author: George Rose Smith, Justice.

text:
    Wayne GRAHAM et al v. Dr Friedman SISCO d/b/a Sisco Clinic
    5-5130
    449 S. W. 2d 949
    Opinion delivered February 9, 1970
    [Rehearing denied March 9, 1970.]

      Gamer, Parker & Garner, for appellants.

      Putman, Davis ir Bassett, for appellee.
   George Rose Smith, Justice.

This is an action for medical malpractice brought by Wayne and Leah Ann Graham, as the parents and next friends of Steven Wayne Graham, a minor. The complaint alleges that the defendant, Dr. Sisco, in delivering Steven Wayne by Caesarean section, negligently cut the child’s face, leaving a permanent and disfiguring scar that runs from a point near his right ear to a point near his right eye.

The defendant moved for a summary judgment upon three separate grounds. The trial court rejected two of the grounds for summary judgment, but the court entered judgment for the defendant upon the third ground; namely, that counsel for the plaintiffs had stated that he did not intend to offer expert medical testimony upon the issue of liability and that without such expert testimony the plaintiffs could not make a prima facie case for the jury. The plaintiffs’ appeal brings up for review all three of the asserted grounds for summary judgment.

First, the court was right in holding that the cause of action was not barred by limitations, even though the operation was performed more than six years before the suit was filed. True, the two-year statute governing actions for malpractice does not contain a savings clause for minors. Ark. Stat. Ann. § 37-205 (Repl. 1962). But the general savings clause, § 37-226, which allows a minor to bring an action within three years after he reaches twenty-one, is applicable. Upon that point we held in Schuman v. Westbrook, 207 Ark. 495, 181 S. W. 2d (1944), that even though the original savings clause adopted in 1844 was limited to statutes of limitation then on the books, the scope of the savings clause was broadened in 1899 to apply to any cause of action regardless of whether it existed prior to 1844 or after-wards. Hence the minor’s cause of action in the case at hand was not barred when this suit was brought.

Secondly, the court was also right in holding, on motion for summary judgment, that the doctrine of res judicata is not necessarily a bar to any cause of action that the child’s father may assert in his own right. This claim arises from a judgment that was obtained in 1965 by Dr. Sisco’s clinic (apparently an individual proprietorship) against Mr. Graham. The judgment was for medical bills, including the fee for the Caesarean operation. It is now contended by the appellee that Graham’s failure to file a counterclaim in that case precludes him from asserting any cause of action in his own right against the appellee. See Shrieves v. Yarbrough, 20 Ark. 256, 247 S. W. 2d 193 (1952).

No such controversy is yet discernible in the case. The complaint does not assert any cause of action in favor of Mr. Graham individually, as distinguished from that being asserted on behalf of his son. It will be time to explore the issue now being argued by the appellee when it is clearly defined by the pleadings or by the proof. At this stage of the case there is plainly no basis for the entry of a summary judgment one way or the other.

Thirdly, the important question is whether the trial court was right in entering a summary judgment for the defendant on the ground that the allegations of the complaint cannot be proved without expert medical testimony. Those allegations, with reference to negligence, are two: That Dr. Sisco did not adequately examine the mother to determine the position of the child before performing the operation, and that the doctor cut the child by exerting too much pressure upon the scalpel, which we take to mean simply that he cut more deeply than he should have.

The necessity for the introduction of expert medical testimony in malpractice cases was exhaustively considered in Lanier v. Trammell, 207 Ark. 372, 180 S. W. 2d 818 (1944). There we held that expert testimony is not required when the asserted negligence lies within the comprehension of a jury of laymen, such as a surgeon’s failure to sterilize his instruments or to remove a sponge from the incision before closing it. On the other hand, when the applicable standard of care is not a matter of common knowledge the jury must have the assistance of expert witnesses in coming to a conclusion upon the issue of negligence.

In the case at bar we hold that the appellee was not entitled to a summary judgment. In reaching that decision we are influenced by two important considerations:

In the first place, one who moves for a summary judgment has the burden of showing “that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Ark. Stat. Ann. § 29-211 (Repl. 1962). Dr. Sisco’s motion was not accompanied by affidavits or other proof. Hence he asserts that, as a matter of law, the negligence charged to him is necessarily so far beyond the comprehension of an average juror that it cannot be proved except by a resort to expert testimony.

We are unwilling to make such a sweeping declaration, especially without proof. The complaint states, in substance, that Dr. Sisco cut so deeply that he injured the unborn child. It may be that a simple physiological demonstration of the position of the fetus within the womb and of the position of the womb within the mother’s body might enable the jurors. to decide the issues. It may be that an experienced surgical nurse, though not qualified as a medically knowledgeable expert, might establish a prima facie case for the plaintiffs on the basis of having observed a hundred similar operations. Many other possibilities come to mind. We do not imply, by mentioning those possibilities, either that such evidence would be admissible or that it would make a case for the jury. Our point is simply that the defendant, in moving for a summary judgment, had the burden of showing that no genuine issue of fact could possibly be made without expert testimony. We are unwilling to say that he met that burden merely by calling the trial court’s attention to the allegations of the complaint, with no proffer of supporting proof.

In the second place, an important point of policy is involved. It is a matter of commoii knowledge, often mentioned in judicial opinions and other authorities, that the plaintiff in a medical malpractice case is often unable to find a medical expert willing to testify against a fellow physician. The problem is fully discussed in Seidelson, Medical Malpractice Cases and the Reluctant Expert, 16 Catholic U. L. Rev. 158 (1966), and in a comment, Malpractice and Medical Testimony, 77 Harv. L. Rev. 333 (1963). It goes without saying that the plaintiff’s inability to obtain favorable expert testimony poses the possibility of greait miscarriages of justice. Certainly we should not unnecessarily worsen the plight of those having meritorious causes of action that should be redressed.

Yet here the defendant demands the entry of a summary judgment in his favor without even offering his own affidavit to exonerate himself from the charge of negligence. In this connection we have not overlooked the assertion in the appellee’s brief that Dr. Sisco’s discovery deposition was considered by the court below in ruling upon the motion for summary judgment. No such deposition, however, is in the record before us, even though the appellants designated the entire record for inclusion in the transcript. If the clerk or the reporter omitted a material part of the record, the appellee had a remedy under the statute if he thought the omitted matter to be essential to our consideration of the appeal. Ark. Stat. Ann. § 27-2129.1; see also Davis v. Ralston Purina Co., decided today, 248 Ark. 14, 449 S. W. 2d 709, Apparently the appellee did not consider the omitted matter to be essential, for in his brief in this court he waives any complaint about its omission.

It is quite evident that if the members of the medical profession, the legal profession, or any similar occupation, can prevent a malpractice case from even coming to trial simply by agreeing not to testify against one another, very few such cases will be heard in the future. Such a “conspiracy of silence,” as it is usually called, would allow the most grossly negligent practitioner to avoid even the simple duty of making his own explanation, under oath, of how the plaintiff happened to be injured. With the issues now before us by no means free from doubt, we are wholly unwilling to sanction a procedure fraught with such serious possibilities of injustice to future litigants.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Dorothy A. SPICER v. COLONIAL PENN LIFE INSURANCE COMPANY
    5-5156
    449 S. W. 2d 704
    Opinion delivered February 9, 1970

      Frierson, Walker ér Snellgrove, for appellant.

      Barrett, Wheatley, Smith 6- Deacon, for appellee.
   George Rose Smith, Justice.

The appellee, Colonial Penn Life, insured the life of the appellant’s husband, Jim E. Spicer, for $10,000, under a group policy issued to the Disabled American Veterans, of which Spicer was a member. Spicer died a few months later, after four monthly premiums had been paid. The insurer denied liability on the ground that Spicer did not personally sign the application for the policy. The only question here is whether the circuit court was right in sustaining that defense to this action upon the policy.

Colonial Penn Life agreed with the D. A. V. to issue the group coverage regardless of the health of the applicants if at least ten percent of the D. A. V. membership joined in the plan by July 1, 1968. Leaflets explaining the plan and containing an application for insurance were sent to the D. A. V. members. There was no personal solicitation nor any medical examination of the applicants.

Spicer applied for the insurance, truthfully stating in his application that he had multiple sclerosis. The application form contained a blank signature line, with this accompanying directive: “Sign Yoür Name Here.” At Spicer’s request, and in his presence and that of his mother-in-law, Spicer’s wife signed his name to the application, because Spicer’s eyesight had begun to fail. In due course the company mailed a certificate of coverage to Spicer. Neither the promotional leaflet nor the certificate, which were the only documents received by Spicer, contained any request for a personal signature, other than the directive that we have quoted.

In denying liability after Spicer’s death the company relied upon a provision in the master policy which fixed the effective date of coverage “if the Company has received the individual application personally completed and signed by the proposed Insured,” and the initial premium. It was stipulated that one of the company’s underwriters would have testified that in view of the liberal offer of coverage to members of the D. A. V., all of whom have some disability, the requirement that the application be personally completed and signed b? the applicant was felt to be of extreme importance, and that if it had been known that Spicer did not complete and sign the application the company in good faith would not have issued the certificate of insurance.

Upon the undisputed facts the insurer’s defense must fail. In the absence of a specific requirement that-one’s signature be written personally, as in the Statute of Wills, a signature made for a person in his presence and at his request is as effective as if written by the person himself. Chipman v. Perdue, 135 Ark. 559, 205 S. W. 892 (1918). Hence Mrs. Spicer’s action in signing her husband’s name satisfied the directive, “Sign Your Name Here.”

In common fairness, if the company intended to attach exceptional importance to a personal signature, it should have inserted unmistakable notice to that effect in the form of application. In a very similar case the combined promotional leaflet and application purported to describe the coverage of the policy, with its exceptions. We held that the company could not introduce new limitations in the master policy that would have reduced the coverage that the applicant had a right to expect. Lawrence v. Providential Life Ins. Co., 238 Ark. 981, 385 S. W. 2d 936 (1965). In like manner, inasmuch as the application in this case gave no indication to the applicant that something more than a legally sufficient signature was required, no such extraordinary requirment could validly be inserted in the master policy, without notice to the insured.

Reversed, with judgment to be entered here in favor of the appellant in the amount of the policy, plus a 12% statutory penalty and a $2,000 attorney’s fee.


text:
    Monroe DAVIS et al v. RALSTON PURINA CO. et al
    5-5180
    449 S. W. 2d 709
    Opinion delivered February 9, 1970

      Williams if Gardner, for appellants.

      Laws if Schulze, for appellees.
   George Rose Smith, Justice.

The appellees have filed a motion to dismiss this appeal, on the ground that the appellants have failed to bring up all the testimony designated by the appellees for inclusion in the record. In response to that motion the appellants assert that the appellees’ supplemental designation of the record was filed too late and that in any event an appellant’s failure to file the complete record is not in itself a basis for a dismissal of his appeal. We are disposing of the motion by means of an opinion, for some of the procedural points need clarification.

The chronological sequence of the procedural steps must be stated as a background to the present controversy:

April 21: Judgment entered below upon the jury’s verdict.
May 5: Appellants file what is in substance a motion for a new trial.
May 16: Appellants file notice of appeal from the judgment and designate the entire record as the record on appeal. Service had on opposing counsel.
June 26: Order filed denying the appellants’ motion for a new trial.
July 7: Appellants file, and serve upon opposing counsel by mail, a notice of appeal from the preceding order and a designation of only part of the testimony. No statement of points to be relied upon on appeal was filed by the appellants at any time.
July 18: Appellees file, and serve upon opposing counsel by mail, a designation of all the record not already designated by the appellants.
August 17: Trial court signs an order granting to the appellants an additional 45 days for filing their transcript with the clerk of the Supreme Court.
August 29: Court reporter certifies a transcription of the testimony designated by the appellants.
October 3: Circuit clerk certifies the partial record as designated by the appellants.
October 27: Foregoing partial record filed by the appellants with the clerk of the Supreme Court.

We consider first the appellants’ contention that the appellees’ supplemental designation of the record was filed too late, because it was filed and served on the eleventh day after counsel for. the appellants had filed and served their partial designation. Upon this point the appellants rely upon § 8 of Act 555 of 1953, which provides that a supplemental designation of the record is to be filed within ten days after the service and filing of the appellant’s partial designation. Ark. Stat. Ann. § 27-2127.2 (Repl. 1962).

We cannot sustain the appellants’ argument, for two reasons. First, the filing of a notice of appeal is jurisdictional, but irregularities in the other procedural steps under Act 555 are merely grounds for such action as this court deems appropriate. Section 27-2106.1. The one-day delay in this instance was obviously not prejudicial to the appellants, since the court reporter did not complete his transcription of the testimony until some ten days later.

Secondly, it is actually to the appellants’ advantage that the complete record be filed. The appellants committed what may have been a serious error in failing to file with their designation of the record a statement of the points to be relied upon on appeal, as required by § 27-2127.5, because that omission is a basis for a dismissal of the appeal unless we are able to say that the appellees have not been prejudiced. Jones v. Adcock, 233 Ark. 247, 343 S. W. 2d 779 (1961). But the appellant’s failure to file his statement of points becomes harmless error if the appellee nevertheless designates the entire record for inclusion in the transcript. Linxwiler v. El Dorado Sports Center, 233 Ark. 191, 343 S. W. 2d 411 (1961). Hence, in order to reach the merits of the appeal, we disallow the technical point being urged by the appellants.

There remains the appellees’ original motion that the appeal be dismissed, because the appellants failed to bring up all the testimony included within the appellees’ supplemental designation of the record. That omission alone is not a ground for dismissing an appeal. It frequently happens that a pleading, a deposition, an exhibit, or some other document is not included in the original record. Such omissions are routinely corrected either by stipulation of the parties or by action taken in the trial court or in this court under § 15 of Act 555, Ark. Stat. Ann. § 27-2129.1. It would be manifestly unjust for the appeal to be dismissed for such an omission, without giving the appellant an opportunity to supply the deficiency.

The appellees cite Ark. Farmers Assn. v. Towns, 252 Ark. 997, 342 S. W. 2d 83 (1961), but that case is readily distinguishable. There the appellant insisted that the appellee had unnecessarily designated the entire record and carried that insistence to the point of refusing to supply the complete record. In that situation we were compelled to dismiss the appeal, for the reasons stated in the opinion. By contrast, here the appellees have not yet requested that the omission be corrected; so the appellants are not in default.

The appellants, in their response to the motion to dismiss the appeal, suggest that the motion be treated as one to require the filing of the missing testimony, which the appellants offer to supply. It occurs to us, however, that perhaps the appellees no longer consider the entire record to be essential, because (a) they now have the appellants’ printed abstract and brief, which may have narrowed the issues on appeal, and (b) the appellants may no longer be in a position to appeal from the original judgment, under our holding in West v. Smith, 224 Ark. 651, 278 S. W. 2d 126 (1955). Hence we merely deny the motion to dismiss the appeal, with leave to the appellees to proceed further if they consider other parts of the record to be essential to this court’s disposition of the case on its merits.

Motion denied.


author: Lyle Brown, Justice.

text:
    Modene Robbie FARRIS v. STONE COUNTY SCHOOL DISTRICT No. 1
    5-5131
    450 S. W. 2d 279
    Opinion delivered February 9, 1970
    [Rehearing denied March 16, 1970.]

      N. J. Henley, for appellant.

      David Hodges, for appellee.
   Lyle Brown, Justice.

The appellant school teacher, Modene Farris, having been discharged before the expiration of her teaching contract, was unsuccessful in her suit to recover from the school district the balance which she would have ordinarily drawn under, the contract. On appeal she alleges that the trial court erred in refusing to grant her an instructed verdict against appellee, Stone County School District No. 1, she having been discharged by the principal who acted under authority given by two members of a five-member board.

Stone County School District No. 1 has three schools in its area, Rural Special, Timbo, and Fifty-six. The district has five school directors. During the period in which this litigation developed ttyo of the directors resided in the Rural • Special area, two others in Timbo, and one in Fifty-six. With respect to the employment and discharge of teachers, District No. 1 operated under an unusual custom. If a given school in the district needed a teacher, the director or directors who resided in that district would, along with the particular principal, recommend an applicant to the entire board and that applicant would be awarded a contract; if the services of a teacher, for example at Timbo, became unsatisfactory, the principal and the two directors residing in Timbo would discharge that teacher without referring the matter to the whole board.

Appellant’s contract with Rural Special, in proper form on its face, was for a ten months’ period, from November 1, 1967, through June 30, 1968, at a salary of $410 per month. She was discharged by oral notice from the principal on March 29. The important facts surrounding her discharge are undisputed and brief. On March 28 there was a function at the school gymnasium conducted by the senior class. The following day, it was reported to the principal of Rural Special that appellant was guilty of improper conduct toward a school patron. After a conference the same day with the two board members living in Rural Special, the principal called appellant in his office and notified her that she was discharged. It is undisputed that the act of discharge was the decision of the two board members, based on the principal’s recommendation; there was no consultation with any of the other board members. Another teacher took over appellant’s duties the following Monday. It is also clearly shown that the full board never considered the matter until May 31. On that date appellant appeared and asked the board to pay her for the time she had lost. The minutes show the response to have been that they would consider the matter and contact appellant later.

Appellant contends that the action of the two board members in ordering her discharge was invalid and we agree. We have many times held that contracts with teachers may not be binding on the district when they are executed other than in a duly convened meeting of the board. School District No. 56 v. Jackson, 110 Ark. 262, 161 S. W. 153 (1913). We think the same rule of solemnity should apply with respect to the cancellation of a teacher’s contract. The sound reason for the rule is stated in School Dist. No. 22 v. Castell, 105 Ark. 106, 150 S. W. 407 (1912):.

The manifest purpose of the school law in providing for a board consisting of three members is to obtain the advantage of the counsel of three di^ rectors at a meeting for transacting the school district’s business. The fact that the testimony in this case shows there had been a general understanding or agreement between the directors of this school district that two of them could act in the absence of the third and without prior notice to him of a meeting for such action would not meet this requirement of the statute. Such an agreement or custom would simply lead to the encouragement of a neglect of and failure upon the part of one of the directors to perform his duty, for which a penalty is prescribed by our statute.

Appellee argues that the evidence established jury questions as to (1) appellant’s misconduct, (2) whether appellant had a valid teacher’s license, and (3) whether the board did in fact meet and discharge appellant. We have carefully scrutinized the record and find it crystal clear that the full board never took any action with respect to appellant’s discharge. It is only by taking testimony out of context that a contrary conclusion can be reached. Appellant appeared before the board on May 31 and asked for wages lost. Inferentially, school had then been dismissed for the summer. After appellant departed, so one board member testified, the board authorized the members from Rural Special to decide whether to pay appellant. It is argued that the board’s action was a ratification of her discharge but that meager action was taken aftei the school session had expired and her teaching duties were ended. The county superintendent of schools testified that appellant was legally qualified to teach, testifying without objection that the records in his office and those in the office of the State Board of Education so reflected. There was no testimony to the contrary. Finally, with respect to alleged misconduct: The cause was not submitted to the jury on the theory that irrespective of the illegality of her discharge, appellant could not recover if she breached the contract. In fact there was no request for such a submission. Additionally, appellee did not plead breach of contract.

Appellant’s motion for an instructed verdict should have been granted and judgment entered for her April, May, and June salary. On remand the trial court is directed to enter judgment accordingly.

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Dr. R. Lawrence CASEBEER et ux v. BEACON REALTY, INC.
    5-5152
    449 S. W. 2d 701
    Opinion delivered February 9, 1970

      Kelley <£r Luffman, for appellants.

      Crouch, Blair, Cypert ir Waters, for appellee.
   John A. Fogleman, Justice.

Opal Irene Casebeer, wife of Dr. R. Lawrence Casebeer, both of whom are appellants here, is the owner of a lot in Pine Ridge Estates, a residential subdivision in Benton County, Arkansas. She purchased the lot from appellee in 1968. It appears from the pleadings and a stipulation in the record that appellee Beacon Realty, Inc., is the owner of all properties in the subdivision which will be traversed by a passageway proposed by Beacon through Block 8 connecting, inside the subdivision, with Pine Ridge Drive and Ridge Lane, two streets therein. Unless enjoined, Beacon will pave 18 feet of a 20-foot easement constituting this passageway for the use of vehicular traffic and other passage. All of the passageway will cross lands owned by appellee Beacon, arid none of it will cross or touch any property owned by appellants. This appeal comes from a decree of the chancery court dissolving a temporary restraining order previously granted on petition of appellants and denying their petition for a permanent injunction which would restrain appellee from proceeding with the proposed construction.

The property owned by appellants faces on Pine Ridge Drive. Block 3 is divided by White Oak Drive and all of the lots therein front either on White Oak Drive, which dead-ends in the subdivision, or bn Red-bud Terrace which connects at one end with a state highway and at the other with a county road. The rear line of appellants’ property is on the dividing line between Blocks 3 and 4. Nine lots in Block 3 and seven in Block 4 including Mrs. Casebeer’s property would abut upon this way. It was stipulated that appellee planned to designate this passageway as a private drive to be used only by individuals with lands abutting upon it.

At the time of the purchase of Lot 10 in Block 4 by Mrs. Casebeer, there was on record a plat of the subdivision, accepted by the county court, and protective covenants prepared by appellee. While appellants state four points to be relied upon for reversal, all of them relate to the construction or application of a single covenant. It read:

“LAND USE AND BUILDING TYPE: No lot shall be used except for residential purposes.”

Cases involving construction of, or enforcement of, restrictive covenants are sparse in Arkansas. By the great weight of authority,, restrictive covenants are to be strictly construed against limitations upon the free use of property, and all doubts resolved in favor of the unfettered use of the land. In other words, if there be any doubt, they are to be construed strictly against those seeking to enforce them and liberally in favor of freedom in use of the land. See 20 Am. Jur. 2d 755, Covenants, Conditions, etc., § 187 (1965); 26 C. J. S. 1094, 1098, Deeds, § 163a (1956); Annot., 175 A. L. R. 1191, 1193 (1948); Annot., 25 A. L. R. 2d 904, 905 (1952). This rule of construction is based upon the repugnance of restrictions on the use of land to trade, commerce, recognized business policy and common law rights to use lands for all lawful purposes. See 26 C. J. S. 1088, Deeds § 162(3) (1956). This doctrine was recognized by this court in Faust v. Little Rock School Dist., 224 Ark. 761, 276 S. W. 2d 59, wherein we said that where there is uncertainty in the language by which a grantor in a deed attempts to restrict the use of realty, freedom from restraint would be decreed. We have also held that when the language of the restrictive covenant is clear and unambiguous, the parties will be confined to the meaning of the language employed and that it is improper to inquire into the surrounding circumstances or the objects and purposes of the restriction for aid in its construction. Linder Corp. v. Pyeatt, 222 Ark. 949, 264 S. W. 2d 619.

Various results are reached in cases from other jurisdictions, most of which depend upon the particular language of the restrictive covenant and the particular use to which the right-of-way is to be put. We think that the most desirable result in a case of this sort was reached in the case of Callaham v. Arenson, 239 N. C. 619, 80 S. E. 2d 619 (1954). In that case it was held that the owner of four lots in a subdivision could locate a 50-foot street or roadway along the line between two of the lots without violating a restrictive covenant limiting the use of the property to residential purposes. The North Carolina Court said that ordinarily the opening and maintenance of a street or right-of-way for the better enjoyment of residential property as such does not violate a covenant restricting the property to residential purposes. We take this to be an appropriate rule for application in this case, where it is the intention and plan of the owner of the property over which the right-of-way will pass to designate it as a private drive to be used only by individuals with land abutting on the passageway and where there is no connection of the proposed right-of-way with any street or property outside the subdivision itself.

The application of this rule in this case is in harmony with other decisions of this court. In Wortsmith v. Matthews Co., 247 Ark. 732 (December 1, 1969), 447 S. W. 2d 342, we said that the replatting of lots so as to lay out an alley or private way across the back thereof was not prohibited by covenants set out in a bill of assurance restricting land use to specific types of buildings so that the usage would be in keeping with the highest class residential occupancy.

Appellants argue that this case should be controlled by a later North Carolina case, i. e., Long v. Branham, 271 N. C. 264, 156 S. E. 2d 235 (1967). There, it was held that the construction of a roadway within a subdivision connecting a street therein with one in an adjoining unrestricted subdivision violated a restrictive covenant against use of any lot for other than residential purposes. Appellants argue that the Long case makes the Callaham case applicable only to the facts and unique restrictions of that case, so that it is authority in that situation only. The principal distinction pointed out between the two cases by the North Carolina Court was that the streets involved in Callaham were all within the original subdivision itself. It was also pointed out that in the earlier case there was no plan to connect the new streets with those of any adjoining development. In any event, we feel that the rule stated in the Callaham case is appropriately applicable to the facts in this case. We also feel that the Long case is readily distinguishable from the case before us, because the construction of this passageway will not make it or any street in the subdivision a thoroughfare carrying traffic from another subdivision contrary to the objectives of the restrictive covenants, as would have, been the case in Long.

Under the facts in this case, we find that the construction of the proposed passageway entirely on property owned by appellee is not such a violation of the restrictive covenant in this case as would destroy the obvious intention that Pine Ridge Estates be purely a residential area.

The decree is affirmed.

Byrd, J., concurs.

      The stipulation recites that the passageway would not touch any property of appellants. From plats in the record, it appears that the Casebeers would abut the proposed passageway. We treat the matter as if the plat correctly reflects the situation.

      In the Long case, it was pointed out that it had even been held in other jurisdictions that lots, restricted to residential uses only, might be used to provide a street or passageway connecting with another subdivision or area or with a street outside the subdivision without violating such a covenant.


author: J. Fred Jones, Justice.

text:
    John A. McKNIGHT v. John H. BELLAMY, Jr.
    5-5189
    449 S. W. 2d 706
    Opinion delivered February 9, 1970

      Chapman & Wiley, for appellant.

      Darrell Hickman, for appellee.
   J. Fred Jones, Justice.

This is an appeal by John A. McKnight from a judgment of the White County Circuit Court in favor of John H. Bellamy, Jr. in a suit brought by Bellamy against McKnight for the return of the purchase price of a mare which McKnight sold and Bellamy purchased at an auction sale.

John A. McKnight, doing business as Meadowland Quarter Horse Ranch, breeds registered quarter horses and sells them at public auction. In advance of the auction, and in preparation therefor, the history and credentials, including blood lines and descriptions of the animals to be sold, are published in catalogue, or booklet form, and the booklets are distributed among prospective purchasers of quarter horses. At an auction sale held on November 27, 1965, one of the McKnight mares to be sold was “Holiday Dandy” and as to her, the booklet stated: “1966 Sells bred to Silver Light 14,-398 by Show Boy.” John H. Bellamy, Jr. farms and raises quarter horses. He attended the auction on November 27, 1965, for the purpose of purchasing a brood mare, and relying on the information contained in the booklet, he bid and paid the sum of $575 for the mare, “Holiday Dandy,” believing her to be in foal by the registered stallion, “Silver Light.”

The record reveals a custom in the horse auction business and one announced and followed by McKnight, that when a mare is sold under the representation that she had been bred, such representation conveys a reasonable assumption that the mare is pregnant or in foal. If it should develop following the sale, that a mare which has been sold as a bred mare is not actually in foal, then the purchaser has “return privileges.” He may return the mare to the seller’s ranch for the purpose of being rebred, and in such event, the purchaser is entitled to select any stallion on the seller’s ranch to which the mare may be rebred.

Two days after Bellamy purchased and paid for the mare, he learned that she was not in foal and on December 11, 1965, he returned her to McKnight’s ranch to be rebred. Bellamy heard nothing further from the McKnight ranch until on March 8, 1966, Bellamy was advised by McKnight’s ranch manager that the mare had died on March 3. Bellamy filed suit in the White County Circuit Court for damages in the loss of the mare because of McKnight’s negligence and for the return of the purchase price because of breach of warranty. The trial court, sitting as a jury, rendered judgment in favor of Bellamy for $575. On appeal to this court McKnight relies on the following points for reversal:

“The risk of loss shifted to the buyer at the time of the sale.
That there was no evidence that the appellee sustained any damages.”

Mr. McKnight contends that the Uniform Commercial Code sustains his oosition. He cites Ark. Stat. Ann. § 85-2-519 (Add. 1961 j as authority for his first point, and § ’85-2-714 (2) as authority for his second. We are of the opinion that neither section is an aid to Mr. McKnight’s position under the facts of this case. In citing § 85-2-519, Mr. McKnight quotes from § 85-2-510(1). This latter section was obviously intended and it reads as follows:

“Where a tender or delivery of goods so fails to conform to the contract as to give a right of rejection the risk of their loss remains on the seller until cure or acceptance.”

When this section of the Code is applied to the facts in this case, it is in aid of affirmance, rather than reversal, of the judgment of the trial court.

In his complaint, as amended, Bellamy alleged breach of warranty, and also McKnight’s negligence, as a cause of the mare’s death. There was substantial evidence from which the trial court could have rendered the judgment it did on either count. There is ample evidence that Bellamy purchased the mare for a brood mare and that McKnight’s agents represented the mare as being bred to Silver Light and led Bellamy to believe that the mare was in foal. The evidence is also clear that the mare was not in foal when she was purchased by Bellamy and that McKnight’s agents and employees knew she was not in foal at the time she was sold to Bellamy under misleading representations.

R. T. Nelson was an employee of McKnight in charge of the mares in pasture. Mr. Albritton was the ranch manager in charge of the entire operation, and Mr. Donald Gray was a trainer for McKnight and assisted in grooming and showing the animals at the auction sales. The only evidence that the mare purchased by Bellamy was ever bred to Silver Light, as represented in the booklets and at the sale, came from the testimony of R. T. Nelson who testified that the mare ran in the pasture with Silver Light and that he witnessed coverage on two occasions during the summer prior to the sale.

“Q. Do you recall the date, approximate date that you last saw Silver Light cover this mare?
A. Well, no, sir; it was in the summer time when he had them running in the pasture there together.”

Donald Gray knew more about the entire transaction than anyone else who testified, and he testified as follows:

“A. I told Mr. Albritton approximately three days before the sale that we had found this mare in heat, which would definitely indicate she was not bred or in foal.
Q. Now, what is the practice when you find that one of these mares has not ‘taken’ or is not in foal, or if you get evidence she was in heat before a sale?
A. The policy, if your catalogue is already printed, which in this case it was, this should have been brought to the attention of the prospective buyers in the ring before the mare was sold.
Q. In other words, when the horse is run through the ring, if you have knowledge to this effect you announce that condition is out?
A. Yes, sir.
Q. Was this done on that particular day?
A. No, sir, not on this mare."

There is no evidence that the mare was ever bred again after she was returned to the McKnight ranch on December 11, 1965, but there is substantial evidence from which the court could have found that it was through the negligence of McKnight’s agents and employees that the mare died on March 3 from sheer lack of proper veterinary medical attention. In this connection Mr. Gray testified:

“Q. Do you recall anything after this mare was sold, concerning this particular mare?
A. Well, in a very short time the mare reappeared at the ranch, was said not to be in foal, and was going to be rebred to one of the farm stallions; the mare was placed in a pasture with some of the company mares, and when I say company I mean Mr. McKnight’s mares, in the pasture with them; that was, oh, approximately sometime in December; now, through the month of December and into January this mare, she continued to fall off in weight, and the mare’s looks just weren’t what they should be; I reported this to Mr. Albritton, and about the 15th of February or 1st of March she was brought into the sick pen, mares that had various and sundry ailments, old mares that just weren’t doing as well as they should have been.
Q. Was it your responsibility to take care of the horse?
A. Just the mares in the pasture; I was required to see and report to Mr. Albritton every day.
Q. If there was something wrong with the mare you were to call it to their attention?
A. Yes, sir.
Q. Have you had quite a bit of experience in dealing with animals like this?
A. Yes, sir.
Q. When the condition of the horse came to your attention, in your opinion what should have been done?
A. In my opinion the mare should immediately have had a veterinarian’s attention.
Q. Did it get a veterinarian’s attention?
A. Not immediately.
Q. Did you call the condition of the mare to the attention of Mr. Albritton?
A. Yes, sir.
Q. Do you recall how long it was before the mare got a veterinarian’s attention?
A. Approximately two to three weeks.
Q. Do you recall what finally happened to the mare?
A. One morning we found her down; in other words, she was on the ground and unable to rise; then we, with the help of about four men, we got the mare up, put her in the stall, and then the veterinarian was summoned.
Q. And she died?
A. Yes, sir.”

Mr. McKnight testified as follows:

“Q- When you learn, Mr. McKnight, before an auction that a breeding has not taken, or that you learn positively one is not in foal, do you ordinarily announce that in the ring, or do you make the change in the advertisement?
A. Certainly if I had known the mare was not in foal I would have said something about it, yes.
Q. Isn’t this the custom in the ring when you know it?
A. I wouldn’t say it is the custom; yes, a man should do it if he knows it, certainly.
Q. Otherwise the people buy it believing it has been bred • to this particular horse?
A. That is correct. . .
# *
Q. ... [W]hen the representation was made that the mare had been bred to Silver Light, what does that mean?
A. Bred and supposedly in foal to the Silver Light Horse.
Q. It is not guaranteed?
A. To the extent that , they have the return privileges to breed the mare again the next season.” '

In viewing the evidence in the light most - favorable to the appellee, as we are required to do, there is substantial evidence in the record before us from which the court could have found a flagrant breach of an express warranty bordering on fraud in the sale of the mare in this case. The trial court would have been justified in finding that McKnight’s agents represented that the mare was bred with the full knowledge and intent that buyers would assume that the mare was in foal, when as a matter of fact the mare was not in foal and the seller knew she was not in foal when the representation was made but did not reveal this knowledge at the sale. As a matter of fact the only evidence that the mare had been bred at all was the testimony of Nelson as to such pasture occurrence in the summer prior to the sale in November 27, 1965, and in the light of Mr. Gray’s testimony as to the breeding cycles of open mares, it would appear incredible that McKnight’s ranch manager and agents would have believed the mare in foal at the time of her sale on November 27, 1965.

There is also substantial evidence from which the court could have found that McKnight’s delay in calling a veterinarian upon learning the mare was ill, constituted negligence which was a proximate cause of the mare’s death. In any event we conclude that there is substantial evidence to support the judgment of the trial court and that the judgment should be affirmed.

Affirmed.

      Apparently referring to § 85-2-510(1).


author: J. Fred Jones, Justice. Richard H. Wootton, Special Justice,

text:
    Robert HARVEY v. Lyda T. RIDGEWAY
    5-5223
    450 S. W. 2d 281
    Opinion delivered February 9, 1970
    [Rehearing denied March 16, 1970.]

      Lightle if Tedder, for appellant.

      Kaneaster Hodges, Jr., for appellee.
   J. Fred Jones, Justice.

The appellant, the Honorable Robert Harvey, is the duly elected state Senator for the Seventeenth Senatorial District of Arkansas, having been elected to that office in 1966 for a four year term. In 1968, and during the term for which he was elected to the Senate, Senator Harvey was also elected to serve as a delegate to the Constitutional Convention for the State of Arkansas. He was seated as a delegate by a unanimous vote of the Convention on May 27, 1969.

This taxpayer’s suit was brought by the appellee pursuant to Art. 16, § 13 of the Arkansas Constitution, which permits taxpayer’s suits to prevent illegal exactions. The appellee alleges that under Art. 5, § 10 of the Arkansas Constitution Senator Harvey is ineligible to serve as delegate to the Constitutional Convention and the appellee seeks to enjoin Senator Harvey from holding both offices.

Upon the foregoing facts, as stipulated, the chancellor found Senator Harvey ineligible to hold the office of state Senator and at the same time serve as a delegate to the Constitutional Convention. Senator Harvey has appealed and designates the points upon which he relies as follows:

“The trial court was without jurisdiction to hear and make a determination in this case.
The term ‘civil office under this state’ as used in Article 5, section 10 of the Arkansas Constitution does not include a delegate to the Constitutional Convention.
A Constitutional Convention and the election of delegates thereto are not governed by the provisions of the existing Constitution.
The order of the court is so ambiguous as to fail to apprise the appellant of what course of action can be taken without subjecting appellant to a citation for contempt.
Under any view taken, Senator Harvey is qualified and eligible to serve as a delegate to the Arkansas Constitutional Convention and at the same time to serve as a state Senator.”

This matter having reached this court a few days before the Constitutional Convention was tó enter upon its final thirty day session, we entered a per curiam opinion of January 10, 1970, reversing the chancellor and holding that Senator Harvey is eligible to serve as delegate to the Convention. We now set out our reasons for so holding.

As a delegate to the Convention Senator Harvey would be entitled to receive per diem and travel expenses as provided in Act 42 of the first extraordinary session of the legislature for 1968, and the courts do have jurisdiction to determine the issues raised by this case. We so held in Starnes v. Sadler, 237 Ark. 325, 372 S. W. 2d 585. See also Wells v. Bain, 75 Penn. Reports 39, where the Supreme Court of Pennsylvania, in dealing with a similar problem, said:

“The convention is not a co-ordinate branch of the government. It exercises no governmental power, but is a body raised by law, in aid of the popular desire to discuss and propose amendments, which have no governing force so long as they remain propositions. While it acts within the scope of its delegated powers, it is not amenable for its acts, but when it assumes to legislate, to repeal and displace existing institutions before they are displaced by the adoption of its propositions, it acts without authority, and the citizens injured thereby are entitled, under the declaration of rights, to an open court and to redress at our hands.”

We now come to the real issue of whether a member of the Arkansas State Legislature can legally serve as a delegate to a constitutional convention under Art. 5, § 10 of the present Constitution, which reads as follows:

“No Senator or Representative shall, during the term for which he shall have been elected, be appointed or elected to any civil office under this State.”

There is no question that Robert Harvey is a Senator and there is no question that he had been elected a delegate to the Constitutional Convention during the term for which he was elected Senator; so the actual question, is whether the position of delegate to the Constitutional Convention is a “civil office under this State,” within the meaning and prohibition as contemplated by the Constitution.

Legal precedent does not furnish a sound and clear answer to the precise question presented here, because there have been relatively few constitutional conventions, and therefore, few legal precedents concerning the qualifications of delegates to constitutional conventions. Both J. A. Jameson and R. S. Hoar in their respective books on Constitutional Conventions, point out that conventions for the purpose of drafting constitutions, are American institutions of recent origin. Jameson and Hoar differ as to the official status of a delegate to a constitutional convention. A provision of the Illinois Constitution provided that judges of certain courts should not be eligible to any other office, or public trust, of profit, during the term for which they were elected or for one year thereafter. A delegate to the Illinois Constitutional Convention had been a judge of a court within one year prior to his election to the Convention and his competitor contested his election on this ground. The judge contended that the words of the Constitution referred to the distribution of powers by the Constitution to the three regular branches of government, and that the Convention belonged to neither branch.

The difference of opinion between Jameson and Hoar is only important here in illustrating. the two opposing philosophies leading to opposite conclusions as stated by Hoar on pages 185-186 of his book, as follows:

“In behalf of the contestant, no great claim was made that a seat in the convention was a public office, but it was contended very strongly that it was certainly a position of public trust of the greatest magnitude. The convention, however, decided to permit the judge to retain his seat. Jame-son differs with this conclusion in the following language:
‘In my judgment, there can be but little doubt, that a member of a Convention is, in the enlarged and proper acceptation of the term, an ‘officer’ of the State. ... A Convention is a part of the apparatus by which a sovereign society does its work as a political organism. It is the sovereign, as organized for the purpose of renewing or repairing the governmental machinery. That same sovereign, as organized for the purpose of making laws, is the legislature; as organized for the purpose of applying or carrying into effect the laws, it is the judiciary or the executive. These successive forms into which the sovereign resolves itself, are but systems of organization having relation more or less directly to the government of the society. Together, they constitute the government.’ ”

Hoar then continues:

“The position of delegate to the Illinois convention was undoubtedly a position of public trust, and even a public office; but was not, if we regard such conventions as extraconstitutional, a position under the constitution. When a constitution refers to the incompatibility of offices, such provisions should be construed as relating solely to positions under the constitution itself and not to apply to any other positions unless clearly so stated.”

Hoar then continues, quoting from the Attorney General of the State of Illinois, as follows:

“Whatever may be said in relation to a member of the Legislature, he at least takes part in the execution of one of the powers of government, whereas a delegate in the convention, acts substantially as one of a committee of the people, whose power is restricted to making a report to the people.
The whole purpose of the convention is to take under consideration the propriety of revising or altering the present Constitution, and , to report back to the people such revision, alteration or amendment as it may propose. Its powers are similar to that of a committee, its work is entirely preliminary, and it has no power to do any act which of itself has any final effect.
It is my view that the word ‘office,’ as used in article VIII of the Amendments, refers to a position the incumbent of which exercises some power of government, and not to the position of a person selected to act in an advisory capacity in framing a scheme or change of government to be submitted to the people for adoption or rejection.”

In the Nebraska case of Baker v. Moorhead, 174 N. W. 430, a legislative act. provided for the election of delegates to a constitutional convention at a special election. The Constitution provided that all officers (except certain ones named) should be elected at the general election. In holding the act constitutional, the Supreme Court said:

“We are also-of opinion that members of the constitutional convention are not officers intended to be embraced in the provisions of section 13, supra. They are not constitutional officers in a strict sense; they are officers who create a Constitution, rather than officers who are created by the Constitution. Section 13, read in connection with section 14, which has ¡to do with terms of office, would indicate that those provisions have to do only with officers elected who have fixed terms of office, and should be elected at an election called with reference to the time of the beginning of their terms. The members- of the convention have no fixed term of office, and- by the Constitution itself the convention tnay be called at any time within three months after the election of its members.”

In 1915 the Constitution of Louisiana contained a provision as follows: “Ño person shall hold or exercise at the same. time, more than one office of trust or profit, except that of justice of the peace, or notary public.” In the case of State v. Doyle, 70 So. 322, four defendants were convicted, of stealing cattle and on appeal they contended that the trial court erred in overruling their motion to quash the jury panel because one of the jury commissioners, who helped select the panel, was a member of the state Constitutional Convention of 1913, and therefore an “outsider” in helping to draw the talesman jury list. In sustaining the trial court, the Louisiana Supreme Court said:

“The judge a quo was of the opinion that a member of a constitutional Convention ’ is in no proper sense an officer, that such a position is fleeting and casual, and the member does not exercise his functions continuously and as a -part of the regular and permanént administration of the government. The judge cited- Sheboygan v. Parker, 3 Wall. 93, 18 L. Ed. 33.
* # #
The first ruling is supported by the historical fact that state officials, high and low, have been delegates to constitutional conventions, without a suggestion from any quarter, that they had,, thereby, vacated their -respective offices.
Act No. 13 of 1912; to enforce the prohibition of article 170 of the Constitution against dual office holding, does not mention delegates to constitutional conventions in the enumeration of the different offices within the purview of said statute.
It has been held that this article does not apply to municipal officers, but exclusively to state officers. State v. Phenix, 134 La. 329, 64 South. 129. Conventions are not mentioned in our Constitution, and its provisions have no reference or relation to delegates of the people elected for the purpose of framing organic laws for the body politic.
Such delegates are agents of the people, chosen to represent their constituents for a particular public purpose. They have never been styled officers, and hold no office in the sense of the Constitution. A constitutional convention is not a co-ordinate branch of the government. It exercises no governmental power, but is a body raised by law, in aid of the popular desire to discuss and propose amendments, which have no governing force as long as they remain propositions. See 6 R.C.L. 18.”

In the Oklahoma case of Frantz v. Autry, 91 P. 193, an action was instituted to enjoin the governor and president of the Constitutional Convention from issuing and publishing a proclamation submitting certain items to the electorate in a proposed constitution for Oklahoma. In that case the Oklahoma Supreme Court set out the contention and its decision as follows:

“It was contended by the plaintiff in the court below, defendant in error here, that the power and authority of the constitutional convention is derived solely from the powers granted in the enabling act, and that every power granted to the convention must be found and expressed therein, except such implied powers as may be necessary to carry into effect the express grant of power; that the power granted by the enabling act embraces no legislative grant, but confers only the power of a committee to adopt and propose fundamental propositions which upon ratification may become the fundamental law of the state. And this was the view of the trial court, and it is earnestly urged in this court by counsel for defendant in error as the true doctrine. In our opinion, this contention is clearly untenable, and cannot be sustained by the authorities. In a territory, the source of all power is Congress. But in the formation of a Constitution and state government the power emanates from the people. The delegates to the convention were not the agents or representatives of Congress, but they were the immediate agents and representatives of the people of the two territories. They derived their power and authority from the people in their sovereign capacity. And this is in harmony with the principles of the Declaration of Independence, which declares that ‘governments are instituted among men, deriving their just powers from the consent of the governed,’ and is in keeping with the doctrine announced by Lincoln when he uttered the immortal words, that this is ‘a government of the people, by the people, and for the people.’”.

The Kentucky case of Chenault v. Carter, 332 S. W. 2d 623, had to do with the calling of a special election to take the sense of the people of Kentucky on the question of holding a constitutional convention, and although that case did not involve the qualifications of delegates to the convention, the court said:

“The choice of whether a constitutional convention shall be called rests entirely with the electorate. The discretion of the legislature is at an end when the matter is finally proposed. The formal call issued by the General Assembly following a favorable vote by the people is but a ministerial duty enjoined upon it by the Constitution in the execution of a public mandate. Inhering in that mandate are the terms and conditions of the initial proposal. The delegates to the convention are the agents not of the legislature, but of the people themselves. As a principal may limit the authority of his agent, so may the sovereign people of this state limit the authority of their delegates. This they may do by accepting and approving, through a constitutional majority as set forth in § 258, a proposal for a limited constitutional convention. Gaines v. O'Connell, 305 Ky. 397, 204 S. W. 2d 425; Staples v. Gilmer, 183 Va. 613, 33 S. E. 2d 49, 158 A. L. R. 495; Cummings v. Beeler, 189 Tenn. 151, 223 S. W. 2d 913.”

In Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 229 A. 2d 388, a declaratory judgment action was instituted for a determination of the correct answer to whether a delegate to a proposed constitutional convention would be a holder of office within the meaning of declaration of rights provisions, and certain other sections, of the Constitution of Maryland then in force. The circuit court held that such delegate would not be the holder of an office within the Constitutional provisions and in affirming the circuit court on appeal, the Supreme Court said:

“Article 33 of the Declaration of Rights states that no judge shall hold any other office, ‘civil or military, or political trust, or employment of any kind, whatsoever, under the Constitution or Laws of this State * * #.’ Article 35 follows to provide that ‘no person shall hold, at the same time, more than one office of profit, created by the Constitution or Laws of this State * * Section 6 of Art. 1 of the Constitution recites that ‘[ejvery person elected, or appointed, to any office of profit or trust, under this Constitution, or under the Laws, made pursuant thereto,’ shall take a prescribed oath of office under which he swears that he will not receive the profits ‘of any other office’ during the term of his acting in the office for which he is qualifying. Section 11 of Art. Ill declares ineligible as a senator or a delegate all ministers and all other persons holding ‘any civil office or profit, or trust, under this State' (except justices of the peace). Section 17 of Art. Ill prohibits a member of the General Assembly during the term for which he was elected, from serving in ‘any office, which shall have been created, or the salary, or profits of which shall have been increased, during such term.’
# # *
The people of Maryland from 1776 until today have shown that they concur in the generally prevailing view, which we believe to be sound, that the people retain the sovereign power to rewrite their constitution, that the legislative processes which lead, to and assist in the exercise of that power are not a part of the previously bindingly delegated powers conferred on the Legislature by the people, that those who are selected to sit in convention and do the rewriting of the Constitution are selected directly by the people and therefore are the direct agents of the people, rather than agents of the organized government, which is the State. The people also have shown that in their opinion, which we share, the offices which are rationed by the constitution one to a customer or the office which may not be held by one who helped create the office are offices which are established by the Constitution or by a law which implements or aids the execution of executive, legislative or judicial functions created by the Constitution, and that an agent of the people who helps create a new constitution does not hold an office within that category. These prior views and actions of the people are entitled to great respect and have aided us greatly in reaching the conclusion that a delegate is not a constitutional officer.
-O. .W. -W. ^ Tr TT
. . . The idea of continuity contemplated by the ordinary test, for an office is lacking in the case of a delegate to a convention.
Most importantly, a delegate does not exercise any part of the sovereign power of the State — that is, any part of the sovereignty delegated by the people through their constitution to the executive, legislative or judicial branches of the government, even though, we may assume, he does exercise some part of the sovereign power retained by the people and by them committed to him to help create a new constitution.”

Returning now to the case at bar, we do not consider Senator Harvey’s qualifications to serve as state Senator as being an issue in this case. We are of the opinion that when Senator Harvey was elected as a delegate to the Constitutional Convention, he was not appointed or elected to any civil office under this State, within the meaning and prohibition of Art. 5, § 10, supra. We are of the opinion that the phrase “any civil office under this State” refers to an office created by civil law within one of the only three branches of government provided for under the present Constitution of this state.

The people of Arkansas saw fit to set up and limit the powers of government to three separate departments, but they did not see fit to trust either department with the power to change the Constitution. Article 4, § 1 of the Constitution provides:

“The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, tó wit: Those which are legislative to one, those which are executive to another, and those which are judicial to another.”

Unlike the constitutions of some of the states, the present Constitution of Arkansas does not provide a method for obtaining a new constitution, and we may reasonably assume that the people intended it that way. Article 2, § 1 of the Constitution explains why the Constitution is silent as to the method of changing it, and it does so in majestic words of tremendous import and meaning, as follows:

“All political power is inherent in the people and government is instituted for their protection, security and benefit; and they have the right to alter, reform or abolish the same in such manner as they may think proper.”

We are unable to conceive of any person being appointed or elected to “any civil office under this State” unless such civil office would be under one of the three divisions of the powers of the government of the State of Arkansas as specifically divided and limited in Art. 4, § 1, supra. We are of the opinion that Senator Harvey’s position as delegate to the Constitutional Convention is not derived from the Constitution at all. It is derived directly from that power “inherent in the people” as simply announced in Art. 2, § 1, of. the state Constitution, supra, and in the manner the people thought proper as expressed in Act 42 of the Acts of the General Assembly for 1969. This act did not create a “civil office under this State,” as referred to in Art. 5, § 10. Act 42 was simply “an Act setting up the procedure to be followed in calling a Constitutional Convention. . .” and was so stated in its preamble by the legislature.

Delegate is defined in Black’s Law Dictionary as:

“A person who is delegated or commissioned to act in the stead of another; a person to whom affairs are committed by another; an attorney.
A person elected or appointed to be a member of a representative assembly. Usually spoken of one sent to a special or occasional assembly or convention.”

We are of the view that the appellant has not been appointed or elected to a civil office under this State (other than that of state Senator). He has been selected as a delegate, or agent, of the people of his district for the purpose of acting in their stead in the exercise of their inherent! power in working out the substance, form and content of a constitution to be submitted to all the people of Arkansas for their approval or rejection.

It is obvious that Art. 5, § 10 of the present Constitution was designed and intended as a protection against the possible conflicts in interests a member of the legislature might have as an elected official with the power, influence and authority to create positions and offices, and the interest he might have as a private citizen who would desire to hold such civil office by appointment or election.

The people impose considerable confidence in their legislative Representatives and Senators. Legislators bear the full responsibility of enacting laws in the carrying out of the functions of the legislative branch of the government as delegated by the people under the Constitution. Representatives and Senators cannot delegate their legislative powers and duties — they cannot even refer a legislative act to a vote of the people. That power is reserved by the people in the form of referendum. The legislature is, of course, given the full authority to repeal any law it is authorized to enact, but the people of Arkansas risk their constitutional changes in the hands of no one. They have retained their inherent power when it comes to changing their constitution, and have reserved the right and power to make such changes in such manner as they think proper. The people of Arkansas have thought it proper to call a Constitutional Convention composed of delegates they have selected to represent them in preparing such constitutional changes as they, the people, may desire to consider. Even if the position of delegate to a Constitutional Convention were a "civil office under this State,” we are unable to see where such conflict could arise between a member of the legislature and a delegate to a constitutional convention, as Art. 5, § 10 is designed to prevent.

We conclude that a delegate to a constitutional convention is not a “civil office under this State” within the meaning and prohibition expressed in Art. 5, § 10 of the Constitution of 1874, and we so hold. The judgment of the trial court is reversed and this cause dismissed.

Harris, C. J., George Rose Smith, J., and Wootton, S. J., dissent.

Fogleman, J., disqualified and. not participating.

Richard H. Wootton, Special Justice,

dissenting. I cannot agree with the majority opinion’s conclusion that a delegate to the Constitutional Convention is not a “civil office under this State” within the meaning and prohibition expressed in Article 5, Section 10, of the Constitution of 1874. To the contrary, I believe the better reasoning is that a Constitutional Convention delegate elected pursuant to Act 42 holds a civil office under this State within the Constitutional prohibition.

The Arkansas Constitution makes no specific reference to constitutional conventions. However, even in the absence of such a reference it is generally recognized and accepted that the legislature has the power to call a Constitutional Convention. 16 Am. Jur. 2d, Const. Law, Section 30. That right not being denied to the General Assembly by the Arkansas Constitution of 1874, it must be held to exist. Webb v. State, 176 Ark. 722, 3 S. W. 2d 1000.

Both the legislature and the convention must act under the Constitution of 1874. The legislature cannot create a body with powers or authority beyond the Constitution; it cannot create a super-body with powers or rights beyond the very Constitution that created those powers and rights. A Constitutional Convention, once assembled, may propose for popular approval any form of Constitution it may desire, subject only to superior law such as the United States Constitution. The form and mechanics of arriving at the end result, however, are procedural matters that must be conducted within the framework of our present Constitution. To hold otherwise would be to permit the legislature to amend the present Constitution. That it cannot do. The legislature in passing Acts 3 and 42, and the electorate in approving the call for a Constitutional Convention and choosing delegates thereto, did not purport to and did not in fact amend the Constitution of 1874.

Act 42 was unquestionably enacted pursuant to the authority granted by the Constitution of 1874. For instance, it had to have an enacting clause and had to be approved by a majority of each house, all as required by Constitutional mandate. It clearly was an act of the State. Being creatures of the State and of the Constitution of 1874, Acts 3 and 42, and the Constitutional Convention called thereunder, could not rise higher than the Constitution of 1874 nor possess authority beyond its provisions. Hence Article 5, Section 10, with its prohibition against legislators’ being appointed or elected to any civil office under the State, was part of the overlying Constitutional blanket.^ If, therefore, a Constitutional delegate holds a civil office, a member of the General Assembly is ineligible to serve as a delegate.

A Constitutional delegate must be either an officer or an employee. An employee holds his position by reason of a contractual relationship. A public officer exercises some of the State’s sovereign power, has statutory duties rather than contractual ones, and receives his position by appointment or election. The concept includes such ideas as a definite term, payment for services, and important duties. See Maddox v. State, 220 Ark. 762, 249 S. W. 2d 972; Lucas v. Futrall, 84 Ark. 540, 106 S. W. 667; and Vincenheller v. Reagan, 69 Ark. 460, 64 S. W. 278.

Clearly a delegate to the Constitutional Convention is not an employee. On the contrary, he is elected, has a definite term (even though relatively short), must perform the statutory duties provided by an act, and is exerfcising some of the State’s sovereign power in helping to draft a Constitution to affect all the citizens of Arkansas. The General Assembly chose its language carefully and correctly in Section 2 of Act 42 when it referred to “the office” of delegate to the Constitutional Convention.

In a substantially similar case, the Supreme Court of Michigan held that a legislator was not eligible to serve as a delegate to a Constitutional Convention. Fyfe. v. Mosher, 149 Mich. 349, 112 N. W. 725. Said the court:

“If the framers of the Constitution meant to exclude members of the Legislature from eligibility to other state offices, no language could be more comprehensive than that of ‘any other state authority.’ These are state officers elected by state authority. They receive a civil appointment from state authority. There are other provisions of the Constitution which show the intention to prevent members of the Legislature from holding other civil positions during their term of office. Section 6, art. 4, provides: ‘No person holding any office under the United States (or this state) or any county office except notaries public, officers of the militia and officers elected by townships, shall be eligible to or have a seat in either house of the Legislature, and all votes given for any such person shall be void.’ The purpose of these provisions is ‘to preserve a pure public policy,’ or as we said in Ellis v. Lennon, 86 Mich. 468, 49 N. W. 308, speaking through Justice McGrath, ‘to prevent officers from using their official position in the creation of offices for themselves or for the appointment of themselves to place.’
“We are all of the opinion that delegates to the constitutional convention came within the term ‘civil appointment’ as used in this provision of the Constitution, that they receive their appointment from state authority, and therefore that members of the Legislature which enacted the law and thus provided for the offices, fixing compensation, etc., are ineligible as delegates. They are both within the spirit and letter of the law.”

I cannot agree with the contrary view taken in Board of Supervisors of Elections v. Attorney General, 246 Md. 417, 229 A. 2d 388, and similar cases cited in the majority opinion.

The purpose of Article 5, Section 10, is, of course, to prevent any conflict between the legislator’s public duty and his personal interest. This opinion should not be read to imply in the slightest degree that the Appellant would place his own interest above that of the public; but that possibility would exist, now and in the future, if legislators were permitted to serve as delegates. Our Constitution seeks to prevent that possibility, and it is the duty of the Court to uphold the Constitution.

I would agree with the majority opinion’s conclusion that this Court does have jurisdiction to determine the issues raised by this case.

For the reasons cited above, I would enjoin the Appellant from serving as a delegate to the Arkansas Constitutional Convention.

Harris, C. J. and George Rose Smith, J., join in this dissent.


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

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Carl SCHMOLL
    5-5070
    449 S. W. 2d 938
    Opinion delivered February 9, 1970

      Thomas Keys and Virginia Tackett, for appellant.

      Williams Gardner, for appellees.
   Conley Byrd, Justice.

This litigation was formerly before us in Arkansas State Highway Commission v. Schmoll, 245 Ark. 21, 430 S. W. 2d 852 (1968). Following the reversal, the matter was again submitted to a jury which awarded a judgment of $52,000. For reversal of the $52,000 judgment, appellant Arkansas State Highway Commission contends that the verdict is excessive and that there is no substantial evidence to support it.

The record shows that Mr. Schmoll’s ownership consists of 107.67 acres being SWM of SW‘i of Sec. 18, the NW% of the NWM of Sec. 19, and a portion of the NEM of the NWH of Sec. 19, all in T. 7 N., R. 18 W. The property is bordered on the south by Highway 64. The Highway Department is here taking 84.52 acres, for construction of 1-40 and the balance for a scenic drive. The southeastern corner of this property lies some 200 feet west of the city limits of Atkins, Arkansas. The topography of the property is such that it commences at the foot of and rises to the top of Crow Mountain.

For valuation purposes appellee introduced himself and Jackson Ross, a real estate expert. Mr. Schmoll testified that his property had a before value of $135,110 and an after value of $41,725. In arriving at his before value he used $750 per acre for the north 40 and $1,500 per acre for the south 63.18 acres. On cross-examination he testified that the attorney for the Highway Department was correct in assuming that he was saying that property similar to his upper 40 acres was selling on the market in January 1966 for $750 an acre. At other times Mr. Schmoll stated that he did not use compar-: able sales but just used his opinion of what it was worth. However he stated that the Fengler Estate, just east of the lower portion of his property, sold some lots, 150 by 150, for $1,500 per lot. According to his testimony all such lots were on existing roads. Another was Roy Kindrick’s sale of 2 acres across Highway 64 for $3,000. A third sale was the Orlando Pryor land —a 5 acre sale for $5,000 on the highway near the Highway 64 frontage of the subject property. All of Mr. Schmoll’s testimony was designed to show that the highest and best use of his property was for residential building sites.

Mr. Jackson Ross, an appraiser, testified to a before value of $113,916 and an after value of $33,000 resulting in damages of $80,916. He stated that he made a study of land values in or near Atkins in January 1966, and that his study showed that near the subject property there were “several lots that had sold off north of 64 highway at that time.” He readily admitted that the only road frontage on Mr. Schmoll’s property is Highway 64 and that there are no roads to the back of Mr. Schmoll’s property. He further admitted that all of the comparable sales he considered were on a road of some kind. The comparable sales considered by Mr. Ross were as follows:

1. Emil Fengler et ux, to Paul and Lois Raney, a 150 ft. by 150 ft. parcel for $750.00, which he described as roughly 1/4 of an acre;
2. Fengler to Hurshel and Ruby Miller, a 150 ft. by 218 ft. parcel for $800.00;
3. Fengler to Robert Raney, 150 by 150 ft. for $750.00;
4. Fengler to Dovie Miller, a 190 ft. by 195 ft. parcel for $800.00, which he described as “a fraction over half an acre;”
5. Joe Stephenson to Melvin Fuller, a 150 ft. by 200 ft. parcel for $1,000.00, described as being just off Highway 105; and
6. Pryor Estate to Pratt, 5.7 acres for $5,000.00 which he described as being bought for the purpose of putting in a market (this was described as being comparable to Mr. Schmoll’s land adjacent to Highway 64).

Throughout his testimony Mr. Ross referred to a parcel 150 ft. by 150 ft. as approximately a quarter of an acre.

Mr. Walker Watson, an appraiser for the Highway Department, arrived at a before value of $27,750 and an after value of $19,750 for total damages of $8,000. Mr. A. R. Jordan, a Russellville real estate broker and appraiser, arrived at a before value of $30,040 and an after value of $21,915 for total damages of $8,125. Mr. Watson used the following comparable sales:

1. A July 1965 sale from Nottenkamper to Kyle, 12 acres for $13,000 — he allocated $7,500 to improvements, leaving $5,500.00 for 12 acres of land at $460 per acre;
2. A 1962 sale from Duval to McElroy 500 ft. west of Schmoll’s property in which a tract with 104 ft. frontage on Highway 64 by 400 ft. deep sold for $500;
3. A 1962 sale from Gibson to Willcutt of a 20 acre tract that sold for $6,000 — he allocated $3,-000 to improvements and $3,000 to land, arriving at a per acre value of $150; and
4. A 1964 sale lb miles west of Mr. Schmoll’s property where a 44 acre tract sold for $7,000 or $175 per acre (at the time of trial 3 houses had been built on the 44 acres.)

Mr. Jordan used the following comparable sales:

1. A sale from Kinslow to Hudson which compared to the back wooded part of Mr. Schmoll’s property — a 110 acre tract at $6,000 or . $55 per acre;
2. A sale from Bowden to Cole, a 44 acre tract at $175 per acre which he considered comparable to Mr. Schmoll’s open lands;
3. The sale from Duval to McElroy used in Walker’s appraisal; and
4. Nottenkamper to Kyle, a 12 acre sale used by by Mr. Walker — however Mr. Jordan allocated $6,500 to improvements and $6,500 to land for a per acre value of $541.

In Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S. W. 2d 86 (1958), we pointed out the speculative nature of evidence which uses the sale price of lots for comparable sales in arriving at the valuation of large tracts of raw ground in this language:

“The reason for the rule above set out is well demonstrated in the case under consideration. While some of appellees’ witnesses explained that, in comparing the value of subject land and lots with other subdivisions of Little Rock and particularly with Lakewood Addition, they had taken into consideration the location and the necessity of supplying paved streets, water and sewerage, etc., yet that fact in no way eliminates the element of chance and speculation. On the other hand, such explanation merely emphasizes that element. Any attempt to determine the cost of such improvements would have entailed the use of time and technical knowledge beyond the scope of practicability and reason. In addition to the above, many more speculative matters would arise for consideration. For example: How much other land in the vicinity is available for subdivisions; What will be the future demand for additional building sites; How long will it be before the subject land is made ready for the erection of dwellings; How fast will the lots be sold, and how much will be the finance charges, and; What will be the cost in real estate commissions for selling the property, and what will be the expense of numerous other items that could be mentioned?”

The present case is a classic example of the speculative nature of such testimony. Here the proof shows that the property commences at the foot of Crow Mountain and slopes up to or near the top of Crow Mountain. Both Schmoll and his witness Ross relied entiitely upon plot sales for individual building sites, all located along existing roadways and none more than a quarter mile north of Highway 64. Yet the record shows that Schmoll’s property extends one-half mile north of Highway 64.

While the sales of the individual building plots were properly admitted into evidence for comparison to Mr. Schmoll’s property that is similarly situated, it is obvious that such sales are speculative when used with respect to property some distance from a roadway. For instance, the record here shows that Emil Fengler from 1961 to 1965 only sold 5 parcels for building sites. Notwithstanding this, Mr. Ross insisted that there was a ready market for every building site into which Mr. Schmoll’s property could be subdivided. Also both Schmoll and Ross assigned the back 40 a valuation equal to one-half of the value of the front 40, while admitting that all of their parcel sales were south of the back 40 and that the back 40 was further up the incline toward the top of Crow Mountain.

Therefore, it appears to us that appellee is using plot sales (comparable to the sales of finished lots) along existing roadways with other improvements and comparing the price paid for the acreage involved in those sales with his raw acreage for purposes of determining its value without taking into consideration the many variables such as demand; the cost of engineers; the: installation of improvements, such as roads, water and sewer or septic tanks; and the numerous man hours and financing charges that go into the development of a residential area.

For the reasons stated we find that there is no substantial evidence in the record to sustain a judgment for $52,000.

Reversed and remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. I respectfully dissent because I think the court has actually weighed the evidence in this case and, after comparing the testimony of value witnesses presented by appellant with that of value witnesses for appellee, decided that the appellee’s evidence failed to provide substantial support for the jury verdict, or that the sales relied upon by appellant’s witnesses were more comparable than those relied upon by appellee. I do not see how it can be said that the record on this second trial and the arguments advanced by appellant here require a second reversal of this case.

In the first place the court’s opinion is based, in part, upon a premise not really argued by appellant. Here, I refer to the treatment of the Schmoll testimony. The argument as to the deficiency in the Schmoll testimony is epitomized in the following paragraph from appellant’s brief:

“Mr. Schmoll, valuing his back forty at $750 per acre and the rest of it at $1,500 per acre, mentioned sales, but said positively he didn’t value his land based upon those sales (R. 103). He admitted on redirect that he knew of another sale, but on cross examination said he didn’t know if he did or did not take it into consideration, because he didn’t figure it had the acreage (R. 109). Appellee himself, eliminates his testimony from consideration.”

Thus, appellant relied upon the landowner’s lack of reliance upon comparable sales to eliminate his testimony from consideration. Of course, this is not the test of substantiality of a landowner’s testimony. Schmoll had inherited part of the land and had bought the interest of his brothers and sisters in 1946. He was familiar with all of the land, its characteristics, the portions of it which were cleared and the improvements on it. He knew his tract was within 200 feet of the city limits of Atkins, and within 1/4 mile of the city water tank, that gas, lights and a water supply with adequate pressure were available to the property and that there had been development of property just east of his. He mentioned no sale on direct examination. On cross-examination he stated that he did not base his testimony on any sales.

Since Schmoll did not rely upon comparable sales, it was up to appellant to otherwise demonstrate upon cross-examination that there was no reasonable basis whatever for his testimony. Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201, Arkansas State Highway Commission v. Carter, 247 Ark. 272, 445 S. W. 2d 100; Arkansas State Highway Commission v. Stobaugh, 247 Ark. 231, 445 S. W. 2d 511. His knowledge or lack of knowledge of market values of comparable lands went only to the weight to be given to his testimony. Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1; Arkansas State Highway Commission v. Drennan, 241 Ark. 94, 406 S. W. 2d 327; Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S. W. 2d 478. See also Arkansas Highway Commission v. Carter, supra.

There may have been some inconsistency in our decisions on this point but throughout all of them, it seems that the landowner’s opinion as to value constitutes substantial evidence if it is based upon his familiarity with the land and is not an arbitrary figure plucked from the air with no relation to any fact in the record.

In Arkansas State Highway Commission v. Covert, 232 Ark. 463, 338 S. W. 2d 196, the landowner’s testimony, based upon his statements as to the size of his lot and the size and nature of the improvements thereon, was held to be substantial, even though, he gave no basis for his value of $17,500 stated in response to a query as to what he would sell the land for if he were willing to sell and someone were willing to buy.

In Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1, a landowner’s testimony and refusal to strike it because he gave no basis for his evaluations were held proper because of the rule that a landowner is deemed qualified by reason of his relationship as owner to give estimates of the value of what he owns, regardless of his knowledge of property values. It was held that there was no merit in an attack on the substantiality of the evidence.

In Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S. W. 2d 381, where the question was whether there was substantial evidence to support the verdict, we recalled that this court had many times held that the owner of real property was qualified to express an opinion as to its value when his familiarity with the property was shown.

In Arkansas State Highway Commission v. Maus, 245 Ark. 357, 432 S. W. 2d 478, the landowner’s testimony based upon his familiarity with the land as owner and lifetime resident was held to be substantial.

In Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S. W. 2d 563, we held the landowner’s testimony substantial because of his demonstrated familiarity with the land as owner and lifetime resident.

Whether a witness has such knowledge of the facts as to make his opinion of any value is a question largely within the discretion of the trial judge. Arkansas Power and Light Company v. Morris, 221 Ark. 576, 254 S. W. 2d 684.

Of course, the testimony of a landowner may not be substantial where: (1) there is nothing to indicate that it takes into consideration the potentiality of the land for the purpose for which it has value or evidence to show that potentiality, Arkansas State Highway Commission v. Byars, 221 Ark. 845, 256 S. W. 2d 738; (2) the landowner not only has no knowledge of land values, but does not reside on the land, has little familiarity with it and bases his opinion as to value upon sentimental desires and the desires of a deceased spouse, Arkansas State Highway Commission v. Darr, 246 Ark. 203, 437 S. W. 2d 463; or (3) the value stated is an arbitrary figure that has no relation whatever to any fact in the record, Arkansas State Highway Commission v. Stanley, 234 Ark. 428, 353 S. W. 2d 173.

I submit that the owner’s testimony was substantial.

The qualifications of Jackson Ross as an expert on real estate values is not questioned. He valued 60 acres of the land at $1,200 per acre and 44.86 acres at $600. He testified that there had not been much growth in the city limits of Atkins, but that there had been rapid growth to the north, south and west. The Paul Raney property was 1/4 mile north of Highway 64 and about 200 feet from the Schmoll land. It was purchased in 1964. The Pryor-Pratt sale was not more than a quarter of a mile away. Ross did not appraise the Schmoll land as residential lots but as acreage for a developer to buy and develop. Schmoll had testified that the highest and best use of his property was for building and residential sites. Ross considered that there was a market and demand for such lots near the city limits, and that they could be sold as fast as streets and utilities were built. He stated that there was a great demand for a big acreage like this for this purpose.

On cross-examination Ross was asked how many lots a developer could get out of the property and replied that he would not make that estimate because he did not base his appraisal on lots. The cross-examiner persisted by an immediate repetition of the question, also asking if a developer would not have to consider the number of homesites he could get out of the property in considering what he would pay for it. When the witness did not give the number of homesites, he was again asked how many lots or building sites a developer would have sold by the time he got the property fully developed. Ross responded that he had not “figured” the property in building sites. Only upon a persistent repetition did he finally respond that he would say that a developer could get four good building sites per acre. Even this fishing expedition, with the attendant hazards pointed out in Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S. W. 2d 201, and Arkansas State Highway Commission v. Fowler, 240 Ark. 595, 401 S. W. 2d 1, did not reveal any information that would have rendered Ross’ value opinion inadmissible. I do not see how it could render it insubstantial. It is nowhere shown that he considered the Schmoll property value on the basis of the number of lots that could be carved from it.

If appellant’s theory is followed, there will be no way that an undeveloped tract of land can be valued on the basis of its highest and best use when it is available for development. Appellant’s witness Watson admitted that the highest and best use of the Schmoll property along the highway to a depth of 400 feet consisting of about 21 acres was for residential purposes. He also said that a tract 1M miles west of the Schmoll property contained frontage which had been developed for residential purposes, that three houses had been constructed thereon, and that the entire 44 acres was being developed for residential purposes along the highway. While he stated his opinion that there was not a demand for a 100-acre subdivision, his testimony tends to support that of Ross as to the existence of a demand for residential property. Surely the Schmoll property near the city limits and utilities would be far more desirable than this tract so much farther away, and would have a market value many times as great.

It is wholly unrealistic to say that sales of smaller tracts in proximity to the land in question furnish no indicia of market values in the vicinity. They certainly influence the market. When they do, it is not proper to rule them out as not comparable, as a matter of law.

This case is a far cry from Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 315 S. W. 2d 86. There the value expert stated that the value was arrived at by determining the number of lots into which the property could be subdivided and valuing each lot by comparison to prices being paid in a fully developed subdivision. The fault lay in his failure to value the tract as a whole, as Ross did here. The speculative nature of the testimony was there found in the inability of the jury to compare the lots in the developed subdivision without having any knowledge of numerous factors that would have to be considered in order to make the comparison fair and equitable. No such deficiency exists here.

I would affirm the judgment.

      If the court intends to imply that the burden is on the landowner to demonstrate a reasonable basis for his testimony, I adhere to the views expressed in my dissenting opinion in Arkansas State Highway Commission v. Geeslin, 247 Ark. 553, 446 S. W. 2d 245, at least until such time as the court sees fit to expressly so declare without leaving the idea to be drawn inferen tially.