author: Paul Ward, Associate Justice.

text:
    Ark. State Highway Comm. v. Triplett
    5-3549
    389 S. W. 2d 439
    Opinion Delivered April 26, 1965.

      Mark E. Woolsey, Don Langston, Lindsey J. Fairley, for appellant.

      Streett & Punkett, for appellee.
   Paul Ward, Associate Justice.

The Arkansas State Highway Commission (hereafter referred to as appellant) brought an action in chancery court against E. E. Triplett and wife d/b/a Dixie Hotel Courts (hereafter referred to as appellees) to require appellees to remove certain signs allegedly located on the right-of-way of U.S. Highway No. 79.

Appellees answered, alleging: (a) they were the owners of the land in dispute, and (b), by way of cross-complaint, that appellant was attempting to take a twenty-foot-wide strip of their land worth $20,000, the prayer being that appellant’s complaint be dismissed or that they be paid $20,000.

On May 11, 1964 the trial court, after a full hearing, entered the substance, the findings of facts, and the decree set out below:

‘ ‘ The property in question lies to the south and east of U.S. Highway No. 79; on July 11,1928 the county court entered an order condemning the 160-foot-wide right-of-way in question (80 feet on each side of a center-line) beginning at a “station number and projecting a line by referring to tangents, bearings, degrees and minutes, as well as to footage”. It was conceded the County Court Order was not published and that no notice was given to the affected land owners.

Prior to 1933 there was a fence some 15 to 18 feet west of the tourist cabins which faced away from the Highway.

The court finds that the 80-foot right-of-way line will run through eight of the nine cabins located on defendants’ (appellees’) property.

Appellees are the owners of the land in controversy which is valued at $4,225, and it will cost appellees approximately $10,234 to rebuild the cabins.

The court then decreed that upon payment by appellant to appellees the sum of $14,750, title to the land in controversy would vest in appellant.

There is no controversy over the above findings of facts except as hereafter indicated.

On appeal only two points are urged for a reversal: One, the trial court erred in finding appellant did not own the strip of land in controversy; Two, In any event the amount of damages is excessive.

One. It is our conclusion that the trial court must be reversed on this point. We do not think the weight of the evidence sustains certain findings of facts as will be pointed out.

Although the trial court’s opinion does not specifically say so, its conclusion appears to be founded on the fact that Highway No. 79 (as constructed under the 1928 County Court Order) was not a new construction, but that it was a reconstruction of an already existing old road. If the construction here did amount to repairing an old road, then this case might possibly (depending on other pertinent facts) be controlled by the case of Ark. State Highway Commission v. Dobbs, 232 Ark. 541, 340 S.W. 2d 283 which might call for an affirmance.

From our understanding of the record, this was a new construction.

Mrs. Audrey'Stough (former wife of Barney Joyce) testified that she and her former husband were the owners of the land in controversy in 1928 when the said County Court Order was entered; that they were not paid any damages for the land taken by either the county or the state; that the land now owned by appellees was conveyed by her and her husband (Barney) to Ed and Ola Cobb on March 7, 1929; the road which was constructed was the same as now located; and, “that the stretch of road now involved in this litigation was new and that it replaced a former stretch of the Camden and Eagle Mill road, which also crossed the Joyce property at a point west of the new or present road”. This testimony was affirmed by E. W. Rogers (Engineering Technician for appellant).

“Q. Was this a new stretch, Mr. Rogers, or do the records reflect this ?
“A. Yes, the records reflect that this is a new highway, a new location. ’ ’

The testimony of Mrs. Audrey Stough and others shows that appellant entered on the new location, cleared the right-of-way, set stakes, dug ditches, and placed culverts while the Joyces were living'on the land. At any rate it is not disputed that appellant began blacktopping the road in 1931, at which time the property belonged to Ed and Ola Cobb.

It is immaterial, under the above established facts, whether the Joyces had notice of entry while they were owners (and failed to file a claim within one year) or if the Cobbs first received notice of entry in 1931. It follows that if the Cobbs filed a claim (within one year) or if they failed to do so, appellees are barred from filing a claim at this late date. This question was clearly settled in Ark. State Highway Comm. v. Cook, 233 Ark. 534, 345 S.W. 2d 632.

We see no merit in appellees ’ contention that our holding in the Cook case just mentioned has been changed by Act 185 of 1963. The pertinent part of 'Section 2 of said Act reads as follows:

“Definition of Entry and Notice: (a) Any construction work performed on a road, street, or highway where the right-of-way thereof condemned by the County Court is on a new location was entry and was notice of the existence of such Condemnation Order, from the date of performance of the work, to the person owning (prior to the Court Order) the property entered upon.”

Appellees say the words in parentheses refer only to a person who owned the land before entry of the County Court Order hut who had' disposed of the land at the time the order was made. Such interpretation, we think, is unreasonable and makes the statute meaningless.

Two. In view of the conclusion above reached it is unnecessary to consider the question of damages to appellees, but we feel the cause should be remanded for the purpose hereafter mentioned.

The trial court found that if appellant did own and claim all its right-of-way, it would be necessary to move or reconstruct eight of appellees’ cabins. However, during the trial, it was stipulated between counsel on both sides that appellant had no intention of disturbing any of the cabins even though they (or some of them) were over the right-of-way line. Under our holding in Arkansas State Highway Commission v. McNeil, 222 Ark. 643, 644, 262 S.W. 2d 129, appellant is bound by the actions of its attorneys. See also Arkansas State Highway Commission v. Partain, 193 Ark. 803, 103 S.W. 2d 53.

Therefore, upon request by either side, the court should order a new right-of-way line established and made a matter of record for the protection of interested parties in the future.

After carefully reviewing the record, we find no merit in appellees’ contention that (a) appellant did not sufficiently comply with Eule 9 of this Court in abstracting the record, and (b) did not lodge its appeal in this Court in due time. As was said in Allen v. Overturf, 236 Ark. 387, 366 S.W. 2d 189 it is the duty of appellant ‘ ‘ to furnish this Court with such an abridgment of the record that will enable us to understand the matters presented”. Although the record is not unusually large, the appellant’s abstract totals twenty-nine pages, covering the necessary pleadings and the testimony of numerous witnesses. We cannot say Eule 9 was violated, (b) The decree in this case was entered May. 11,1964, notice of appeal was filed June 5,1964, and on July 28,1964 the court gave appellant seven months from May 11,1964 (or until Dec. 11,1964) to “file the reporter’s transcript of the testimony, stenographically reported and designated to be contained in the record on appeal”. The transcript was filed in the clerk’s office of this Court on Dec. 11, 1964. This, we think, was a sufficiient compliance with the statute.

The decree of the trial court is reversed, and the cause is remanded for further proceedings in accordance with this opinion.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice. Ed. F. McFaddin, Associate Justice

license: Public Domain

text:
    Ark. State Highway Comm. v. Suddreth
    5-3535
    389 S. W. 2d 423
    Opinion Delivered April 26, 1965.

      Mark E. Woolsey, Don Langston, Don' Oillaspie, for appellant.

      Franklin Wilder, Thomas Harper, for appellee.
   Sam Robinson, Associate Justice.

This is an eminent domain proceeding whereby the Arkansas State Highway Commission condemned for highway purposes 38/100 of an acre in Ft. Smith owned by appellees, J. Gr. Suddreth and his wife, Marceline. The condemned property is a part of a tract upon which appellees’ home is located. The Highway Commission contends that appellees were damaged in the sum of $2,200 by reason of the taking. Appellees maintain that they suffered damages to the extent of $14,000. There was a jury verdict for the appellees in the sum of $8,845. The Highway Commission has appealed.

On appeal appellant argues two points. First it is contended that the court commented on the evidence and thereby erred. Second, that the court erred by remarks made in the presence of the jury prejudicial to appellant.

Appellees introduced as an expert witness on value, Mr. Jimmie Taylor, a real estate áppraiser. He testified that the difference in value of the Suddreth property before and after the taking was $9,650. On cross-examination, the attorney for the Highway Commission attempted to show that the witness had taken into consideration certain things which are not regarded by law as recoverable damages. Mr. Taylor’s testimony was extremely lengthy for this kind of case. The answers to questions were long and involved. The answer to one question alone takes up seven pages of the record. Several answers he gave required more than a page to transcribe. It is not at all clear that he did not take into consideration claimed damages that are not recoverable at law. Counsel for the Highway Commission moved to strike that portion of his testimony regarding severance damages because in arriving at such damages the witness took into consideration loss of view, loss of privacy, change in neighborhood, and the closing of Duncan Road. The court said: “I understood this gentleman’s testimony to be that he did not consider these items, although Mr. Langston (attorney for the Highway Commission) was very diligent in seeking to get him to admit that he had, at least by inference.”

It was within the province of the jury to construe the witness’ testimony. The court’s remark amounted to an expression of the court concerning a construction of the witness ’ testimony. This was a comment on the evidence, which is prohibited by Article 7, Sec. 23, of the Constitution of Arkansas. When counsel for appellant objected to the comment made by the court, the court inquired of counsel as to what manner the court had commented on the evidence; counsel then offered to approach the bench. No doubt it was the opinion of counsel that the objection in full should not be stated within the hearing of the jury. Finally, after considerable colloquy between the court and counsel for both sides, the court put an end to the objection by stating: ‘ ‘ He means — all right, all right, we ’ll let it go at that.”

Article 7, Section 23 of the Constitution provides: “Judges shall not charge juries with regard to matters of fact, but shall declare the law, and in jury trials shall reduce their charge or' instructions to writing on the request of either party.” Many times this court has held that this provision of the Constitution prohibits the court from commenting on the evidence. The court said in Cameron v. State, 214 Ark. 512, 216 S. W. 2d 881: “Under our Constitution (Art. 7, § 23) judges are forbidden to charge juries as to the facts; and we have held that for a trial judge to communicate to the jury in any way his opinion, as to the merits of the contention of either party on a fact question, is error.”

In Harbor v. Campbell, 235 Ark. 492, 360 S. W. 2d 758, the court quoted from Fuller v. State, 217 Ark. 679, 232 S. W. 2d 988, as follows: ‘ ‘ The requirement of Art. 7, § 23, of our constitution, that ‘judges shall not charge juries with regard to matters of fact. ’ applies as well to the credibility of witnesses and the weight to be given their testimony as to the outright truth or falsity of what they say. St. L.S.W. Ry. Co. v. Britton, 107 Ark. 158, 154 S. W. 215. And it applies not only to what judges tell juries in the course of formal instructions but also to what they say in colloquys with lawyers in the jury’s hearing. ” In Hinson v. State, 133 Ark. 149, 201 S. W. 811, the court held it was error for the trial judge to give the jury his opinion upon any question of fact, although he admonished the jury to disregard his opinion.

We do not reach the second point, that is, whether other remarks made by the trial court were prejudicial to appellant. In a new trial the remarks complained of are not likely to be repeated.

Reversed and remanded for new trial.

Ed. F. McFaddin, Associate Justice

(dissenting). In reversing the judgment in this case the Majority is holding that the Trial Judge commented on the evidence and thereby committed fatal error. There is no need to prolong this dissent by discussing the entire record. I have carefully read the record, and I do not attach such a meaning to the remarks made by the Trial Judge. I am familiar with the Constitutional provision that Judges are not to express opinions to the jury concerning the facts; and I am sure that the Trial Judge was also familiar with the Constitution. It is one thing to explain a ruling, and quite another thing to comment on the weight of the evidence. I consider the remarks that the Conrt made as being explanatory and, therefore, I would affirm the judgment.


author: Jim Johnson, Associate Justice.

text:
    Johnson v. Sanford
    5-3531
    389 S. W. 2d 421
    Opinion Delivered April 26, 1965.

      David Solomon, for appellant.

      A. M. Coates, for appellee.
   Jim Johnson, Associate Justice.

This suit involves a contested petition for determination of heirship of an intestate’s estate.

Appellant Josie Johnson filed a petition for appointment as administratrix of the estate of Will Erwin, deceased, in Phillips Probate Court on April 25,1963, alleging that she was the daughter and sole heir of the decendent. The petition was granted on April 27, 1963, and appellant thereafter filed an inventory of the estate reflecting total assets of $6,300 in real estate and $370 in personalty. On September 28, 1963, appellee and cross-appellant Zennie Sanford filed a petition for determination of heirship, alleging that she was decendent’s only surviving child and prayed that the court, after hearing, direct the administratrix to distribute the estate to appellee. Hearing on the petition was ordered for November 25,1963, with publication of notice of the hearing ordered and done. At appellee’s behest, the court on February 18, 1964, reopened the cause and permitted the parties to introduce further testimony. In its order of September 4, 1964, the court found that appellee is not a child of or related by blood to the decendent, that appellant, although a child of decendent, is not proved to be born of a lawful marriage, that therefore neither party is entitled to inherit from the decendent, and that additional testimony should be presented to determine the decendent’s heirs and next of lrin. From this order both parties have appealed.

For reversal appellant contends that the court, having found appellant was decendent’s child, erred in not finding appellant to be his lawful child and entitled to inherit from decedent. Appellee, on the other hand, urges that the court erred in finding that appellee was not a child of decedent.

This is not an “either-or” proposition. The parties’ claims are not mutually exclusive. If both parties can prove their claims, both can prevail and both will share the estate, or either of them or neither, as the trial court found. Therefore we will consider the claims separately.

I. Claim of appellant Josie Johnson. Appellant and a large number of other witnesses testified that decedent had referred to her as his daughter on various occasions. Appellant testified that she was born in 1903, that her mother was Fannie Williams and her father Will Erwin, the decedent. Appellant also testified that she had never lived with Will or, for that matter, with her mother. She was raised by her aunts because “her mother was never around”. Appellant went by the name Erwin until she married but testified that she had no knowledge concerning marriage of her parents. It was undisputed that her mother, Fannie Williams, never went by the name Erwin and no witness testified that Will Erwin had made any statement that the mother of appellant was his wife or that he had ever cohabited with her as such. There were no marriage or divorce records relative to Fannie Williams introduced.

“ It is fundamental that one who claims to be the heir of a decedent must, as a prerequisite to the right to participate in the estate, establish the relationship relied upon. Holt v. Brackville, 158 Ark. 642, 250 S. W. 33. A presumption of marriage, however, may stem from cohabitation, accompanied by declarations of the parties and behavior consistent with the status alleged. Martin v. Martin, 212 Ark. 204, 205 S. W. 2d 189. ’’ Lockett v. Adams, 212 Ark. 899, 208 S. W. 2d 428.

In the case at bar there is a complete absence of evidence showing a “cohabitation apparently matrimonial” between Will Erwin and appellant’s mother, Fannie Williams. The state of the record being this, the probate court found that appellant is not proved to be born of a lawful marriage between decedent and her mother. We cannot say on trial de novo that such finding is against the weight of the evidence.

II. Claim of appellee Zennie Sanford. Appellee was born in 1894, the daughter of Mattie Mackey. Lucy, her sister, was born a year or two later. Will Erwin married Mattie Mackey in 1905 and Zennie lived with them until she married in 1906. (On her marriage certificate, appellee’s maiden name is shown as Zennie Mackey, not Erwin.) After her marriage, appellee and her husband lived close by decedent and her mother, and after her mother’s death appellee lived with and kept house for and took care of decedent. It was shown that decedent gave appellee and her daughter some farm land and gave Lucy a house and three acres, retaining forty acres which is the principal asset of his estate. Appellee testified that decedent told her he was her father, however, the testimony of appellee’s sister Lucy and two male cousins was that appellee was not Will’s daughter and was born before “Will and Mattie got together”.

Appellee claims heirship as the daughter of Will Erwin born before his marriage to her mother, legitimated by their marriage under Ark. Stat. Ann. § 61-103 (1947), which provides in part:

“If a man have by a woman a child or children, and afterward shall intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate.”

Zennie was some eleven or twelve years old when her mother married Will Erwin and had a younger sister, Lucy, who was admittedly not the child of Will Erwin. There is an absence of convincing proof that Will ever cohabited with Zennie’s mother prior to their marriage and that Will ever recognized Zennie as anything other than a devoted stepdaughter after his marriage to Mattie. It follows therefore that the evidence fell far short of meeting the requirements of Ark. Stat. Ann. § 61-103, supra.

Affirmed on appeal and cross-appeal.


text:
    Ark. La. Gas Co. v. Lawrence
    5-3534
    389 S. W. 2d 431
    Opinion Delivered April 26, 1965.

      Cole & Scott, for appellant.

      No brief filed for Appellee.
   Jim Johnson, Associate Justice.

This condemnation appeal involves the admissibility of a plat or survey.

Appellant Arkansas Louisiana Gas Company filed its complaint in Hot Spring Circuit Court on June 4, 1963, against appellees Margaret and T. F. Lawrence seeking to acquire a fifty foot easement for a pipeline across appellees ’ property. Appellant deposited $176 into the registry of the court. The case was tried to a jury on June 29, 1964, and the jury returned a verdict for appellees in the sum of $800.00.

At trial one of the appellees testified that they owned a twenty acre parcel of land (which the gasline easement crosses) and that he contemplated using the property for a housing project. He introduced a plat of the twenty acre tract, made by someone not called as a witness, showing the property laid out in 52 lots. Appellant’s objection to the introduction of the plat was overruled by the trial court. On this point appellant has appealed, urging that the court erred in permitting the introduction into evidence of an unauthenticated private plat. Appellee’s testimony about value of the individual lots, which was clearly not admissible (Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S. W. 2d 86), was not objected to.

It is not necessary for us to decide whether appellee could have authenticated a plat without testimony of the maker. Maps or plats of subdivisions have properly been admitted into evidence in condemnation cases (Arkansas State Highway Commission v. O. & B., Inc., 227 Ark. 739, 301 S. W. 2d 309; Arkansas State Highway Commission v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309) for certain purposes, where a subdivision is in esse at the time of the taking. In the case at bar, however, appellee admitted on cross-examination that the man who surveyed his property staked each corner of each lot, but the stakes were no longer there, that the plat had never been filed [Ark. Stat. Ann. § 17-1201 et seq. (Supp. 1963)], the road shown on the plat had not been dedicated or, apparently, even built, and certainly there was no evidence that any lot had ever been offered for sale. Thus, no subdivision existed. The plat, showing lots, was not a fair representation of the property at the time of the taking. Howell v. Baskins, 213 Ark. 665, 212 S. W. 2d 353; Sanders v. Walden, 214 Ark. 523, 217 S. W. 2d 357. As said in 32 C. J.S., Evidence, § 730, p.1050:

‘ ‘ Generally, a map . . . must be accurate in order to warrant its admission, that is to say, the paper must correctly represent the situation as it existed at the time under consideration; and a diagram showing a hypothetical condition and not shown to represent any condition actually existing, . . . is not admissible. ”

For the error in the introduction of the plat, the case is reversed and the cause remanded for a new trial.


author: Frank Holt, Associate Justice.

text:
    Black v. Cockrill, Judge
    5-3525
    389 S. W. 2d 881
    Opinion Delivered April 26, 1965.
    [Rehearing denied May 31,1965.]

      James R. Howard, for Petitioner.

      Sam Laser, for Respondent.
   Frank Holt, Associate Justice.

The petitioners filed in this court an original petition for a writ of mandamus seeking to compel respondent, the Judge of the Third Division of the Pulaski Circuit Court, to transfer a pending civil suit from that division to the Second Division of that court. The petitioners are the plaintiffs in the pending case.

When they filed their case it was regularly assigned, pursuant to the local court rules, to the Third Division and by agreement of the parties it was set for jury trial. Before trial, however, the petitioners filed a motion to have the cause transferred to the Second Division invoking Ark. Stat. Ann. § 22-114 (Repl. 1962) which provides:

Whenever any suit or action shall be brought or pending in any division of any circuit or chancery court of this state, where said court ha,s more than one [1] division, and it shall appear that the presiding judge of the division in which said action is pending is interested in said suit, or has been of counsel, or is related to either of the parties or their attorneys by blood or marriage, within the fourth degree, or shall for any other reason be disqualified to hear said cause, said suit shall be upon motion of any party, transferred to another division of said court.” The respondent is the brother of two members of the firm representing the defendant. The Circuit Court of Pulaski County is divided into three divisions. Ark Stat. Ann. § 22-326.2.

This is a matter of first impression and obviously is a test case in which both parties equally desire a definitive ruling. In resisting petitioners’ motion the respondent relies upon two points. The first is that the statute under which petitioners are proceeding is unconstitutional since it attempts to expand upon the constitutionally prescribed causes for disqualification of circuit judges. In support of his argument respondent cites Article 7, § 20 of the Arkansas Constitution which reads:

“Disqualification of Judges — Grounds. No judge or justice shall preside in the trial of any cause in the event of which he may be interested, or where either of the parties shall be connected with him by consanguinity or affinity, within such degree as may be prescribed by law; or in which he may have been of counsel or have presided in any inferior court. ’ ’ Our legislature has prescribed the limitation as being within the fourth degree of consanguinity or affinity. Ark. Stat. Ann. § 22-113.

Respondent argues that since the constitution is silent on any relationship between the presiding judge and counsel the well-known legal principle is applicable that the express mention of one thing implies the denial of another facet of that subject. Although the constitution is silent upon such relationship, the legislature has now spoken on this very subject and, we think, in a valid manner.

Our state constitution is restrictive in nature and leaves to the legislature the absolute power to legislate unless prohibited from so doing by our constitution or unless the authority has been delegated to and exercised by our federal government. It is a well established rule of law that any doubt as to the constitutionality of a legislative act must be resolved in favor of it validity. These principles of law are reflected in such cases as State v. Sloan, 66 Ark. 575, 53 S.W. 47; Newton v. Edwards, 203 Ark. 18, 155 S.W. 2d 591; Hackler v. Baker, 233 Ark. 690, 346 S.W. 2d 677, and Hooker v. Parkin, 235 Ark. 218, 357 S.W. 2d 534. In the Newton case we said:

‘ ‘ The Constitution not being a grant, but a limitation of power, the court should, in all cases, uphold a statute unless there is an express or necessarily implied limitation of the legislative power by the Constitution. It is always presumed that the act is valid, and it will be upheld unless it is clearly prohibited by the Constitution, and where it is doubtful whether an act comes within the inhibition of the Constitution, the doubt must be resolved in favor of the constitutionality of the act.”

Certainly it cannot be said that Article 7, § 20 of our state constitution prohibits, expressly or by implication, the enactment by the legislature of the questioned statute. In fact, it tends to carry out the intention of Article 7, § 20 as was expressed in our early cases construing this section. For instance, in Johnson v. State, 87 Ark. 45, 112 S.W. 143, before the enactment of the questioned statute, it was argued that the constitutional provision had no application to attorneys because they were not ‘ ‘ parties ’ ’ within the meaning of the constitution. However, we held that an attorney handling a cause on a contingent fee basis is a ‘ ‘ party” to the litigation. Thus, the presiding judge was said to come within the ambit of this constitutional restriction and, therefore, was disqualified since he and the counsel were related within the prohibited degree. There we said that a technical and strict construction of the word “party” should not be applied. It seems that the legislature in enacting Ark. Stat. Ann. § 22-114 was merely extending the disqualification provisions of Article 7, § 20. The J ohms on case was cited with approval in the later case of Ferrell v. Keel, 103 Ark. 96, 146 S. W. 494 and Copeland v. Huff, 222 Ark. 420, 261 S. W. 2d 2. A liberal scope of the word ‘ ‘ parties ’ ’ has been applied by this court whenever we have had occasion to construe the implications of Article 7, § 20 of our constitution.

In respondent’s brief, recognition is given to the validity of Ark. Stat. Ann. § 22-326.6. Such recognition, in effect, strengthens the position of petitioners. This legislative enactment empowers the Judges of the Second and Third Divisions (respondent) of the Pulaski Circuit Court, by joint action or appropriate rules, to assign of transfer all civil cases for trial. Apparently it was pursuant to this statute that the case at bar was regularly assigned. If this statute giving such authority to respondent is valid as asserted, then certainly it must follow that the legislature also has the authority to prescribe other conditions governing the -transfer of a civil case from one division to another. This is exactly what the questioned statute provides. Nor can it be said the Act contravenes Article 7, § § 21 and 22 which respectively make provisions for the selection of a special judge and the exchange of circuits. Further, the Act is not at variance with the principle of separation of powers of our government.

Having found Ark. Stat. Ann. § 22-114 to be constitutional, we now direct our attention to respondent’s second point which is that this statute is not applicable in the instant case. The main thrust of respondent’s argument on this point is that another judge will be presiding on the day of the trial. It is undisputed that the respondent judge in characteristic fairness has voluntarily refused for some twenty years to preside whenever a relative represented a litigant in his court.

We think Ark. Stat. Ann. § 22-114 is applicable to the case at bar. The pertinent part provides:

“Whenever any suit or action shall be * pending * * * and it shall appear that the presiding judge of the division in which said action is pending * * is related to either of the parties or their attorneys by blood or marriage within the fourth degree * * * said suit shall be upon motion of any party transferred to another division of said court.” [Emphasis added.] Its language is not restricted to who shall be presiding on the day of the trial. Its terms are mandatory that the cause shall be transferred to another division at any time during the pendency of the action upon the motion of any party. The meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. Hines v. Mills, 187 Ark. 465, 60 S. W. 2d 181. It is our duty to construe a legislative enactment just as it reads.

Motion for the writ is granted.


author: Carleton Harris, Chief Justice.

text:
    Chicago, Rock Island & Pacific R. R. Co. v. McConnell Heavy Hauling
    5-3555
    390 S. W. 2d 111
    Opinion Delivered May 3, 1965.
    [Rehearing denied June 7,1965.]

      Wright, Lindsey, Jennings, Lester & Shults, for appellant.

      Jack Holt, Jr. and John F. Park, for appellee.
   Carleton Harris, Chief Justice.

In July, 1962, three representatives of appellant company, Chicago, Rock Island and Pacific Railway, called upon P. O. McConnell, president of McConnell Heavy Hauling, Inc., appellee herein, for the purpose of arranging for McConnell to unload and haul steel components from the Rock Island rail-head to various missile construction sites near Little Rock. Charles J. Novak had been employed by the railroad as a special representative to solicit transportation of materials to the construction sites of missile bases. The Missouri Commerce Commission had granted Rock Island authority to operate a subsidiary motor carrier operation in that state, and this allowed Rock Island to offer to shippers a package proposal whereby construction materials were delivered by rail to the railhead nearest the sites, and from the railhead to the site by truck. Rock Island did not have the necessary authority to make such a proposal in other states, but Mr. Novak solicited transportation business wherever missiles were being constructed. Rates and billing were not discussed by Novak with McConnell but the railroad agent was given a copy of McConnell’s tariff, and Novak stated that he would subsequently send billing instructions to McConnell. Some months later, McConnell was notified of the first shipment of steel, and proceeded to unload it from the railroad cars, and to deliver it to the contractor on the missile sites. The steel was shipped on railroad bills of lading, and Panhandle Steel Products Corporation was named as both shipper and consignee. The bill of lading further stated, “% McConnell Heavy Hauling.” Thereafter Novak informed McConnell that the unloading and hauling bills should he sent to Panhandle, and McConnell followed these instructions, but failed to receive payment. Subsequently, a representative of McConnell Company talked to the manager of Panhandle, and learned that Novak had entered into an agreement with Panhandle for that company to pay $4.00 a ton for unloading and hauling from the rail-head, with the Rock Island to pay the balance of unloading and hauling costs. It is undisputed that McConnell never agreed to perform the work for $4.00 a ton, but rather has insisted at all times upon receiving its full tariff rates, which were considerably higher.

After getting back the invoices sent to Panhandle, appellee made demand upon the Rock Island for the full amount due, vis, $3,097.25 for unloading, and $2,855.00 for hauling. Payment was refused by appellant. Subsequently, McConnell instituted suit for the total amount, and, after the filing of an answer, denying liability, the case was tried by the Pulaski County Circuit Court, sitting as a-jury. After hearing testimony, the court entered its judgment in favor of appellee in the amount of $5,952.25, together with interest at the rate of six percent per aunnni until paid, and from such judgment, appellant brings this appeal. For reversal, appellant relies solely upon the following single point:

‘ ‘ For the Railroad to pay the costs of unloading and hauling in this case would be for it to grant an illegal rebate to the shipper. Therefore, any purported agreement to pay such costs would be illegal and unenforceable.”

This litigation is somewhat unusual in that there is no dispute, but that McConnell Company performed services, and there is no disagreement as to the value of the services performed.

Appellant states that McConnell, instead of properly suing Panhandle Corporation, has sought to make the railroad liable on an oral contract, entered into by an agent (Novak), who had no authority to contract. From appellant’s brief:

‘ ‘ The Railroad has been embarrassed by the conduct of this agent in this case and in several other similar transactions in other states. However, whether the Railroad is embarrassed or hard-boiled, it is flatly prohibited by statutes of the United States from absorbing the costs of unloading and hauling steel and thereby, in effect, granting a rebate to the shipper in this case. ’ ’

Appellant then cites a number of cases, which it contends to be controlling in this litigation. However, we do not agree that the cases cited are applicable to the case at bar, for the authority relied upon by appellant involves agreements between carrier and shipper, carrier and consignee, et cetera. Here, we have an agreement behoeen two carriers. McConnell testified that no mention was made of Panhandle when Novak made the arrangements for McConnell Company to unload the railway cars- and haul the material to the missile sites, and John Hicks, terminal manager for McConnell Company, .gave the Rock Island representatives a copy of McConnell’s tariffs. From the testimony:

“Q. Mr. McConnell, was there any discussion at this particular time concerning ivho was employing your company for this job?
A. No, Chicago said they had, I mean the Railroad said they had the steel to haul and wanted it unloaded and hauled to the site and that we were common carriers within the line and would we haul for them.
Q. They did not identify any third party? In other words, they asked you to haul for them, is that correct?
A. Yes, sir, that’s right.”

Albert F. Hatcher of Deerfield, Illinois, Assistant Vice-President of traffic for the Rock Island, testified that in February, 1963, he learned that Novak had been making-unauthorized representations to contractors and shippers in various' places over the nation, mentioning that he had received a telephone call- from a company in Spokane, Washington, requesting payment for work that had been done. He also mentioned similar occurrences in Tucson, Arizona, and Wichita, Kansas. Hatcher testified that when he would finally locate Novak, the latter would deny that he had made any such arrangements, but said that he would “straighten it out.” Hatcher stated that Novak’s services with the Rock Island were eventually terminated.

Under the undisputed testimony, it accordingly appears that Novak, on behalf of the Rock Island, entered into an agreement with McConnell Company for the latter to haul steel from the railhead at Little Rock to the missile sites; that no mention was made of the steel company for which the hauling was to be performed; that no agreement of any nature was made between appellee and Panhandle ; that McConnell Company made known to the railway representatives its rates by furnishing them a copy of its tariff schedule.

Appellant’s defense is particularly interesting in one respect. It contends that it could not perform such an agreement, because same would be illegal, and therefore unenforceable. Yet, as stated by appellee, in its brief:

‘ ‘ The Appellant is now asking that the Appellee be required to do what it strenuously contends it would be unlawful for Appellant to do. Appellant is asking that Appellee be required to deviate from its own tariff schedule and grant to it, Appellant, an illegal rebate. Appellee is bound by the same laws, and the same regulations of the Interstate Commerce Commission as is the Appellant. Should Appellee agree to accept payment for its services in any amount less or different than the rates and charges specified in its tariff it would amount to an illegal exaction, which is unlawful, and would subject Appellee to penalties.”

We think there was substantial evidence to support a finding that McConnell Company did not occupy the status of a consignee — nor the status of an agent of consignee — ■ nor was it an agent of the appellant railroad. This is simply a case where appellee is endeavoring to recover for an indebtedness due for services performed under a hauling and unloading contract with appellant.

Affirmed.

Mr. Justice Holt not participating.


author: Ed. F. McFaddin, Associate Justice.

text:
    Ridgeway v. State
    5129
    389 S. W. 2d 617
    Opinion Delivered May 3, 1965.
    [Rehearing denied May 24,1965.]

      Ward é Mooney, for Petitioner.

      Bruce Bennett, Atty. General, By: Beryl P. Anthony, Jr., Asst. Atty. General, for Respondent.
   Ed. F. McFaddin, Associate Justice.

The present case is a sequel to Ridgeway v. Catlett, 238 Ark. 323, 379 S. W. 2d 277. That case was decided on June 1, 1964; and in it we said that since Ridgeway had been convicted of the crime of embezzling public funds, no executive pardon could restore to him eligibility to hold public office (Art. 5, § 9 of the Arkansas Constitution). As a direct result of that holding, Ridgeway filed, on July 16,1964, in the Circuit Court of Jackson County, Arkansas, his pleading entitled, “Petition for Writ of Error Coram Nobis,” in which he sought to expunge from the records of that Court his conviction for said embezzlement. The conviction was based on a plea of guilty which Ridgeway made in open Court on September 5,1955.

The regular Judge of the Jackson Circuit Court is Hon. Andrew W. Ponder. He exchanged circuits with Hon. P. S. Cunningham, Chancellor of the 8th Chancery District; and Judge Cunningham presided over the hearing on this motion for writ of error coram nobis. Testimony was heard in open Court on August 21,1964, the witnesses being Mr. Ridgeway, Hon. Judson Hout, an attorney of Newport, and Hon. Andrew Ponder, the Judge who accepted Ridgeway’s plea of guilty and sentenced him to the penitentiary in 1955. At the conclusion of the hearing Judge Cunningham denied Ridgeway’s petition for writ of error coram nobis, and from such judgment Ridgeway prosecutes the present proceeding to this Court, which is really a petition for certiorari.

While the motion for writ of error coram nobis contained a number of allegations, all were waived by Ridge-way’s present counsel when, at the opening of the trial on August 21, 1964 (from which trial comes the present appeal) Ridgeway’s present counsel made the following statement:

“We are relying on the allegations in paragraph 2 and 6 where we allege that he was unable financially to obtain legal counsel of his own volition; and that he never at any time was afforded an opportunity understandingly and intelligently to waive Court appointed-counsel. Legally, that is the whole substance of our lawsuit upon which we will make proof. ’’

On May 21,1955 an information was filed by the Prosecuting Attorney in the Jackson Circuit Court, charging: that Ridgeway ( during the period he was delinquent tax collector, did unlawfully and feloniously use and appropriate funds belonging to the County of Jackson and to the various school districts therein for his own uses and purposes. On the same day of the filing of the information, the Circuit Court on the motion of the Prosecuting Attorney removed Ridgeway from office as said Tax Collector, pursuant to Ark. S-tat. Ann. § 41-3920 et seq. (1947). Ridgeway was arrested on May 21,1955, and remained on bond until September 5,1955, when be entered bis plea of guilty and was sentenced to five years in tbe penitentiary.

After tbe plea of guilty and tbe sentence, Ridgeway’s mother went to Judge Andrew Ponder and told bim tbat she would never believe tbat her son could commit such a crime if be were in bis right mind. So, in order to satisfy tbe mother, Judge Ponder specified in Ridgeway’s commitment to tbe penitentiary tbat be should be sent via tbe State Hospital for thirty days examination. Judge Ponder testified in the' bearing in August 1964 tbat be never bad any doubt of Ridgeway’s sanity and be merely sent bim to the hospital for examination and report in order to satisfy Ridgeway’s mother, a very fine Christian woman. Tbe hospital report was sent back to Judge Ponder and introduced in evidence in this case, and it showed Ridgeway to be perfectly sane. After thirty days in the State Hospital Ridgeway went on to tbe penitentiary and served enough of bis sentence to be eligible for parole, and was later pardoned, as previously recited.

At tbe trial before Judge Cunningham in 1964, there was no claim tbat Ridgeway had ever been insane, so no issue of insanity is in this case. Among the points on which Ridgeway relies there are: (1) tbat be was not represented by counsel when be entered his plea of guilty in 1955; and (2) that be was not able to employ counsel and did not understand that court appointed counsel would be furnished bim free of charge. Of course, these claims of Ridgeway appear to us now as an afterthought. If this Court bad held in Ridgeway v. Catlett, supra, tbat tbe pardon which Ridgeway received in fact restored bim to eligibility to public office, then we feel confident that no writ of error coram nobis would ever have been considered or filed; and this leads us to a consideration of tbe real purpose and extent of a petition for writ of error coram nobis. In Howard v. State, 58 Ark. 229, 24 S. W. 8, we said of the writ of error coram nobis:

“The office of tbe writ is to correct an error of fact in respect to a matter affecting tbe validity and regularity of tbe proceedings in tbe same court in which the judgment was rendered and where the record is, when the error assigned is not for any fault of the court; those errors which precede the judgment — as error in the process, or through default of the clerk; where an infant appears by attorney, and not by guardian; where the defendant was insane at the time of the trial, or died before judgment. And this writ has been sustained where the defendant was induced to plead guilty to a charge of felony through fear and by reason of the threats of a mob.
‘ ‘ But it will not lie to contradict or put in issue any fact that has been already adjudicated in the action. An issue of fact wrongly decided is not error, in that technical sense to which the writ refers. If the error lie in the judgment itself, it must be corrected by appeal or writ of error to a superior court.”

In Mitchell v. State, 234 Ark. 762, 354 S. W. 2d 557, we discussed in some length the matter of a writ of error coram nobis and cited some of our earlier eases. The writ is to correct mistakes of fact, not mistakes of law. If the Trial Court made any mistake in having Ridgeway sent to the State Hospital enroute to the penitentiary, then certainly that was a mistake of law and not susceptible to being considered on writ of error coram nobis. But the sending of Ridgeway to the 'State Hospital and the examination of Ridgeway by the State Hospital officials and the report to the Circuit Court certainly shows that any possible claim of Ridgeway’s insanity was before the Circuit Court and cannot now be considered on petition for writ of error coram nobis. See Mitchell v. State, supra.

Ridgeway’s first point is his claim that he was allowed to enter a plea of guilty without having a lawyer represent him; and in making this plea he seeks to bring himself under the holdings of such cases as Dement v. State, 236 Ark. 851, 37 0S. W. 2d 191; Carnley v. Cochran, 369 U.S. 506, 8 L.Ed. 2d 70, 82 S. Ct. 884; and Gideon v. Wainwright, 372 U.S. 335, 9 L.Ed. 2d 799, 83 S. Ct. 792, 93 A.L.R. 2d 733. But the evidence in this coram nobis hearing clearly and without contradiction shows that Ridgeway stated in open Court that he did not desire an attorney to represent him when he was sentenced in 1955. Ridgeway testified on direct examination in the cor am nobis hearing:

“Q. Did the Court ask you if you had an attorney ?
“A. Yes.
‘ ‘ Q. All right, if you remember, what did you tell him ?
“A. I said ‘No,’ and he said, ‘ W ell, the Court will appoint you an attorney. ’ And I said I didn’t want an attorney, that I would act as my own attorney and throw myself on the mercy of the Court. ’ ’

Then on cross examination Ridgeway testified:

“ Q.. So to recap it, if I do it correctly, the Court asked you if you wanted” the Court to appoint you an attorney. You said that you didn’t want an attorney, you couldn’t afford it, anyway you would be your own attorney and throw yourself on the mercy of the court.
“A. I don’t think I said I couldn’t afford it at that time, I am trying to recall exactly what was said and I am almost; well, I knew what was said that he asked me, the Judge asked me if I wanted an attorney that the Court would appoint me an attorney; I said I did not want an attorney, that I would act as my own attorney and throw myself on the mercy of the court.
‘ ‘ Q. There was no conversation then between you and the Judge with respect to the fact that you couldn’t afford an attorney. You merely stated you didn’t want an attorney, you would act as your own attorney and throw' yourself on the mercy of the court?
“ A. I don’t remember any conversation, Mr. Harkey.
“'Q. Did I state correctly what took place?
“A. Yes.
‘ ‘ Q. Mr. Ridgeway, just a few more questions, First, so the record will be perfectly clear: There was no conversation now on the date of sentence between you and Judge Ponder about you couldn’t afford an attorney?
“A. Between Judge Ponder and myself?
‘ ‘ Q. That is right.
“A. No, sir.”

Hon. Judson Hout, who represented Ridgeway in other matters, testified that Ridgeway told him in 1955 that he (Ridgeway) had decided he did not want an attorney because he was going to plead guilty and throw himself on the mercy of the Court. Judge Andrew Ponder, who accepted Ridgeway’s plea of guilty and gave bim the minimum sentence in 1955, testified in this coram nobis hearing that before he accepted Ridgeway’s plea he told him (Ridgeway) in open Court that the Court would appoint him an attorney who would serve free of charge; and that Ridgeway stated in open Court that he did not want an attorney because he was guilty and wanted to throw himself on the mercy of the Court.

Thus, Ridgeway and the other two witnesses all agree that before Ridgeway entered his plea of guilty in 1955 he was offered counsel and refused the same. Under these facts, Ridgeway does not bring himself under the rule of the cases on which he relies.

Mr. Ridgeway’s second point is that he did not understand that he would have a lawyer without cost, even if the Court might appoint one; and so he claims that he did not “intelligently and under standingly” refuse counsel. But the evidence preponderates against him on this point. Judge Ponder testified at length how Ridgeway came to him in chambers desiring to enter his plea, how Judge Ponder required him to appear in open Court, how the Court painstakingly and sympathetically discussed the case with Ridgeway in open Court, and how the services of. free counsel were offered to Ridgeway and declined

£ £ Q. And did you explain to him that under our system he could have a court appointed attorney free of charg-e if he desired?
£ A. I certainly did. ’ ’

There is also presented a point that Hon. Judson Hout should hot have been allowed to testify in the coram nobis proceedings because he had represented Ridgeway in other matters. There are several answers to this point, but only one need be mentioned. Mr. Ridgeway testified:

££Q. Did Mr. Jud Hout represent you in that matter?
££ A. No, sir, he did not.
£ £ Q. In any conversation that you did have with Mr. Jud Hout did he ever suggest that you ought to enter a plea of guilty?
££ A. No, sir, he did not.”

We conclude that the Trial Court was correct in denying the motion for writ of error coram nobis.

       In Hodges v. State, 111 Ark. 22, 163 S. W. 506, we said: “Certiorari must be, and is, the appropriate remedy to review the action of the trial court in refusing the petition for writ of error coram nobis. In view of the quoted language, we treat the present case as being before us on certiorari.

       Paragraph 2 of Ridgeway’s said motion for writ of error coram nobis reads:
      “This defendant under date of September 5, 1955, was allowed without benefit of legal counsel to enter a plea of guilty to a felonius crime described as embezzlement and misappropriation of public funds in his capacity as a delinquent tax collector for Jackson County, Arkansas, said crime carrying with it a possible sentence of 21 years in the State Penitentiary and forfeiture of the defendant’s right to hold public office in Arkansas forever, notwithstanding said defendant, before his plea of guilty, told the Court he had desired counsel but was unable to employ an attorney because he was wholly without money or credit. After this statement by defendant in open court,'the Court still did not appoint or offer to appoint a qualified attorney to consult and advise with him concerning his guilt and legal rights before accepting his plea of guilty. The action of this Court in thus accepting a plea of guilty from defendant violated the defendant’s rights and violated due process of law as defined by Article 2, Section 10, The Constitution of Arkansas; Amendment No. VI to the Constitution of the United States; and Amendment No. XIV to the Constitution of the United States.” ’ Paragraph 6 of said Motion reads:
      “At no time prior to. acceptance of his plea of guilty to the crime charged by this Court did the defendant ever have an opportunity understandingly and intelligently to accept or waive legal counsel by appointment of the Court.”

         In addition to the annotations in A.L.E. cited in the Mitchell case, we call attention to the following texts and writings regarding coram nobis: 24 C.J.S. p. 661 et seq., “Criminal Law” § 1606 et seq., 49 C.J.S. p. 561 et seq., “Judgments” § 311 et seq.,; and Am. Jur. Vol. 30A, p. 687, “Judgments” § 734 et seq.


author: G-eorge Rose Smith, J.

text:
    Dennis v. Dennis
    5-3569
    389 S. W. 2d 631
    Opinion Delivered May 3, 1965.

      Parker Parker for appellant.
    (7. R. George for appellee.
   G-eorge Rose Smith, J.

.This is a divorce suit brought by the appellee,- Betty Dennis, to whom the chancellor awarded a divorce on the ground of personal indignities. An appeal and cross appeal present a number of questions for review.

The appellant’s principal contention is that the court should have awarded him a divorce on the ground of adultery. He filed a counterclaim bringing a corespondent into the case and offered much testimony tending to establish an adulterous relationship between Betty Dennis and this man. This testimony is contradicted by at least an equal number of witnesses who took the stand in Betty’s behalf. Significantly, one of Betty’s most loyal defenders was the wife of her supposed paramour. It would add nothing either to the strength of this opinion or to its usefulness as a precedent for us to detail the conflicting testimony upon this hotly contested issue. The question is essentially one of fact, upon which the conflicting proof is about as nearly evenly balanced as it could be. Unquestionably some of the testimony on one side or the other was deliberately false. In this situation we defer to the chancellor’s judgment, for his opportunity to observe the witnesses at firsthand put him in a position that is immeasurably superior to ours. Murphy v. Osborne, 211 Ark. 319, 200 S. W. 2d 517.

Our decision upon this first point'goes far toward answering the appellant’s contentions that the court should not have aivarded Betty either a divorce or the custody of the couple’s three-year-old son. Dennis undoubtedly was extremely jealous of his wife. He not only accused her of infidelity but also made the same' charge in conversations with friends. Such unfounded assertions were in themselves indignities justifying a dissolution of the marriage. Relaford v. Relaford, 235 Ark. 325, 359 S. W. 2d 801. And if in fact Betty is a woman of fine character, as her proof indicates, the chancellor was right in giving her the care of a child of tender years.

Both litigants are dissatisfied with the chancellor’s dceision to permit the appellee to occupy the family home near Danville as long as she remains unremarried. Dennis thinks this property should have been sold and the proceeds divided. There is persuasive proof, however, that Betty used funds from her first husband’s estate to contribute at least her full share toward the purchase of the property. In any event we should be. reluctant to disturb the chancellor’s conclusion to award the possession of the homestead to the wife. Childers v. Childers, 229 Ark. 11, 313 S. W. 2d 75. Betty complains of the fact that her right to occupy the property will terminate if she remarries, but we certainly cannot say that the appellant is under a duty to contribute toward furnishing a home for the appellee’s third husband if she should decide to marry again.

The appellee insists that the chancellor’s allowance of $80 a month as alimony and child support is inadequate. We reject this contention. Dennis has an income of only about $5,000 a year, out of which he must pay $50 a month to his first wife. Betty receives Social Security payments for the benefit of her children by her first marriage, of more than $250 a month. She also has some income of her own and will be entitled to occupy the homestead rent-free as long as she remains single. In the circumstances the chancellor’s allowance of alimony was as generous as it should be.

We affirm the decree and allow the appellee’s counsel an additional fee of $350 for his services in the case.


text:
    Robinson v. J. A. Riggs Tractor Co.
    5-3567
    389 S. W. 2d 629
    Opinion Delivered May 3, 1965.

      John B. Hainen, for appellant.

      Smith, Sanderson, Stroud S McClerlcin, for appellee.
   Paul Ward, Associate Justice.

This litigation stems from the sale of a heavy piece of earthmoving’ equipment, known as a traxcavator. The traxcavator was sold to W. W. Robinson (appellant) on May 9, 1962 by J. A. Riggs Tractor Co. of Little Rock (appellee), on a conditional sales contract, for the price of $23,743.68. There was a trade-in allowance of $665 and the balance' payable in monthly installments of $638.68 each.

It was the understanding of both parties that the traxcavator was new equipment and not used equipment when the sale was consummated. It is admitted by appellee that it gave a warranty on all new equipment (including this traxcavator) for six months from the date of sale. Appellee did not give a warranty on any used equipment sold by it.

Appellant kept and used the traxcavator from May 9, 1962 until about the first of February, 1964, although he became delinquent in his monthly payments on October 9, 1962, and never thereafter became current.

On February 19, 1964 appellee filed suit in chancery court seeking judgment for the balance due and to impress a lien on the traxcavator to secure payment of any judgmeat found against appellant. Appellant answered, in effect, that after using the traxcavator for some months he learned that it was not new equipment (as represented by appellee) but that it was used equipment when sold to him, and also that appellee elected to take the traxcavator in full payment of any balance due on the same.

On the issues above joined a hearing was held which resulted in a decree in favor of appellee. In a written memorandum opinion the trial court said: “. . . the Court has carefully considered all the evidence in this case and finds that the real weight of the testimony preponderates in favor of the plaintiff. ...” The court entered judgment for the amount due appellee, and held it was secured by a lien on the traxcavator; that if appellant did not pay the judgment by October 23, 1964 the clerk (as commissioner) would sell the traxcavator and apply the proceeds to the judgment. The final result (after the sale and application of the proceeds) was a deficiency judgment against appellant in favor of appellee in the amount of $14,004.43 and costs.

Appellant now prosecutes this appeal urging a reversal on two points. The first point is that the weight of the evidence shows the traxcavator was a “used machine” when it was sold to him. The other point is, in substance, the same as the first one and need not be discussed.

On the vital question of whether the traxcavator was new (as claimed by appellee) or was used (as claimed by appellant) when sold we agree with the trial court’s finding that “the real weight of the testimony preponderates in favor of the plaintiff ”.

Appellant relies on two separate facts or circumstances to establish that the traxcavator was used equipment when he bought it. These will be discussed separately.

(a) After appellant had used the equipment several months he had occasion to remove a track from the traxcavator and found “several rocks” with paint on them. Three such rocks or gravel were introduced in evidence but are not among the exhibits on file in this Court. These painted rock, in the opinion of appellant and two of his employees, indicated the equipment had been used before it was purchased by appellant. On the other hand there was testimony by people who had worked with this kind of equipment that this could happen to new equipment. Also, the vice-president of appellee (who had been with the company thirty-two years) testified that he saw the gravel or rocks in question; that he had frequently visited the factory which made the traxcavator; that he knew it was usual for new equipment to be placed on a thirty-acre lot of ground covered with gravel very much like the said exhibits ; that later it was driven off the lot and painted before being shipped; and, that this fact could account for the gravel in question.

(b) After the traxcavator had been in use by appellant for several months he discovered that the two batteries on the traxcavator were not exactly the same size, that the metal frame which held them had been bent and would not hold two batteries of the larger size. This, to appellant, indicated the equipment had been used when he bought it from appellee. There was testimony by appellee however that the record showed the batteries were installed by appellee while the equipment was in its possession before it was sold.

In addition to the above, the testimony shows that on several occasions when appellant was asked to make up the past due payment, he offered to do so but made no claim the traxcavator had been used when he bought it. Several witnesses, who were longtime employees and who were familiar with the records and inventories kept by appellee, testified positively that this particular traxcavator was new, and had never been used, when it was sold to appellant.

In view of the state of the record wherein only a fact question is involved, we are unable to say the decree of the trial court is not supported by a preponderance of the evidence.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Rowland v. Wilkerson
    5-3546
    389 S. W. 2d 627
    Opinion Delivered May 3, 1965.

      Don Langston and Carl Langston, for appellant.

      Frances D. Holtzendorff and Ghowning, Mitchell, Hamilton and Burrotv, for appellee.
   Sam Robinson, Associate Justice.

This is a controversy regarding the sale by the Steele Memorial Baptist Church of the real estate on which the church building is located. The Pastor and Trustees agreed to sell the property to Wilson Realty, Inc. for the consideration of $37,000 and executed a deed to Wilson. The Realty Company gave its check in payment of the purchase price, but learned that the authority of tlie church officials to sell the property was being questioned, and asked that its check be returned, which was done.

Appellants, Aaron Rowland et al, holding themselves out as members of the church, filed this suit to enjoin the Trustees of the church, and the Pastor, from going through with the sale and to enjoin Wilson from purchasing the property. Appellants allege that a majority of the members of the church had voted against the sale. The Pastor and Trustees answered denying they were-without authority to execute the deed, and Wilson answered also denying that the church officials did not have the authority, and asked for specific performance of the contract. The Chancellor held that a majority of the church members, qualified to vote on the question, had approved the sale and ordered the Pastor and Trustees to convey the property to Wilson in accordance with their agreement. These opposing the sale have appealed.

The issue here is narrow. The sole question is whether 43 persons out of 63 who voted against the sale were eligible to vote on the question of selling the property. If the 43 persons were not eligible to so vote, there was a majority in favor of the sale.

The court’s position in taking jurisdiction in an issue of this kind is expressed in Holiman v. Dovers, 236 Ark. 211, 366 S. W. 2d 197. There we said: ‘ ‘ The civil courts are not concerned with mere schisms stemming from disputations over matters of religious doctrine, not only because such questions are essentially ecclesiastical rather than judicial but also because of the separation between the church and the state. And even when property rights are involved the rival factions may be remitted to their remedy within the denomination if its form of government is such as to permit an appeal to higher ecclesiastical authority.” Here, property rights are involved and the church form of government does not provide for an appeal to higher ecclesiastical authority.

When the vote was taken on the question of selling the church property, 63 of those present voted against the sale; 43 voted for the sale. Later, the Trustees, or Deacons, held that 44 of those voting against the sale were delinquent in paying their church dues and were, therefore, according to the rules of the church, not qualified to vote on the question of selling the church property. Likewise, it was held that two of those who voted for the sale were disqualified. Hence, the result was 41 valid votes in favor of the sale and 19 valid votes against it.

There is no question about those being delinquent in paying their dues who were found to be delinquent by the Pastor and Deacons. The question is, did such delinquency, according to the governing rules of the church, disqualify from voting those who were delinquent. There is evidence that a good many years ago the church adopted rules as set out in Hiscox Standard Manual for Baptist Churches, and that Hiscox provides no rule whereby a church member is disqualified from voting on church business because he is delinquent with his dues. But the record also shows that the church had adopted Robert’s Rules of Order, and that the “Bible Standard Church Directory” and “Busy Pastor’s Guide” were used.

But notwithstanding any rules that may have been adopted prior to that time, the preponderance of the evidence shows that on February 28,1963, the majority voted to disqualify as voting members of the church those who had nto paid their dues by April 4,1963, which was before the vote on selling the church property.

Several ministers of the church testified, as experts, that the church has authority to adopt such a rule. Hence, according to the rule prevailing at the time of the vote on selling the property, the 46 members delinquent in their dues were not qualified to vote. A majority of those who were qualified voted in favor of the sale.

The decree is affirmed.


text:
    Moltz v. Dalrymple
    5-3543
    389 S. W. 2d 625
    Opinion Delivered May 3, 1965.

      Carlton Cmrie, for appellant.

      Coleman, Gantt, Ramsay & Cox, for appellee.
   Jim Johnson, Associate Justice.

This is in essence a boundary line dispute. The parties involved are neighbors in Shady Grove Subdivision in Pine Bluff. Appellant's J. E. and Joann Moltz own Lot 16 and appellee John B. Dalrymple owns Lot 17. Appellants filed a complaint in Jefferson Chancery Court on July 7, 1964, alleging that appellee built a house within ten feet of their common lot line in violation of the restrictive covenants of the subdivision, thus depreciating the value of appellants’ property, and prayed an injunction requiring appellee to move his house so it would not ‘ ‘ encroach upon the restricted area in which appellee is prohibited to build. ’ ’ (Appellants do not claim that appellee has encroached upon their lot.)

At trial on August 12,1964, the chancellor found that appellants “failed to establish by a preponderance of the evidence that there has been a breach of the covenant involved to such an extent that the Court would be justified in granting the relief prayed for.” For reversal of the decree, appellants urge that the evidence in the case clearly establishes that an encroachment exists.

The recorded bill of assurance for Shady Grove Subdivision contains certain restrictive covenants including one that states in part: “No building shall be erected nearer than ten (10) feet to any side lot line.” Appellants contend that appellee’s house is less than ten feet from the side lot line. One of the appellants testified that he tied a string between two iron pins marking the boundary between Lots 16 and 17, measured the distance from the line to the foundation of appellee’s house and found that one corner was only eight feet, nine or ten inches from the line and another corner was about nine and one-half feet from the lot line. Photographs were introduced showing appellants ’ measurements of the distance from appellee’s house to the string which allegedly marked the lot line.

Two highly qualified registered professional engineers testified at trial, Walter Combs who had surveyed for appellants, and Leo Tyra for appellee.

Mr. Combs, an engineer since 1907, stated that when he made the survey of appellants ’ property for their construction loan in 1963, he had to ‘‘hunt all over the neighborhood to find something to work from.” “I found one iron [pin] ... at the southwest corner of Lot 16. That was the only iron I could find. ’ ’ He testified that the survey of Lot 16 was as accurate as he could make it, having nothing but one iron to work from. He said on cross-examination that the east corner could easily be ten or twelve inches off, but that the northwest corner was within ‘ ‘ five or six inches of what you call the true corner. ’ ’ He said that working under the same set of conditions competent engineers might well differ, and that, under these conditions, ‘ ‘ all you can do is pull from one corner and make them -all fit together . . . like a cross-word puzzle . . . and don’t get on the other fellow if you can help it. ’ ’ When asked if he was willing to state to the court the line which he established as the line' of appellants’ property is an absolute true and correct line, Mr. Combs repliedly candidly :

“I can’t swear to it. It’s the best I could get up there with the information I had to work with. Whether it’s absolutely accurate or not, I wouldn’t swear to it. ’ ’

Leo Tyra, an engineer since 1954, surveyed Lot 17 for appellee in the spring of 1964 prior to appellee’s construetion. He testified that he had examined the original subdivision plat in the recorder’s office and found that plat was not tied into a government survey, but apparently was commenced from a center line of a street. Some of his testimony'follows:

“We ran into a complication here, because there really is no starting point. Wé guess at the center line of 28th Street. This plat has numerous curves existing at the time it was laid out. It’s a very complicated survey. The starting line or point, I assumed was, from my survey, in the center line of 28th Street, and come up along the railroad right of way to the back of the lots, other lots, in the same subdivision trying to tie in and find the original pins of the original survey, and at an appropriate time you make your cross-over as near as you can to the lot you are starting to survey. You search that lot for pins. You truly hope to have the original pins there . . . We set wooden stakes, set up over these stakes and turn the next necessary angle and make the measurements called for in the original plat, and then really search out for the original pins.”
‘ ‘ I have been out there several times ... I met with [appellant] one afternoon . . . and went through certain measurements where I showed him how we tided to relate this property to the property around it so no one was being encroached on as far as the property Aims concerned.”
"The afternoon I Aims there . . . I tried to explain to [appellant] then and there that he Avas putting too much accuracy to the tail end of the survey ... it Avould be similar to Aveighing in tons and all of a sudden . . . begin talking about pounds.”
"Noav, talking AAdth [appellant] that night I met with him, I tried to explain to him. I went back and told him hoAV you can’t use these center lines of these existing streets to survey a lot in a plat bceause houses AAdiich have been built prevent you from making the curves that the data calls for in the plat. I explained to him that the inaccuracies in bringing such a survey from 28th Street Avould not let us draw a string between two pins Ave had finally set and say those two pins Avould be accurate between half a foot and at the time I left him I though he understood that and realized those inaccuracies are inherent to a survey of this type.”

The trial court in its opinion discussed the testimony of both engineers and stated: “Even though this is not a boundary line dispute, the true boundary line separating the two lots is material and from the evidence, the Court cannot definitely determine just where the true line is.”

A careful study of the testimony of the two engineers reveals that although they employed different methods their testimony was quite consistent. On trial de novo on the record before us, we are also unable to determine just where the true line is. It follows, therefore, that the finding of the chancellor is not against the weight of- the evidence.

Affirmed.


text:
    Banks v. Jones
    5-3551
    390 S. W. 2d 108
    Opinion Delivered May 3, 1965.
    [Rehearing denied June 7,1965.]

      Bernard Whetstone, for appellant.

      Shackleford S Shackleford, for appellee.
   Frank Holt, Associate Justice.

This appeal arises from a decree of the chancery court refusing to hold that a corporate entity was a fiction and, therefore, appellee became personally liable for the injuries sustained by appellant.

In August 1960 Jumping Jills, Inc., was duly incorporated pursuant to the statutes of Arkansas. The corporation proceeded to operate a business which offered to the public the use of certain gymnastic equipment commonly referred to as “trampolines”. In September 1960 the appellant’s sixteen-year-old son sustained an injury while using this equipment. Suit was instituted in April 1961 against the corporation to recover for the injuries based, upon alleged negligence in the operation of the equipment. In March 1963 appellant filed an amendment to her complaint making the appellee an additional party individually and as Gerald Jones d/b/a Seven Drive In Theater. By the amendment appellant alleged the appellee had organized the corporation to avoid personal responsibility owed to the public; that the corporation was a fiction; that the corporate entity should be set aside and a judgment entered against the appellee as an individual for the injuries sustained. The personal injury suit was tried to a jury resulting in a judgment in the amount of $1,000.00 for ap- • pellant and also $1,000.00 for her minor son. The circuit court reserved from the jury the issue raised by the amendment to the complaint.- Judgment was entered against the-corporation upon the jury verdict. The trial court then. transferred to equity the issues of corporate fiction and resulting individual liability which were raised by the amendment.

On appeal from the adverse ruling rendered by the - chancery court appellant first contends for reversal that the court erred in holding that the £ £ corporate veil should not be pierced and the responsibility placed” upon the appellee. Appellant’s main argument under his first contention is that since appellee was the owner of 80% of the stock in Jumping Jills, Inc., the owner of the Seven Drive In Theater, and owner of land upon which both enterprises were located the two enterprises were a composite operation owned by appellee and, therefore, he was individually responsible.

The trampoline enterprise was adjacent to the appellee’s theater business on land owned by the appellee individually. Only the appellee and the minor who was injured testified in the case. The minor testified that he observed no public signs indicating that the trampoline business was owned by Jumping Jills, Inc. He bought his tickets at separate entrances when attending the theater and trampoline area and neither ticket admitted him to the other business operation. His testimony tends to confirm the appellee’s assertion that the two businesses were operated as separate ventures. Appellee testified that he was the sole owner of the Seven Drive In Theater and the land upon which the theater and trampoline businesses were located. A fence separated the two businesses; separate admission prices were paid. It was a family owned corporation since he owned 80% of the Jumping Jills, Inc., his wife 10%, and his step-son 10%. As president of the corporation he employed the personnel which consisted of two individuals. The corporation paid $200.00 per month to the Drive In Theater business under a lease agreement for the use of the trampoline equipment and the lands. Separate books were kept on the Wo businesses and advertising was handled separately. The trampoline business existed only for about three months in 1960 since it was unprofitable; federal and state income tax returns were properly filed by the corporation. The corporation purchased and paid $800.00 as an annual premium for liability insurance through an insurance agency. The insurance company,'a Canadian organization selected by the ' agency, later became bankrupt. Appellee had no knowledge of this until after this claim arose. The testimony of appellee is undisputed and conclusively established that Jumping Jills, Inc., was a properly constituted and existing corporation under the laws of our state at the time of the alleged injuries. Also, that the dissolution of the corporation was regularly and properly accomplished.

It is true that in special circumstances the court will disregard the corporate facade when the form has been illegally abused. Black and White, Inc. v. Love, 236 Ark. 529, 367 S. W. 2d 427. However, the rule of piercing the fiction of a corporate entity should be applied with great caution. In the case at bar there was no interchange of employees, facilities, funds and management as was present in Black and White, Inc. v. Love, supra, relied upon by appellant. We agree with the chancellor that the evidence in the instant case does not support a finding that there was an illegal abuse of the corporate form to the injury of the appellant. Further, it is well settled that a corporation and its stockholders are separate and distinct entities even though a stockholder may be the owner of a majority of the stock in a corporation. Mannon v. R. A. Young & Sons Coal Co., 207 Ark. 98, 179 S. W. 2d 457; Atkinson v. Reid, 185 Ark. 301, 47 S. W. 2d 571; G. W. Jones Lbr. Co. v. Wisarkana Lbr. Co., 125 Ark. 65, 187 S. W. 1068.

Appellant’s next two points alleged confiscation by appellee of approximately $500.00 of the assets of the dissolved corporation under such circumstances as to hold, him personally liable to that extent for the judgment against the corporation. These issues were not before the trial court and cannot properly be raised for the first time on appeal. Missouri Pacific R. Co. v. J. W. Myers Comm. Co., 196 Ark. 976, 120 S. W. 2d 693 and Angelletti v. Angelletti, 209 Ark. 991, 193 S. W. 2d 330. The pleadings, as. amended, sought only to pierce the corporate veil and in no way sought to follow the assets of the corporation for • the satisfaction of the judgment. The cause was not tried. on this issue. The trial court’s written opinion recognized. only the issue of piercing the corporate veil.

However, if we consider these two points on their • merits we must hold there is no evidence that the appellee • confiscated any of the corporate assets with the intent to defraud the appellant.

The decree is affirmed.


text:
    Lane v. Rachel.
    5-3553
    389 S. W. 2d 621
    Opinion delivered May 3, 1965.

      Shelby R. Blackmon, J. Fred Jones; for appellant.

      Rail, Purcell & Boswell, for appellee.
   Frank Holt, Associate Justice.

Appellants brought this action to rescind a sales contract, cancel a deed, a note, and a mortgage, and for the recovery from appellees of the amount paid on the purchase of a dwelling. The house was sold to appellants by the builder and owner, appellee Marshall Rachel, through his agents, appellees Thomas and Carlisle. In the alternative, appellants sought damages in the amount of $14,000.00. The appellants alleged that appellee Rachel was grossly negligent in the construction of the house and that the appellees made deceitful and fraudulent representations in connection with the sale of the house. The appellees filed an answer asserting only the affirmative defense that the house was built according to F.H.A. specifications. In resolving the issues in favor of the appellees, the chancellor held that the appellants had failed to prove any negligence or fault on the part of appellee-builder and that the damages to the house were beyond his control.

For reversal appellants contend that appellee Rachel, the builder, “was guilty of gross negligence and constructive fraud in the design and especially in the construction of the footing for the foundation of the house;” that the representations of appellees Rachel and Carlisle “as to the adequacy of the foundation and the quality of the house * * * amounted to fraudulent misrepresentations;” and that the decree of the chancellor was against the preponderance of the evidence. Since these contentions are so closely related and intermingled, we discuss them together.

In August 1961 appellants purchased the house in question from appellee Rachel and his wife for $17,500.00. They made a substantial down payment and regular monthly payments until the trial of this cause in September 1964. Appellee Carlisle, -as sales agent for the owner and builder, appellee Rachel, sold the house to the appellants. When Carlisle showed them the house, appellant Lane noticed that the. house was prefabricated or precut and the walls of the house appeared thinner than usual. Upon inquiry the sales agent represented that the house was constructed so that none of the weight rested on the interior walls of the house. The purchaser, Lane, also noticed there were fewer pillars underneath the house than he expected to see and the agent, Carlisle, assured him that not as many pillars were needed as usual since all the weight of the house was on the outside walls. Lane testified: “I asked him then if this be the case, is there an adequate foundation to hold all this weight which is on the outside walls and he assured me that it was.” Later Lane talked directly to Rachel, the owner and builder, about it. Lane testified: “* * * we again asked Mr. Rachel the same questions and he assured, us the same thing. The weight resting on the outside walls required fewer pillars underneath the house to hold the weight of the interior walls, plus the fact that there was an adequate foundation to support all this weight that was on these walls.”

The appellants moved into the house the first part of September 1961 and- about two months later they noticed the walls were beginning to crack on the west end and the front of the house. The house was built on a slope with the west end on the lower part of the slope. The appellants made an unsuccessful complaint to appellees. The house continued to develop cracks and the following spring appellee Rachel attempted to correct them by putting additional footings under the west end. This did not correct the defects and a few months later appellee Rachel removed the bricks from the west part of the house and replaced them. By this time the sheetroek in the bedrooms on the west end had ripped apart and there were cracked places in the combination kitchen and den extending into the living room. On the north side of the house the bricks had separated at the top and the brick wall had moved one inch from the molding. The floor of the den had dropped from the baseboard three-fourths of an inch and tlie brick was pulled away from the entrance of the front door for a distance of approximately one inch. There was other damage to the house, including the fact that it had noticeably shifted down-slope. The testimony of appellant Lane as to the representations of appellees that the foundation was adequate to support the house and that the dwelling became uninhabitable was corroborated by his wife. A structural engineer, Mr. Dickinson, also corroborated them as to the condition of the house.

When the F.H.A. learned of appellants’ plight the agency wrote to them: “We suggest that a qualified structural engineer be employed to design a foundation which will be adequate to support the dwelling.” It was from Dickinson’s inspection that the appellants first knew why the foundation was inadequate. According to him, and it was undisputed, the subsoil was expansive clay and an adequate foundation required a much deeper footing; the concrete footing had not been poured into forms and: “That the footing across the west side had been poured virtually on top of the ground, the original ground, and that the ground on the outside of the footing had been filled so that it was perhaps a foot above the original ground as inside, underneath the house, so that any water underneath the house couldn’t get away. It had been ponding underneath there. * * * This footing was poured on top of ground that had roots in it. No attempt was made to dig down far enough to get to completely undisturbed material. * * * The dirt had been scraped out more or less in a half moon shape and the concrete poured in with the top of the concrete flush with the top of the original ground and then the foundation wall came up from that. * * # there is hardly a door in the house that will close. * * * The west end of this house is down perhaps three inches or three and a half inches.” He also testified that the appellee, Rachel, in constructing the house had not met the F.H.A. minimum requirements with respect to the depth of the footing and the drainage underneath the house.

Appellee Rachel’s main defense is that he relied upon F.H.A. approval. He contended that he was not aware that the subsoil was of the expansive clay type which expanded and contracted according to wet or dry weather and, further, that it was not customary in local building construction to take sampling of the subsoil. Consequently, it is asserted that the assurances appellees gave concerning the foundation were not fraudulently made. Rachel acted as his own architect in preparing and designing the plans and specifications of the footing and foundation of the house he huilt and sold to appellants. In the specifications submitted to the F.H.A. by him the soil was described as “sandy clay”. He did not test the soil or have it tested and it was after the present controversy arose that he discovered the soil was “expansive clay”. He failed to dig a rectangular ditch and construct a form for the foundation footing as he had specified in the design submitted to the F.H.A. Representatives of the F.H.A. admitted they never inspected the footing. The testimony of appellants as to the positive assurances by the appellees regarding the foundation of the house and the negligent construction of the footing is undisputed. In fact, the sales agent, appellee Carlisle, did not testify. We think the evidence is clear and convincing that the appellants should prevail in the case at bar.

It is well settled that when a purchaser is fraudulently induced to purchase property by a vendor’s representations, the purchaser has an election of remedies, one of which is to rescind the contract and recover the amount paid by returning or offering to return the property to the seller. Sullenberger v. O’Lee, 209 Ark. 798, 192 S.W. 2d 543 and Kotz v. Rush, 218 Ark. 692, 238 S.W. 2d 634.

To rescind a contract based upon fraud, it is not necessary that actual fraud exist. It is well settled that representations are construed to be fraudulent when made by one who either knows the assurances to be false or else not knowing the verity asserts them to be true. Fausett & Co. v. Bullard, 217 Ark. 176, 229 S.W. 2d 490; Maurice v. Chaffin, 219 Ark. 273, 241 S.W. 2d 257. In C.J.S., Fraud, § 2, p. 211, constructive fraud is succinctly defined as “ a breach of legal or equitable duty which, irrespective of the moral guilt of the fraud feasor, the law declares fraudulent because of its tendency to deceive others * * * Neither actual dishonesty of purpose nor intent to deceive is an essential element of constructive fraud.” Citing Stewart v. Clark, 195 Ark. 943, 115 S.W. 2d 887 and Levinson v. Treadway, 190 Ark. 201, 78 S.W. 2d 59. [Emphasis added]

In the case at bar it is undisputed that the appellants relied, to their detriment, upon the statements and assurances made to them by the appellees and these statements proved to be untrue. Appellees ’ lack of knowledge of these material representations asserted by them to be true is no defense nor can liability be escaped by their good faith in making the representations.

We are also of the view that the appellee, Eachel, Avas negligent in the construction of the house with respect to the footing for the foundation. This is true from the undisputed evidence, including the fact that there Avas insufficient compliance with the minimum F.H.A. requirements as to the footing and drainage.

We have also held that if one of two innocent parties must suffer, the burden must be borne by the one Avho induced the loss. Snuffy Smith Motors, Inc. v. Universal C.I.T. Credit Corp., 236 Ark. 954, 370 S.W. 2d 808. It must be said that the appellees’ conduct and assurances induced the loss suffered by the appellants in the case at bar.

The decree is reversed and the cause remanded for the entry of a decree not inconsistent with this opinion.