not think the statute, strictly construed, to be susceptible of that interpretation. By the original act both municipal corporations and private corporations organized for the purpose of supplying cities with water were given the power of condemnation. The bracketed language that was added in 1907 was inserted in such a way as to be applicable only to the private corporations, not to the municipalities. The opening phrase in the amendatory language, “or with electric power,” makes a complete and intelligible sentence only if it refers back to corporations organized to supply a municipality or its inhabitants with such power. It is impossible to connect this newly added clause with the opening phrase in the original act, “All municipal corporations ...”

Thus we find no express statutory delegation of the power to condemn the right-of-way in question. Counsel for the appellant argue alternatively that the power exists under Judge Dillon’s third category, as an essential and indispensable accessory to the city’s express power to operate a municipally owned light plant. The trouble is, there is not a line of proof to support this contention. Whether it is necessary for the city to run a transmission line for a distance of forty-five miles for the acquisition of electric power is a fact question upon which the record is silent.

During the oral argument it was suggested by counsel for the city that, since the appellees were the plaintiffs in the case, they had the burden of proving that the construction of the proposed power line was not essential and indispensable to the operation of the municipal plant. This contention is not tenable. The plaintiffs made a prima facie ease by showing that there was no express or implied statutory authority for the condemnation of their land. Seldom does the law require one to assume the burden of proving the negative. We regard the city’s present contention as an affirmative defense peculiarly within its own knowledge and appropriately one upon which it had the burden of proof.

Affirmed.

Mc.Faddin, J., dissents.

Ed. F. McFaddin, Justice,

dissenting. I respectfully dissent from the Majority because I am firmly of the opinion that the decree should be reversed and we should decide that the City of Osceola has the power to condemn land beyond its city limits as a right of way for an electric transmission line.

At the outset I desire to mention that this case was tried on stipulated facts, and I copy certain pertinent paragraphs of the stipulation:

“I. Osceola is a city of the First Class. It has owned and operated an electrical producing and distribution system for many years. Its electrical system has furnished electricity to citizens living within the City, as well as persons living beyond the City, as well as persons living beyond the city limits.
“II. In order to obtain electrical power, the City of Osceola in 1965 entered into a contract with the Southwestern Power Administration.
“III. The City of Osceola, by Ordinance No. 574, has authorized the issuance of Electric Light and Power Revenue Bonds, and has issued such bonds, receiving the proceeds therefrom in the approximate amount of $1,600,000.00.
“IV. In order to obtain the electrical power under the said contract, the City of Osceola has determined that it will construct and operate a new electrical transmission line extending about fifty miles from Osceola across lands in Mississippi and Craighead Counties, Arkansas, to tie on to the source of power belonging to Southwestern Power Administration near Jonesboro, Arkansas. . . .
“IX. The sole question presented for determination is whether or not the City of Osceola, Arkansas, a city of the First Class, has the power under the Constitution and the laws of Arkansas to condemn land for a right-of-way across property owned by the plaintiffs and which is situated outside the city limits of Osceola, for use in the construction of an electrical transmission line from Osceola, Arkansas to a connecting point near Jonesboro, Arkansas, in order to fulfill the City’s contract with Southwestern Power Administration to procure electrical power for the city and its inhabitants.”

There are several reasons for my conclusions, but I will discuss only a few of them.

I.

.Regardless of other provisions of the law, I am thoroughly convinced that Ark. Stat. Ann. § 35-401 (Bepl. 1962) gives the City the power of eminent domain here sought. This section is Section 1 of Act No. 126 of 1895, as amended by Act No. 130 of 1907. Act No. 126 of 1895 was captioned, “An Act Authorizing Municipal Corporations And Other Corporations To Exercise Certain Privileges, And For Other Purposes.” The Act consisted of a total of nine sections. The only section that has been amended is Section 1 of the Act, which, as amended, is now Ark. Stat. Ann. § 35-401. Sections 2 to 8 of the Act 126 of 1895 have remained unamended and are now found in Ark. Stat. Ann. §§ 35-402 to 35-408, inclusive.

It must be admitted that the Act No. 126 of 1895, as originally passed, was to give municipal corporations and other corporations engaged in supplying water, the power of eminent domain; and it was certainly intended by the Act No. 126 that this right of eminent domain would extend beyond the city limits of a municipality, because Section 6 of the Act, which is now Ark. Stat. Ann. § 35-406, states that if the property sought to be condemned is located in more than one county, then the jurisdiction for the condemnation proceeding will be in the county in which a part of the property may be located. Certainly, when the statute talked about condemnation proceeings in more than one county, it authorized condemnation proceedings for lands outside the city limits of the municipality. So if the City of Osceola had desired to condemn a right of way for water purposes under the Act No. 126 of 1895, it could certainly have exercised the power of eminent domain as to lands beyond its city limits.

Section 1 of Act No. 126 of 1895 was amended by Act No. 130 of 1907, and the caption of the Act 130 was: “An Act To Amend Section 2926 of Kirby’s Digest.” The Majority Opinion gives the original Section 1 of Act No. 126 and shows in brackets the amendatory language added by the Act No. 130 of 1907. I follow the same procedure, emphasizing the bracketed language:

“All municipal corporations in this State, and all corporations organized for the purpose of supplying any town, city or village in this State, or the inhabitants thereof with water, [or with electrical power generated by water, for supplying such city, town or village, with such electricity as may be required for lighting same, operating machinery or running street cars, or other cars on tracks for public purposes only,] are hereby authorized to exercise the power of eminent domain, to condemn, take and use private property for the use of such corporations when necessary or convenient to carry out the purposes and objects of said corporations.”

Now, let us consider what was the effect of the amendment of 1907. It was certainly to include the right of eminent domain for acquiring right of ways for electrical power generated by water. Was this right of eminent domain for electrical purposes limited to public service corporations, as distinct from municipalities? That seems to be the view of the Majority, because the opinion recites: ‘ ‘ The bracketed language that was added in 1907 was inserted in such a way as to be applicable only to the private corporations, not to the municipalities.”

I disagree with the quoted sentence. The original Act No. 126 of 1895 said: “All municipal corporations in this State, and all corporations organized for the purpose of supplying any town . . . with water . . . are hereby authorized . . .” The amendatory section, as found in Act No. 130 of 1907, says, “All municipal corporations in this State, and all corporations organized for the purpose of supplying any town, city or village in this State, or the inhabitants thereof, with water or with electrical power generated by water . . . are authorized ...” Notice the plural — “are authorized” — such clearly refers to “municipal corporations” as well as “other corporations.”

If the amendatory sentence referred only to public service corporations, as distinct from municipal corporations, then the original Act No. 126 of 1895 applied only to public service corporations, as distinct from municipal corporations. If that be true, then why were the words, “All municipal corporations,” ever included in either of the Acts ? Unless the words, ‘ ‘ or with electrical power generated by water,” apply to municipalities, then neither does the water provision apply to municipal corporations; and so the Act, insofar as regards municipal corporations, would read, “All municipal corporations . . . are hereby authorized to exercise the power of eminent domain . . . .”

I cannot see the force of the Majority’s reasoning as regards Ark. Stat. Ann. § 35-401. To me, such section clearly means that when a municipal corporation is seeking to get electrical power generated by water, then it has the right of eminent domain; and, as previously mentioned, Ark. Stat. Ann. § 35-406 says the eminent domain proceedings may be in any county in which the land is sought to be condemned; and that clearly means outside the city limits of the municipality.

That the City of Osceola in this case is seeking to get “electrical power generated by water” cannot be successfully denied. We take judicial notice of the federal statutes, and so we know that the Southwestern Power Administration is a part of the Federal Power Administration. U.S.C.A. Title 16, § 825 S concerns sale of “electric power and energy generated at reservoir projects”; and the next section of the U. S. Code {% 825 S. 1) concerns the sale of power by the Southwestern Power Administration; so we know that the Southwestern Power Administration has “electric power generated by water.”

II.

In the two concluding paragraphs of the Majority-Opinion there is contained the discussion that there is no evidence in this case that the obtaining of this power is “an essential and indispensable accessory to the city’s express power to operate a municipally owned light plant. ’ ’ It was suggested in the oral argument that this point had not been developed because the single question was whether the City of Osceola has the power to exercise condemnation outside of its city limits. The Majority Opinion impliedly concedes that if the City had introduced evidence to show that the obtaining of this power was essential to the city’s operation of the municipal plant, then such power of eminent domain would have existed. When the Majority Opinion makes this concession, it leads me to the conclusion that the Majority means that, under some circumstances, the. City of Osceola would have the power of eminent domain outside of its city limits. And if the sole question in -this case was (as stipulated) the power of Osceola to condemn, then this case should be further developed to see if the electrical power is essential in this case, because if it is essential, then Osceola has the power of eminent domain here sought.

However, I think there is already evidence in this record that electrical energy is essential to the City. By the provisions of Stipulations 1 to 4, previously copied herein, it was agreed that. Osceola has had a municipal electrical power .system for many years, but it has now, by ordinance, authorized the issuance of $1,600,000.00 worth of bonds in order to obtain the electrical power here sought. Surely when the City Council adopted an ordinance that it would expend $1,600,000.00 to get this power from the Southwestern Power Administration, it is rather strong evidence that the City needed the power. I cannot imagine that the City of Osceola would be spending any such sum unless it was necessary; so I think the stipulated facts constitute the evidence that this electrical power is essential and indispensable to the operation of the municipal plant.

CONCLUSION

On the law, I maintain that Ark. Stat. Ann. § 35-401 gives Osceola the power of eminent domain here sought. On the facts, I maintain that the stipulation shows that this electrical power from the Southwestern Power Administration is essential and indispensable to the operation of the municipal plant. On either basis, I would reverse the Chancery Court.

There is one consoling thought for Osceola, and it is this: the Arkansas Legislature will be in session in a very short time, and may — and I predict will — give municipalities the same powei of eminent domain that public service corporations already have.

       Ark. Stat. Ann. § 73-264 (Eepl. 1962) allows municipalities, with the approval of the Public Service Commission, to extend service to the rural territories contiguous to the municipality.

      On Page 267 of the United States Government Organization Manual of 1966-1967 there is this statement about the Southwestern Power Administration:
      “CREATION AND AUTHORITY. — The Southwestern Power Administration was created by the Secretary of the Interior in 1943, to carry out the Secretary’s responsibility for the sale and disposition of electric energy generated at certain projects constructed and operated by the Federal •' Government. The Administration carries out, with respect to specific projects, functions assigned to the Secretary by the Flood Control Act of 1944 (58 Stat. 890; 16 U.S.C. 825s).
      “OBJECTIVES. — The Southwestern Power Administration transmits and disposes of the surplus electric power and energy generated at the Federal reservoir projects in such manner as to encourage their most widespread • use. To accomplish this, the Administration sets the lowest possible rates to consumers, consistent with sound business principles, and gives preference in the sale of such power and energy to public'bodies and cooperatives. -
      “ACTIVITIES. — The Administration is designated as the agency to market available surplus electric power and energy generated at the following multiple purpose reservoir projects of the Department of. the Army: Beaver, Blakely Mountain, Broken Bow, Bull Shoals, Dardanelle, DeGray, Denison, Eufaula, Fort Gibson, Greers Ferry, Kaysinger Bluff, Keystone, Robert S. Kerr, Narrows, Norfork, Sam Rayburn, Stockton, Table Rock, Tenkiller Ferry, Ozark Lock and Damj and Whitney.”
      A case discussing Southwestern Power Administration is: Kansas City Power & Light Co. v. Douglas McKay, Secretary of Interior, 225 F. 2d 924.


author: Paul Ward, Justice.

text:
    W. G. Shook et al v. Mrs. Jack Kellar et al
    5-4059
    408 S. W. 2d 880
    Opinion delivered December 12, 1966

      Gordon & Gordon, for appellant.

      Felver A. Rowell Jr., for appellee.
   Paul Ward, Justice.

On May 17, 1965 Mrs. Jack Kellar and ber fifteen year old daughter, Rita (appellees) were injured when the car in which they were riding was struck by a truck operated by William Shook and W. G. Shook (appellants). The collision resulted in severe damages to appellees.

A suit resulted in the following judgments against appellants: for injuries to Mrs. Kellar $5,200; for injuries to Rita Kellar $25,000, and; for medical expenses $1,300.

For a reversal appellants urge only one point:

“The verdicts in the amounts of $5,200 for Mrs. Kellar and $25,000 for Rita Kellar are excessive.”

First, it is noted that there is no objection to the judgment for $1,300 for medical expenses for Rita and there is no question about negligence on the part of appellants. The only issue is whether the record discloses substantial evidence to support the jury’s verdict for $5,200 and the verdict for $25,000.

Mrs, Kellar’s testimony, in substance. As a result of the accident she was knocked unconscious for a short time; she was in the hospital from Tuesday (the day she was injured) until Friday morning; she received a size-able cut on her right elbow; she says she had and still has pains in her back and neck; sometimes her head suddenly “jerks”, and on one occasion it happened in church causing her to almost faint; she has headaches and dizzy spells at times; she is a schoolteacher, and had to miss nearly two weeks; she doesn’t feel able to teach but can’t afford to stop — when she arrives at home each day she has to go to bed; she needs to attend summer school but is unable to do so. Much of the above testimony was corroborated by her husband.

Dr. Dunaway, who treated Mrs. Kellar, testified in substance: he took seven stitches in treating the gash on her right elbow. After she left the hospital he saw her again in about two weeks; she was complaining about pains in her back and neck, and he gave her medicine to ease the pain and to help her sleep. He saw her about a week before the trial and she was still complaining of pains in her neck and back, and she appeared to be real uncomfortable because of pains in the region of the tail bone, and; she will continue to suffer.

"We feel it would serve no useful purpose to refer to numerous decisions of this Court wherein we have both affirmed and reduced jury verdicts in cases similar to this one. Such comparisons usually are not helpful. In the case of Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553, we expressed this view in the following language:

“A comparison of awards made in other cases is a most unsatisfactory method- of determining a proper ’award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value.”

In cases of this nature we cannot formulate a better rule than the one set forth in Missouri Pacific Transportation Company v. Simon, 199 Ark. 289 (p. 300), 135 S. W. 2d 336, and repeated in Arkansas Amusement Corporation v. Ward, 204 Ark. 130 (p. 141), 161 S. W. 2d 178. It reads:

“A verdict will be set aside by an appellate court as excessive where there is no evidence on which the amount allowed could properly have been awarded; where the verdict must of necessity be for a smaller sum than that awarded; where the testimony most favorable to the successful party will not sustain the inference of fact on which the damages are estimated; where the amount awarded is so excessive as to lead to the conclusion that the verdict was the result of passion, prejudice ... or of some error or mistake of principle, or to warrant conclusion that the jury were not governed by the evidence.”

Measured by the above rule, we cannot say the. verdict of $5,200 is excessive.

Rita Kellar testified, in substance: she was fifteen years old at the time of the accident; she was knocked unconscious and didn’t revive until she was being taken to the hospital where she remained three days; she was cut by glass from the broken windshield of the car in which she was riding; she received a long gash on the back of her head, also numerous cuts on her arm and face; she had plastic surgery, is .very nervous, and often has headaches. She was treated by Dr. Dunaway and Dr. Stuckey. She was corroborated by her mother who testified her daughter was very conscious of the sears on her arm and face, and will not wear sleeveless dresses.

Dr. Stuckey treated the scars on Rita’s face and arms with plastic surgery. He testified, in substance: There were three lacerations on her face and many lacerations (about 15) on her arm; the scars on her face were on the cheek and near one eye; there will always be visible scars on her face, and they will need revision later; the scars on the face run vertically which means they are harder to erase or conceal. There were" so many scars on the arm he did not attempt to count them; Rita is very self-conscious of the scars, she is nervous, has headaches, and is on edge all the time; she has been taking a bottle of aspirins a day for sometime.

Again applying the rule previously set forth above we are unwilling to say the verdict of $25,000 is not supported by substantial evidence.

The decisions we have reached above are, of course, accompanied by some degree of doubt and uncertainty. We cannot know for a certainty that the pains, nervousness and embarrassment revealed by the testimony are real or fanciful, or whether they will shortly diminish or continue to increase as the years go by, but we do know the jurors were in a better position than we are to judge these matters.

Therefore, since the record contains substantial evidence to sustain the verdicts we are unwilling to say they are excessive.


author: Osro Cobb, Justice.

text:
    Worth Ins. Co. v. Mrs. Tommy Patching and Helena National Bank
    5-4003
    410 S. W. 2d 125
    Opinion delivered December 12, 1966
    [Rehearing denied January 30, 1967.]

      N. M. Norton, for appellant.

      David Solomon, for' appellee.
   Osro Cobb, Justice.

On September 2, 1964 appellant ■wrote and delivered its policy of insurance, including coverage of claims for collision damages, upon an automobile owned by appellee Mrs. Tommy Patching, and financed by appellee Helena State National Bank. On November 12, 1964 appellant elected to cancel the policy. Appellant allowed a credit for the unearned premium in its settlement of accounts for November with its general agent, Kidder Insurance Company, Inc. of Port Smith. Instead of remitting the premium refund to appellees, Kidder Insurance Company, Inc. remitted to an insurance agent, John Coates, who did not pay over the cancellation premium refund to appellees until August, 1965. In the meantime, on June 19, 1965, the insured car was involved in a collision, being damaged in the amount of $1,325.00, for which claim was asserted and suit subsequently filed.

Appellant answered claiming delivery of the policy to John Coates in the capacity as agent for appéllees; that the policy had been cancelled and was not in effect, and that notice of loss was not given pursuant to the terms of the policy.

Appellant moved for leave to file a cross-complaint against its general agent Kidder Insurance Company, Inc. praying judgment against the cross-defendant for any amount for which appellant he found liable to appellees. Appellees resisted the motion to bring in additional parties. We quote from appellees’ responsive pleading:

“That the subject matter of this action is in contract and the statutes of the State of Arkansas do not permit Third Party pleadings such as are being sought in this case. Petitioners state that their allegations are that they entered into a contract with the Defendant and are not a part of any contract or action between the Defendant and any of its agents or contractees.”
“WHEREFORE, Plaintiffs pray that the motion for permission to file a cross complaint in this cause be denied, and for such further relief as they might he entitled in the premises.”

Following hearing the Court denied appellant’s motion for leave to file the cross-complaint. It is from this action that the appeal has been prosecuted.

Neither party has raised the question as to whether the order of the trial court is appealable. This question is jurisdictional and we reach it on our own motion in disposing of this case.

Under the statute we are limited to reviewing final judgment and decrees. Ark. Stat. Ann. § 27-2101 (Repl. 1962).

In Piercy v. Baldwin, 205 Ark. 413, 168 S. W. 2d 1110 (1943), we said:

“* * * The order from which this appeal comes is in no sense a final order, from which an appeal may be prosecuted. In effect, the order continues the cause during the military service of appellee, Luther Baldwin, and for three months thereafter. The cause has not been tried on its merits, but is still pending. In Harlow v. Mason, 117 Ark. 360, 174 S. W. 1163, this court quoting from an earlier case, said: ‘A judgment to be final must dismiss the parties from the court, discharge them from the action or conclude their rights to the subject-matter in controversy. Bank of the State v. Bates, 10 Ark. 631; Campbell v. Sneed, 5 Ark. 399’ ”.

In McPherson v. Consolidated Casualty Company, 105 Ark. 324, 151 S. W. 283 (1912), we said:

“Cases can not be tried by piecemeal, and one can not delay the final adjudication of a cause by appealing from the separate orders of the court as the cause progresses. When a final order or judgment has been entered in the court below determining the relative rights and liabilities of the respective parties, an appeal may be taken, but not before * *

For analogous reasoning, see Searcy v. Cooper, 239 Ark. 280, 388 S. W. 2d 918 (1965); Arkansas State Highway Commission v. W. C. Kesner, et ux, 239 Ark. 270, 388 S. W. 2d 905 (1965).

We have concluded that the order of the trial court, here on review, is not appealable.

The appeal is dismissed.


text:
    Helen Loretta McIntyre v. Leon Bennett McIntyre
    5-4051
    410 S. W. 2d 117
    Opinion delivered December 12, 1966
    [Per Curiam order denying rehearing January 23, 1967, p. 835.]

      Neva B. Talley, for appellant.

      Fulh, Wood, Lovett, Parham & Mayes, for appellee.
   Osro Cobb, Justice.

On April 24, 1962, appellant was granted a decree of absolute divorce from appellee. Appellant was awarded custody of the children and was given an allowance of $20.00 per week for their support. Appellant waived any claim to alimony. The decree of divorce incorporated therein the terms of an oral property settlement agreement of the parties.

On November 5, 1965, appellee filed a petition for an order directing appellant to convey to appellee all of her interest in certain real estate held by the parties by the entirety at the time of the decree of divorce.

On November 12, 1965, appellant filed a detailed response to appellee’s petition, claiming an undivided one-half interest in the real estate and agreeing to the sale of same provided she he allowed to receive one-half of the proceeds from such sale.

Both parties testified at the hearing, which was held on January 12, 1966. On March 23, 1966, approximately four years after the original decree of divorce, the Chancellor entered a supplemental decree ordering and directing appellant to execute and deliver to appellee a quitclaim deed as to her interest in the real estate held hy the entirety, and appellant was directed to comply with the order within thirty days of the entry of the decree. From this decree comes this appeal.

We quote the pertinent provisions of the original decree containing a property settlement agreement between the parties:

“That the defendant owns the following property: one 1960 Ford Falcon automobile; various household furniture and appliance; thirty-nine (39) shares of American Telephone and Telegraph stock and realty described as a forty acre farm and dwelling home, said legal description being: NE% NWA4 Sec. 23 Twp. 3 N., Range 16 W, Pulaski County, Arkansas.
“That the parties hereto have agreed to the following property settlement: That the plaintiff is to receive the 1962 Ford Falcon automobile on which there remains an unpaid mortgage. The plaintiff (appellant) is to make payments on the car note for the months of April, May and June, 1962, and thereafter the defendant is to make the monthly payments until said car note shall have been paid in full. The defendant (appellee) is to receive the 1960 Ford Falcon automobile. The plaintiff is to receive the thirty-nine shares of American Telephone and Telegraph stock on which there is a remaining balance owed and the defendant has agreed to pay this balance by July, 1962. The plaintiff is to receive all furniture and appliances and that the plaintiff shall remain in possession of the realty described in enumerated paragraph VI above until the balance due on the American Telephone and Telegraph shares of stock has been paid in full, or until the realty is sold, whichever occurs first. * * *” (Emphasis ours)

We now quote the pertinent provisions of the supplemental decree:

“1. A decree was entered on April 24, 1962, under which a divorce was granted to the plaintiff, and in which the court found that parties hereto had entered into a property settlement agreement. ‘Said decree recites that defendant owned certain personal property together with a 40-acre farm and dwelling house described as: The NE14 NW!4 Sec 23, T3N R16W, Pulaski County, Arkansas. By the terms of said decree the court retained jurisdiction for the purpose of enforcing the equitable rights of the parties hereto.
“2. ‘The court finds said decree erroneously recited the sole ownership of said real estate as being in the defendant, when in fact the title thereto had been vested in said husband and wife jointly as an estate by the entirety. (Emphasis ours)
“3. ‘ The court further finds that under said property settlement agreement the defendant, in consideration of the transfer of certain personal property to the plaintiff, was to become the sole owner of said real estate free and clear of any and all claims thereto on the part of the plaintiff, and that plaintiff undertook to and obligated herself by the terms of said agreement to convey to the defendant by appropriate means all of her right, title and interest in and to said real estate.
“4. ‘The court finds that the defendant fully discharged his obligations to the plaintiff under said property settlement agreement by delivering to her all the property described therein which was to be received by her in accordance with the agreement.
“5. ‘The court finds that the plaintiff has failed to convey her interest in said real estate to the defendant in accordance with the property settlement agreement, but is in .fact now asserting in this action that she is still an owner with respect -to said property by virtue of the deed which originally created the estate by entirety.
“ ‘It is therefore by the court considered, ordered, adjudged and decreed that Helen Loretta McIntyre execute and deliver to Leon Bennett McIntyre a quitclaim deed conveying to the said Leon Bennett McIntyre the NE% NW% Sec. 23, T3N, R16W, Pulaski County, Arkansas, and that she perform said act within 30 days from the date of this decree’ ”.

The language of the original decree provided no dispositive action as to the real estate here at issue. It did place appellant in possession of the real estate pending sale. The supplemental decree substantially added to and reformed the original decree in that it ordered appellant to quitclaim all of her interest to appellee in the realty which was held by the entirety.

We have examined the evidence in this case to determine whether the Chancellor was in fact authorized, under such evidence and our general rules applicable to reformation of contractual agreements, to enter the supplemental decree stripping appellant of her interest in the real estate.

We have consistently held that reformation of a contractual agreement will not - be granted except upon clear, unequivocal and decisive evidence. Realty Invest ment Company v. Higgins, 192 Ark. 423, 91 S. W. 2d 1030 (1936). In Corey v. The Mercantile Insurance Company of America, 205 Ark. 546, 169 S. W. 2d 655 (1943), we quoted the applicable rule with approval, as follows:

‘ ‘ To entitle a party to reform a written instrument upon the grounds of mistake, it is essential that the mistake be mutual and common to both parties; in other words, it must be found from the testimony that the instrument as written does not express the contract of either of the parties. It is also necessary to prove such mutual mistake by testimony which is clear and decisive before a court of equity will add to or change by reformation the solemn terms of a written instrument.”

Appellant brought the original suit and the court decreed that she had just cause for a dissolution of the bonds of matrimony, and that appellee was guilty of such indignities as to render her condition in life intolerable. Appellant was given custody of the children and an allowance of $20.00 per week for child support. It is significant, in reviewing the property settlement, that appellant waived any claim to alimony.

We are thus presented with a situation where this appellant, the injured party below, and who had waived any claim to alimony, was given possession of the home place, the real estate, in the original decree and, some four years later, she is ordered by a supplemental decree to execute and deliver to appellee her quitclaim deed to her interest in th real estate held by the parties by the entirety. In Carr v. Carr, 226 Ark. 355, 289 S. W. 2d 899 (1956), we said:

“The couple’s home was owned as a tenancy by the entirety and was correctly ordered sold, the proceeds to be divided equally.”

The Carr case, supra, is bottomed upon a specific statute. Ark. Stat. Ann. § 34-1215 (Repl. 1962).

The real estate held by the entirety represented approximately three-fourths of the total value of the community estate of the parties at the time of divorce. Appellant, who had waived her claims to alimony, adamantly insisted in her testimony that she had never agreed to also renounce her established interest in the real estate. We view her testimony as both clear and reasonable. After examining all of the testimony upon de novo review, we have concluded that the evidence is neither clear nor convincing as to any intent of the parties litigant to agree to such an obviously inequitable result as that requiring appellant to surrender to appellee all of her rights in the real property held by the entirety.

We have further concluded that equity requires that appellant’s claim to her interest by the entirety in the real estate be confirmed and that upon sale of the property, appellant shall receive one-half of the net proceeds of such sale. Furthermore, as provided in the original decree, appellant’s possession of the property may not be disturbed prior to sale.

The supplemental decree of March 23, 1966 is reversed and vacated as to all matters, except the finding that the realty was held by the parties by the entirety, and it is ordered that a corrective decree be entered not inconsistent with this opinion. It is so ordered.

Reversed and remanded with directions.

[Per Curiam order denying- petition for rehearing delivered January 23, 1967, p. 835.]