text:
    Westark Production Credit Association v. Shouse.
    5-1278
    305 S. W. 2d 127
    Opinion delivered July 1, 1957.
    [Rehearing denied Sept. 30, 1957]

      Hardin, Barton, Hardin & Garner, for appellant.

      Donald Poe, for appellee.
   Sam Robinson, Associate Justice.

The appellant, Westark Production Credit Association, hereinafter referred to as Westark, filed this suit against appellee, F. A. Shouse, alleging that over a period of time it loaned to Shouse an amount in excess of $100,000, and that Shouse owes a balance on the account of $26,867.47, and interest thereon. Shouse contends that he has repaid to Westark all the money he borrowed. In fact, he says that he paid to Westark an amount in excess of that which he borrowed. The chancellor made a finding that Shouse had repaid all of the money he borrowed from Westark and that Westark had converted to its own use stock which Shouse owned in Westark of the value of $1,985. Westark has appealed.

The circumstances giving rise to this cause involve the activities of the former secretary-treasurer-manager of Westark, and his connections with appellee, Shouse. The secretary-treasurer-manager, hereinafter called manager, was found derelict in his duties after an accounting conducted by federal auditors, and suit was filed by Westark against the Fidelity & Deposit Company of Maryland to collect on a fidelity bond for the defalcation of the manager. There was a settlement between Westark and the bonding company, a',nd: the manager was relieved of further responsibility. In the suit filed by Westark against the bonding company it was alleged that the defalcation of the manager in connection with the Shouse account amounted to $29,403.33, and against this amount was credited $1,725 for stock which Shouse owned in Westark.

The evidence on the part of Westark in the case at bar consists of ledger sheets which reflect a.ll¡ charges to Shouse, both valid, and those made by the manager in the course of his manipulations, as well as the payments on. the account made by Shouse. These ledger sheets show that Shouse owns 412 shares of Class B stock in Westark. The evidence is substantial to the effect, that during the period of the various transactions covered by the ledger sheets there was a tendency on the part of the manager, Mr. Shouse, and other persons, to sign drafts in blank with the payees and the amounts unknown, and, generally, to conduct the business of Westark in a very slipshod manner. The manager apparently was engaged in procuring dairy cattle for several of Westark’s customers, and had an arrangement whereby Shouse would purchase the cattle in Kansas, Missouri and Wisconsin, truck them to Arkansas and deliver them to customers of the manager. Shouse had a letter of credit signed by the manager, as such, of Westark in an unlimited amount, Avhich reads as folloAVS: “To whom it may concern: Re: F. A. Shouse. This is to certify that the above captioned person is hereby empowered and authorized to execute drafts to be drawn on our account through the First National Bank of Fort Smith, Arkansas. ’ ’

It is unnecessary to detail the transactions which the chancellor found were improperly charged to Shouse’s account, but they are in two categories: First, purchases made by Shouse for the benefit of the manager of Westark were erroneously charged to Shouse; second, fictitious loans for the personal benefit of the manager were charged to Shouse. Also, payments were made by Shouse for which he received no credit.

The records of the federal auditor made in connection with .the. investigation of the manner in which the manager , of Westark conducted its. affairs were introduced in evidence. These records, when considered along with the testimony of other witnesses, are convincing that the balance which the complaint alleges is owed by Shouse is the result of the wrongful manipulations of the manager. A preponderance of the evidence sustains the chancellor’s finding that Shouse is not indebted to Westark in any amount.

The trial court was also correct in holding that there was a conversion of Class B stock of the appellee. Professor Prosser, in his work on Torts (Prosser: Law of Torts, page 66), defines conversion and states: “Conversion may be committed by acquiring possession of the goods, with an intent to assert a right to them which is in fact adverse to that of the owner.” (Emphasis ours). Barnett Brothers Mercantile, Company v. Jarrett, 133 Ark. 173, 202 S. W. 474. The fact that the amount of loss claimed by Westark was occasioned by the manipulations of their own agent and the fact that Westark allowed the bonding company credit for the Class B stock of Shouse, together with refusal to recognize Shouse’s ownership of the stock free of any indebtedness, show an intent to assert a right adverse to that of the owner.

Appellant cites Young v. Westark Production Credit Association, 222 Ark. 55, 257 S. W. 2d 274, as authority for his contention that there could be no conversion, but the Young case is clearly distinguishable from the case at bar; there, the appellant was attempting to offset the value of his stock against an unpaid balance. Here, the appellee has paid his debt to Westark.

We are unable to agree, however, with the trial court’s determination of the amount involved. The federal auditor, in his report introduced in evidence, found that the amount of $335.00, or 67 shares of Class B stock, had been erroneously credited to the account of Shouse. From the record, this report appears to be correct, and the appellee is entitled to a judgment on his cross complaint of $1,725 instead of $1,985, and the judgment is modified to that extent.

Affirmed, as modified.


source: Caselaw Access Project

author: CarletoN PIarris, Chief Justice.

license: Public Domain

text:
    Poskey v. Poskey.
    5-1327
    305 S. W. 2d 326
    Opinion delivered September 30, 1957.

      B. H. Peace, for appellant.

      Pat Bobinson and Patsy Bobmson, for appellee.
   CarletoN PIarris, Chief Justice.

This appeal seeks to reverse the action of the Lafayette Chancery Court, which, upon granting appellee, Beatrice Poskey, a divorce, further awarded the home place to appellee for her use, the property being held as an estate by the entirety by the parties hereto. Mrs. Poskey was granted a divorce from Fred Poskey on grounds of desertion, and was given permanent custody of the minor child, Raymond Poskey. Fred Poskey, appellant herein, was ordered to pay the sum of $140 per month for maintenance and alimony for Beatrice and Raymond. For reversal, appellant urges three points. First, that the estate by the entirety should have been disposed of as set out in Section 34-1215, Ark. Stats. (1947) Anno.; Second that the action of awarding appellee complete possession, control and occupancy, of the entire tract of land was inequitable; and third, that the decree was rendered one year after the evidence was heard, and conditions had materially changed during that space of time. We will discuss each point in the order set out.

I.

Section 34-1215 of the 1947 Statutes provides as follows:

“DISSOLUTION OF ESTATES BY THE ENTIRETY OR SURVIVORSHIP. Courts of Equity, designated Chancery Courts within the State of Arkansas, shall have the power to dissolve estates by the entirety or survivorship, in real or personal property, upon the rendition of a final decree of divorcement and in the division and partition of said property, so held by said parties, shall treat the parties as tenants in common.” This Act was approved on March 28, 1947, while the Poskeys purchased their property on November 6, 1945. Thus, this estate by the entirety was created nearly a year and a half before the passage of the aforementioned act. This Court has previously held that Act 340 does not operate retrospectively so as to affect entirety estates created prior to the passage of such legislation. Jenkins v. Jenkins, 219 Ark. 219, 242 S. W. 2d 124, 27 A. L. R. 2d 861; Meadows v. Costoff, 221 Ark. 561, 254 S. W. 2d 472. The court was therefore without authority to dissolve this particular estate.

II.

The court awarded Mrs. Poskey a divorce ou the grounds of desertion, and such action is not questioned in this appeal. Since the estate could not be dissolved, it was necessary that other disposition be made of the property. It was the opinion of the Chancellor that Mrs. Poskey should be awarded possession of the homestead, and we have previously approved such action where the wife was held to be the innocent party. Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. 2d 21; McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911. Mr. Poskey contends that since six acres of land are involved, the Chancellor should have awarded him a portion for his use, upon which he could also build a house. He argues that one acre would he sufficient for either home, and that the remainder of the land could be divided into city lots for sale or development. This matter was entirely within the judgment of the trial court. Under the authority of the cases cited above, the court was not limited to one acre in making the award to appellee, but had full authority to award the use of the entire tract of land. The evidence certainly justified the finding by the court that Mr. Poskey had deserted his wife, and we are unable to say that some other division of the property would have been more suitable or equitable under the facts in this case; nor can we agree that the order requiring Mr. Poskey to pay the sum of $140 per month for the support and maintenance of his wife and minor child, together with attorney’s fee, is improper, unjust, or inequitable. The evidence discloses Mr. Poskey’s base pay to be $435 per month, with additional pay for overtime. We deem the amount ordered to be entirely reasonable.

m.

Appellant next argues that though the case was tried September 12, 1955, the decree was not rendered until September 10, 1956. As stated in his brief: “Many conditions might have come about within that one year’s time to justify a different disposition of the property rights if such changed conditions could have been put before the court.” It is not shown that any conditions had changed, nor was any pleading filed alleging changed conditions. The statement of appellant therefore enters the field of pure speculation, and is accordingly without merit.

Finding no reversible error, the decree is affirmed.


author: Ed. F. McFaddiN, Associate Justice.

text:
    Reader Railroad v. Green.
    5-1311
    305 S. W. 2d 327
    Opinion delivered September 30, 1957.

      Qaughan, McClellan & Laney, for appellant.

      L. B. Smead and James M. Rowan, J'r., for ap-pellee.
   Ed. F. McFaddiN, Associate Justice.

The refusal of the trial court, to award damages for wrongful issuance of a temporary injunction, is the only point at issue on this appeal.

The Reader Railroad, a common carrier (hereinafter called “Reader”), had a spur track that crossed the land owned by appellee, Allen Green. This track served a gravel pit, and was frequently used prior to 1946. After that year there was little, if any, use of the said spur track; and in 1952 Reader began removing the rails. Thereupon, appellee Green filed the present suit in the Chancery Court to enjoin Reader from removing the rails. Green alleged that the spur line had been abandoned for many years and that the rails had become his property because of such abandonment. When Green filed his suit on March 10, 1952, he also filed a bond and obtained from the Chancery Court a temporary restraining order preventing Reader from removing the rails. The condition of the bond was that the plaintiff would pay the defendant “. . . all damages suffered by it by reason of the temporary restraining order, if such be wrongfully or illegally issued.” On April 29, 1952, Reader filed a motion to dissolve the temporary injunction, claiming that the suit had not been brought in the proper venue.

For reasons that do not appear in the record, there was no hearing on the motion to dissolve the injunction until November 2, 1956, at which time the Chancery Court overruled the motion (which raised only a question of venue, as aforesaid); and immediately Reader filed its answer, denying abandonment and claiming damages because of the temporary restraining order. Trial was in the Chancery Court on November 21, 1956. The cause taken under submission was decided on December 6,1956; and a decree was entered which found, “. . . that the temporary restraining order was wrongfully issued and should be dissolved.” But the Chancery Court also found, “. . . that defendant is not entitled to recover damages on account of the issuance of the temporary injunction”. All court costs were taxed against the plaintiff, Allen Green.

There is no appeal by Green. The only appeal is by Reader, claiming that it showed without contradiction that it was entitled to substantial damages for the wrongful issuance of the injunction, and that the Chancery Court committed error in refusing to award such damages. The appellant, in effect, claims that the trial court abused its discretion in refusing to award substantial damages to Reader, after having found — as it did — that the injunction was wrongfully obtained.

I. Power of Court To Award Damages on Dissolution Of Injunction. Section 32-307 Ark. Stats, reads:

“Assessment of damages upon dissolution of injunction or restraining order. Upon the dissolution in whole or in part of any injunction or restraining order of any and every kind and nature whatsoever, the chancery court wherein the same was pending may assess and render against principal and sureties on the injunction bond a valid judgment for any and all damages occasioned by the issuance of such injunction or restraining order; and the court may either appoint a master to report as to such damages, or may render summary judgment therefor, or at its discretion may cause a jury to be empaneled to find such damages.”

The above is from Act No. 102 of 1915; and, in the case of Citizens Pipe Line Co. v. Twin City Pipe Line Co., 183 Ark. 1006, 39 S. W. 2d 1017, this Court discussed in detail the effect of the 1915 Act on previous statutes. In the case of Sullivan v. Wilson Merc. Co., 168 Ark. 262, 271 S. W. 30, we held that, when the Court dismissed a temporary restraining order, the defendant was entitled to recover his damages.

In the light of these cases, it necessarily follows that Reader was entitled to at least nominal damages in this case, when the Court found, as it did, that the temporary restraining order had been wrongfully issued. Since all costs were adjudged against Green, Reader has, in effect, recovered nominal damages; but Reader claims more than nominal damages. It claims a total of $1,307.37, and the principal items are: (1) rent paid the Missouri Pacific Railroad Company for the rails during the four and one-half years of the existence of the injunction; (2) increased cost of labor required to remove the rails in 1956 over the like cost in 1952 when the injunction was issued; and (3) also the value of the railroad spikes lost from the track during the four and one-half years ’ delay.

II. Minimizing Damages. Green points out that the temporary restraining order was granted on March 10, 1952; that Reader did not call up for hearing the motion to dissolve the temporary restraining order until November 21, 1956; and that it was the duty of Reader to press its motion to an earlier conclusion— this, because of the rule that a party damaged must use diligence to minimize his damages. Gibson v. Lee Wilson & Co., 211 Ark. 300, 200 S. W. 2d 497. It is the duty of a person enjoined to minimize his damages resulting from the improper suing out of a temporary injunction. The Supreme Court of Tennessee,, in Johnson v. Brown, 138 Tenn. 395, 198 S. W. 243, Ann. Cas. 1918C 672, recognized this rule in this language: “It was the defendant’s duty to minimize the damages as much as he could, as in all other cases of injury, by the exercise of reasonable care.” See also 28 Am. Jur. “Injunctions”, Key 345, and annotation in Ann. Cas. 1918C 673.

We have found no case — and learned counsel have cited us to none — holding that the duty on the enjoining plaintiff to bring the ease to trial is stronger than the duty on the enjoined defendant to press for trial to dissolve the injunction. We find nothing in the record to suggest why the case was delayed. Since the trial court refused substantial damages to Reader, we indulge the presumption that the trial court considered the delay, in bringing the case to trial, to be chargeable against Reader rather than against Green. Since all costs in the case were adjudged against Green, the effect was to allow Reader nominal damages; and Reader has failed to show that the trial court was in error.

Therefore, the judgment is affirmed.

       Reader had a right-of-way deed from a former owner of the land.


author: MiNOR W. Mill wee, Associate Justice.

text:
    Ark. State Highway Comm. v. Carder.
    5-1343
    305 S. W. 2d 330
    Opinion delivered September 30, 1957.

      W. R. Thrasher, Neill Bohlinger, Dowell Anders and Bill Demmer, for appellant.

      Catlett & Henderson, for appellee.
   MiNOR W. Mill wee, Associate Justice.

On December 28, 1955, the appellant, Arkansas State Highway Commission, filed suit condemning 5.44 acres of land out of a 14.44-acre tract owned by appellees, Frank Gr. Carder and Frank O. Carder Jr., in Jacksonville, Arkansas. These lands along with others were condemned for the reconstruction and relocation of that part of TJ. S. Highway 67 in Pulaski County known as the North Little Rock — Jacksonville — Air Force Base Highway. A “Declaration of Taking” was filed January 16, 1956 for the “ controlled-access ” road. The issue of the amount of damages sustained by appellees for the taking of their lands was tried to a jury on December 11, 1956, resulting in a verdict and judgment for $31,500.

Appellant first contends the verdict is excessive in that there is no substantial evidence to support it because there is no fair or reasonable basis for the estimates and opinions of the witnesses for appellees concerning the amount of their damages. While the question of the sufficiency of the evidence is one of the law, it is also settled that in making such determination this court must consider the testimony in the light most favorable to appellees and indulge all reasonable inferences in favor of the judgment.

The evidence discloses that 6.95 acres of the tract owned by appellees is zoned for commercial use from which portion appellant took 4.32 acres. The remaining 7.49 acres is zoned for residential use and 1.12 acres were taken from this portion. The land taken will be used in the construction of an overpass and dump varying in height up to 15 feet and 3 inches and extending across the entire tract with a width or frontage of 449 feet along Main Street in the City of Jacksonville at the place of beginning and a width of 240 feet on the Northeast or point of leaving appellees’ property. After the taking of the 5.44 acres there remains an irregular shaped parcel of 1.17 acres zoned for commercial use on the Bast and 7.83 acres on the West of which 6.37 acres is residential and 1.46 acres is commercial. A strip of about 2 acres on the West is burdened by a power line easement. While there was some evidence of plans for interchange or service roads along the limited access highway by appellees’ property, final approval of such plans had not been made at the time of trial.

Three real estate expert witnesses for appellees shown to be well qualified by background and experience estimated appellees damages in amounts varying from $43,000 to $71,500. Such estimates included the market value of the lands taken and damages to the remaining lands by reason of the taking and construction. These witnesses were of the opinion that said lands were strategically located for business use as a shopping area for the inhabitants of the rapidly growing City of Jacksonville and the Little Rock Air Force Base. Instances of sales of lands in another commercial area of the city which the witnesses regarded as comparable in value to the lands in question were given along with other factors bearing on market value.

The foregoing testimony was sharply disputed by the three experts presented by the appellant who estimated appellees’ total damages at $6,400 to $7,102. While admitting it was valuable as commercial property, they denied that the lands were suitable for shopping center development and did not regard it as comparable in value to land in a nearby shopping center area which sold for considerably more than was allowed ap-pellees in the instant case. In support of their estimates they cited sales of other properties during the last 2 or 3 years which they considered more nearly comparable in value to appellees’ lands. It was admitted that there has been a sharp increase in land values generally in the area during the past three years on account of the construction of the Little Rock Air Force Base.

In condemnation proceedings like this we have repeatedly held that the owner may be allowed to show every advantage that his property possesses, present and prospective, in order that the jury may satisfactorily determine what price it could he sold for on the market. Kansas City Southern Ry. Co. v. Boles, 88 Ark. 533, 115 S. W. 375. The credibility of the various witnesses who testified concerning the damages sustained by appellees was a matter for the determination of the jury, and it furnishes no ground for reversal that the verdict might appear to us to be contrary to the preponderance of the evidence. State Highway Commission v. Jelks, 203 Ark. 878, 159 S. W. 2d 465. Also in cases of this kind the jurors are accorded great latitude in considering testimony as to damages and their verdict will be set aside as excessive only when it is not supported by proof, or when it is so excessive as to indicate passion, prejudice or an incorrect appreciation of the law applicable to the case. Texas & St. Louis Ry. Co. v. Eddy, 42 Ark. 527. Tested by this rule, the amount awarded in this case is certainly liberal but we cannot say the verdict is unsupported by substantial evidence or that it is so excessive as to call for a reversal or modification of the judgment.

The only other contention for reversal is that the trial court abused its discretion in refusing to allow the jury to view the lands in question. When appellant renewed its motion that the jury be permitted to view the property at the conclusion of all the testimony, and after counsel for appellees stated his reasons for believing that no useful purpose would be served thereby, the trial court ruled as follows:

“THE COURT: As explained to you gentlemen last evening, the usual policy of the Court, the customary rule followed is to inquire of the jury as to whether or not they would like to go and view the property and in this case I am going to ask the jury if they feel that a view of the property would add to the information which has been supplied to the members of the jury as to whether or not they would like to go and view the property. Let’s see a raising of the hands of the jury who feel that it is not necessary for them or who feel that they do not care to go and view the property. (A unanimous showing of hands was indicated by the jury.) Gentlemen, it seems to the Court the great number of exhibits here, we have pictures of the property, I think a pretty clear picture of the situation out there has been presented, the type of lands and its location and all has been given the jury and jury has indicated that it feels that it does not care to view the lands, so the motion will be denied and you may note your exceptions. ’ ’

While it is conceded that it was within the trial court’s discretion to allow a jury view of the property under out statute, appellant argues that the court failed to comply with it and allowed the jurors to determine for themselves whether they should view the lands. It is true that the exercise of the authority or power to allow a jury view rests in the judgment and discretion of the court and not the jury under the statute. Bridgman v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673. A view is not a matter of right, but rests in the sound discretion of the trial judge as to whether it is proper to enable the jury to obtain a clearer understanding of the issues or make a proper application of the evidence. When the court’s ruling on the question is considered in connection with the numerous maps, plats, photographs and other descriptive items of evidence adduced, we cannot agree that the court abdicated its power and authority or abused its discretion in refusing the jury view of the property.

Affirmed.

       Ark. Stats., Sec. 27-1731, reads: “Whenever, in the opinion of the court, it is proper for the jury to have a view of real property which is the subject of litigation, or of the place in which any material fact occurred, it may order them to be conducted in a body, under the charge of an officer, to the place, which shall he shown to them by some person appointed by the court for that purpose. While the jury are thus absent, no person other than the person so appointed shall speak to them on any subject connected with the trial.”


author: George Eose Smith, J.

text:
    West v. Page.
    5-1325
    305 S. W. 2d 336
    Opinion delivered September 30, 1957.

      John L. Sullivan, for appellant.

      E. M. Arnold, O. W. Pete Wiggins, Roger L. Mur-rel, and Barber, Henry, Thurman & McCaslcill, for ap-pellee.

      John Charles Linthicum, for intervenor.
   George Eose Smith, J.

The appellee Page, a building contractor, agreed to construct three houses for the appellants for the fixed sum of $3,000 a house, plus a specified additional charge for labor, materials, and supervision required for any extra work not included in the plans and specifications. The present suits, consolidated for trial below, were brought by Page and by the other three appellees, who are unpaid materialmen. The cases involve a settlement of the various accounts between the parties.

The dispute between the owners and the material-men may be disposed of quickly. The chancellor found that the three unpaid materialmen are entitled to judgments totaling $1,776.03 and to liens upon the property. This finding is amply supported by the proof and is approved, except that one of the materialmen, American Radiator & Standard Sanitary Corporation, asserts no lien against one of the three lots (Lot 10) and concedes that the chancellor was mistaken in awarding it a lien against that lot.

As between Page and the owners the chancellor found that Page is entitled to judgment for $1,256.19 for extras not included in the original plans and specifications. This finding is questioned on direct appeal by the owners, but we are of the opinion that Page’s testimony establishes each of the items allowed by the chancellor. It may be added that Page’s complaint sought a somewhat larger amount for the extra work, but he does not contend on his cross appeal that the sum awarded is inadequate.

In addition to entering judgment in favor of Page for extra work amounting to $1,256.19 the chancellor awarded Page a judgment against the owners in the amount of the materialmen’s unpaid claims, $1,756.03, with a proviso that any payments made by the owners to the materialmen should also be credited upon the judgment in favor of Page. Thus Page received judgments against the owners totaling $3,012.22, against which the chancellor allowed the owners a credit of $150.16 for money expended by them for work that Page should have done.

The finding of a net balance in favor of Page cannot be sustained, for it disregards the fact that Page received advances from the owners during the course of construction and the fact that it was his duty to pay the materialmen. By the terms of the contract Page was to receive $9,000 for the labor and material involved in building the houses according to the plans, and he has established a claim for extras in the sum of $1,256.19, making a total of $10,256.19 as the maximum sum owed to Page by the owners. Page admits that the owners paid him $8,692.46 during the progress of the work; so even if Page had paid for all the materials he would be entitled to only $1,563.73. There are, however, unpaid material bills totaling $1,756.03. It was Page’s contractual duty to pay these bills, and by statute he is responsible to the owners for the loss resulting from the perfection of materialmen’s liens against the owners’ land. Ark. Stats. 1947, § 51-610. Hence the appellants are entitled to judgment against Page for the deficit of $192.30, together with the item of $150.16 which the chancellor found they had expended in the necessary completion of the houses.

On cross appeal Page argues that the chancellor should not have awarded the owners a judgment for the item, just mentioned, of $150.16. It is contended that the owners’ answer, asserting this counterclaim, was not filed until more than twenty days after the service of summons and that therefore the answer should have been stricken under the mandatory provisions of Act 49 of 1955 (Ark. Stats., §§ 27-1135 and 29-401), as construed in Walden v. Metzler, 227 Ark. 782, 301 S. W. 2d 439.

On the record before us this contention is not well founded. Page filed his complaint in the chancery court, and the summons was served on January 11, 1956. On January 26 — only fifteen days later — the defendant owners filed their motion to transfer the cause to the circuit court. This motion, which as it happens was ultimately denied, was in our opinion a compliance with the statutory requirement that the “defense” to the complaint be filed within twenty days. We do not construe the word defense as being limited to an answer going to the merits of the case. Act 49 deals with default judgments and provides that judgment by default shall he entered “in any case where the defense has not been filed within the time allowed by this Act . . .” Before the passage of Act 49 a defendant who had filed a responsive pleading in the case was not regarded as being in default. In the orderly course of procedure the defendant should be permitted to raise preliminary matters before pleading to the merits of the case. We think it plain that this settled principle of pleading was left undisturbed by the 1955 statute.

As indicated, the decree is affirmed in part and reversed in part, and the cause is remanded for the entry of a decree conforming to this opinion.


author: Paul Ward, Associate Justice.

text:
    Darr v. Lambert.
    5-1247
    305 S. W. 2d 333
    Opinion delivered September 30, 1957.

      Robert J. White, for appellant.

      Bob Bailey and Bob Bailey, Jr., and Williams & Gardner, for appellee.
   Paul Ward, Associate Justice.

The question on this appeal is, in effect, what interest has each of the parties hereto in four parcels of land located in Sections 5, 6, and 7 in Township 6 North, Bange 18 West, and also located in Galla Lake or Darr Lake. Actually the parties are litigating over certain monies deposited in the office of the Chancery Clerk of Pope County, but the distribution of the money depends upon the ownership of the land in question.

In 1949 the Pope County Drainage and Levee District No. 2 brought an action io condemn this property together with numerous other parcels of land. In this condemnation suit many parties were made defendants, among whom were the appellant and the appellees. At the conclusion of this suit the four parcels of land here in controversy were condemned and purchased by the said drainage and levee district, and a certain sum of money was set aside for each of the said four parcels of land. There was no appeal from this determination. In the condemnation suit each one of the said parcels was described and it was determined that in parcel No. 11 there were 6.88 acres; in parcel No. 16 there were 38 acres more or less; in parcel No. 19 there were 23.71 acres, and; in pai-cel No. 21 there were 32.69 acres. The amounts set aside for the several parcels were, respectively, as follows: $172.00, $950.00, $592.75, and $817.25. This is the money over which the parties to this appeal are litigating.

Appellant’s claim. On April 7, 1952 an answer was filed in the aforesaid condemnation proceedings by appellant Irl Darr and several other heirs of one J. F. Darr, deceased. (Note: Irl Darr is the only one of these who has appealed).

Appellant’s claim is based on the following state of facts which he contends is supported by the testimony: In 1898 the United States conveyed to one George H. YanEtten certain land including Galla Lake, which of course includes the parcels of land here in controversy; A few years later the said YanEtten conveyed the land to J. F. Darr, and; He is an heir of the said J. F. Darr, and, by virtue thereof, he is an owner of an undivided 1/5 interest in each of the said four parcels of land. Appellant claims to have purchased a 2/5 interest in addition thereto, making him an owner of an undivided 3/5 interest in all the lands in controversy. Also he claims constructive possession of said lands, under color of title, for more than seven years, during all of which time he and his predecessors in title have paid the taxes.

Appellees claim that they, together with appellant, are the owners in fee of all the land which border on Galla Lake, that their title is derived from the State of Arkansas, and that by virtue of their riparian rights each one of them is entitled to his proportionate part of Galla Lake, which is conceded to be non-navigable.

Findings of the Chancellor. Each one of the parties hereto introduced oral testimony and also numerous exhibits consisting of an abstract of title of said lands and a large number of tax receipts introduced by appellant. The exhaustive written findings of facts and the conclusions of law prepared by the Chancellor and copied in appellant’s brief indicate that he gave close and exhaustive study to the issues involved, and if they were not so exhaustive we could do no better than adopt same as our opinion in this case. The Chancellor found that appellant’s claim could not be sustained for several reasons. Among these reasons were the following: The United States Government had no title to Galla Lake when it executed the deed to YanEtten in 1898 because said land had already passed to the State of Arkansas under the Swamp Land Act of 1850, and; Appellant’s claim could not be sustained on the ground that he had paid taxes on the said lands for more than seven years under color of title. The Chancellor sustained appel-lees’ claim on the ground that, as riparian owners, their title extended to the middle of Galla Lake which he found to be non-navigable.

Based on the above findings the Chancellor set ont the exact amount of money which the appellant and each one of the appellees were entitled to receive in respect to the amount deposited for each particular parcel of land. These amounts are set out in the decree of the Chancellor and are now a matter of record in Pope County and need not therefore be set forth herein.

We have given careful consideration to the entire record and have concluded that the findings of the Chancellor should be sustained. It is conceded by all parties that the findings of the Chancellor are correct as ■ to parcel 19, therefore this opinion relates only to the other three parcels of land.

It is someAvhat difficult to determine whether appellant’s claim to the title of the land herein involved is based on the U. S. Government conveyance to his ancestor’s grantor, or whether it is based entirely on color of title and payment of taxes, but in either event his contention cannot be sustained. As stated before, these lands passed from the United States Government to the State of Arkansas under the Swamp Lands Act of 1850 and therefore the federal government had no title to convey to VanEtten in 1898. Moreover the conveyance from the United States Government to VanEtten has been lost and has never been placed of record, and likewise the purported deed from VanEtten to J. Fi.Dan-lias been lost and never placed of record. Still further there is absolutely no showing that either one of these instruments contains a clear and definite description of the lands.

The tax statements show that appellant paid taxes on an indefinite description in regard to each parcel of land. For example: As to parcel No. 11, the description is “part SW 1/4 of NW 1/4 Sec. 5, 26.78 acres”, while in the condemnation suit it is described as a part of W 1/2 of NW 1/4 of Sec. 5, 6.88 acres; As to parcel No. 16, the description is “part SE 1/4 Sec. 6, 128.80 acres,” while the condemnation description is part N 1/2 SE 1/4 Sec. 6, 38 acres, and; As to parcel No. 21 there is no land shown in the E % of NE % Sec. 6 although, the condemnation suit shows 32.69 acres in that particular call.

Appellant bases his claim “on color of title and payment of taxes”, quoting from Arkansas Statutes § 37-102, which provides in substance that unimproved and uninclosed lands shall be deemed and held to be in possession of the person who pays the taxes thereon under color of title for at least seven years.

Appellant cites several cases holding in effect that the payment of taxes under color of title for seven consecutive years upon wild and unoccupied lands confers title by limitation. It is conceded by all parties that the land here involved is wild and unoccupied or unimproved and uninclosed, and it is recognized that, generally speaking, the rule above announced is correct.

Under the undisputed facts in this case, however, appellant cannot take advantage of the above mentioned rule for the reason that the descriptions of the lands herein involved are indefinite as has already been shown. This court has many times held that a tax deed containing an indefinite description — such as “Part NE 1/4 70 acres” and “West part of SW 1/4 of NE 1/4 30 acres” — is not only void but does not constitute color of title. See: Dickinson v. Arkansas City Improvement Co., 77 Ark. 570, 92 S. W. 21, Gannon v. Moore, 83 Ark. 196, 104 S. W. 139, Halliburton v. Brinkley, 135 Ark. 592, 204 S. W. 213, and Kennedy v. Burns, 140 Ark. 367, 215 S. W. 618.

Appellant lays great stress on the holding in the case of Junction City Special School District No. 75 v. Widdon, 220 Ark. 530, 249 S. W. 2d 990, quoting extensively therefrom. In the cited case appellee had paid taxes for more than fifteen years on 35 acres of ground described in the tax receipts as “Fractional NW % of NW 1/4”, containing 35 acres more or less, and this court held that he had good title to the land under the provisions of Ark. Stats. § 37-103. Under this section of the statute it is not necessary for the claimant to have color of title since the payment of taxes for more than 15 years raises the presumption of color of title. It is the contention of appellant that the holding of this court in the cited case entitles him to a reversal here, because it is not disputed that appellant had paid taxes on the land as described in the tax receipts for more than 15 years.

We have given careful consideration to the holding in the Whiddon case and have come to the conclusion that it affords no relief to appellant, because the facts in that case are different from the facts in the case under consideration. This court, in deciding the Whiddon case, evidently did not feel satisfied to rely solely upon the fractional description in reaching the conclusion it did. We say this because there the court mentions several other considerations which must have influenced the conclusion it reached. We mention some of these considerations as follows: (a) Appellant had not made any attempt to pay taxes on the land in question during all of the years that appellee paid thereon, during which time the land increased in value more than $4,000; (b) It was stated that appellee exercised control and dominion over the lands, selling a right-of-way across said lands which had a width of 100 feet and which was cleared across said lands; (c) It was stated that appellant knew or by the exercise of due diligence on its part could have known of appellee’s dominion over the land and particularly of the right of way and the deeds executed therefore, and; (d) The court stated that the description was definite in so far as appellant was concerned. The reason the court said this was appellant already owned 5 acres of land in the said 40 acre tract and so must have known that the remainder consisted of 35 acres. The court also stated that appellant had notice or could easily have found out that appellee was paying taxes on this land for a period of more than 15 years and that appellant permitted acts of ownership over the land.

None of the many reasons that apparently influenced this court in the Whiddon case in reaching the decision it did is present in the case under consideration. It may also be noted that on June 2, 1952, less than 2 months after the decision in the Whiddon case, this court, in the case of Watson v. Cornish, 220 Ark. 662. 249 S. W. 2d 123, held void a description -which read “Pt. NW 1/4 of Sec. 15, Twp. 16 S, Range 23 W., containing 60 acres”. It was there also pointed out that “A fractional description is good if in fact the designated survey is fractional and the land sold embraces such fraction”, citing Price v. Price, 207 Ark. 804, 182 S. W. 2d 879. There is no contention of course that the section here involved was surveyed as fractional sections.

Since we find no error in the Chancellor’s decree the same is affirmed.


author: CakletoN Harms, Chief Justice.

text:
    Holt v. Holt.
    5-1307
    305 S. W. 2d 545
    Opinion delivered October 7, 1957.

      Jack Holt, Sr., and John F. Park, for appellant.

      Tommy II. Russell and Ruby E. Hurley, for ap-pellee.
   CakletoN Harms, Chief Justice.

This appeal seeks to reverse the decree of the White County Chancery Court, wherein Mildred Holt, appellee, was awarded the custody of the two minor children of appellee and appellant, Ernest M. Holt, Jr. Appellant, for reversal, alleges one point, namely “The order of the lower court awarding the custody of the minor children to appellee is contrary to the well established principle, constantly adhered to by this Conrt, that the first and paramount consideration of the Conrt is the security, well-being and happiness of the children.”

To briefly summarize a history of the case, Mildred Holt, on April 9, 1951, was granted a decree of divorce from Ernest M. Holt, Jr., by the White Chancery Court, and was given custody of the minor children, Linda Kay, then 6, and Larry Wayne, then 4, with visitation rights reserved to Mr. Holt. The decree provided that Holt should pay the sum of $12.50 per week for maintenance of the children. Mrs. Holt, sometime thereafter, moved to Little Bock, and obtained a job at the Westinghouse Corporation, earning approximately $50.00 per week. The children, together with an older child of Mrs. Holt’s by a previous marriage, were placed in the Elizabeth Mitchell Children’s Home, due to the inability of the mother to take care of them while working. They remained in the Home for a period of about three years, with the mother taking them to her home each weekend. During this period, the cost of keeping the children in the Home was largely borne by the mother. According to the evidence, the father, who had remarried in the meantime, contributed almost nothing for approximately two years. On November 28, 1955, appellee was given judgment against appellant for arrearage in child support payments in the sum of $1,174.09, and the court decreed that no further hearing be held on child custody until said amount was paid. Subsequent thereto, Mr. Holt filed a motion asking that this judgment be set aside; that the divorce decree be modified by granting him custody of the children, and setting up that he had been hospitalized and unable to work, as the reason for his failure to make the payments to Mrs. Holt. The judgment was set aside and appellant’s motion was set down for hearing. Upon the hearing, the court found Mr. Holt’s arrearage to be $1,274.09, and ordered that he pay $100 on such arrearage and $50 to Mrs. Holt’s attorney. The order further provided that Mr. Holt’s motion for custody not be heard until the said sum of $150, as well as any child support payments accruing following the order, be paid. Subsequent thereto, Mrs. Holt entered the State Hospital for Nervous Diseases, and stayed there until July 31, 1956. On May 11, 1956, the original decree was modified to the extent that Mr. Holt was authorized to have custody of the children on certain weekends, and when the school term ended, Mr. Holt took his children from the Elizabeth Mitchell Home, and carried them to his own home at Kensett, White County. They remained there until the present hearing, which was held on September 20, 1956, with the final order being entered on November 20, 1956. This order dismissed Mr. Holt’s petition for permanent custody of the children, and restored, to Mrs. Holt such custody; provided for judgment against Mr. Holt for Mrs. Holt in the sum of $1,274.09, allowed an additional fee of $150 to her attorney, directed the continuance of the $12.50 per week for maintenance of the children, and granted Mr. Holt visiting privileges on certain weekends of each month. Prom this final order comes this appeal.

It is conceded by counsel for both parties that the controlling consideration, in determining who shall gain custody, is the welfare of the children. As has been previously stated by this Court in Cushman v. Lane, 224 Ark. 934, 277 S. W. 2d 72, "* * * The paramount and controlling consideration here, as in all custody cases, is the child’s best interest and welfare. Each case presents a different factual situation and no hard and fast rule can be laid down in determining what is best for the permanent welfare of the child. * * *”

In contending that he is entitled to the custody of the children, appellant states that he and his present wife live at Kensett, where both are employed, working five days a week from 7 a. m. until 4 p. m. He earns $100 per month, and his wife earns from $200 to $250 per month. They own their home, fully paid for, which, according to the evidence, was purchased about two years before the hearing. A new Pontiac automobile has been purchased, with payments of $70 per month, and a television set, requiring payments of $5 per week. The present Mrs. Holt states that she is willing to help provide for tlie children, and that she and appellant have an income of $200 to $250 per month to pay ordinary expenses over and above the payments heretofore mentioned.

When school commenced, the children enrolled in the Kensett school, where their grades were better than while at Little Rock. At the end of the school day, the children returned to the home of their grandparents (who lived a few blocks from appellant) and remained there until their father had returned home.

Appellant admits that he did not make his support payments as required, but states that he has “been sick quite a bit of the time” with an ulcerated stomach, and also had injured his hand in a saw, which prevented, and still prevents, his working full time.

The mother, Mildred Holt, was discharged from the hospital, as competent, on July 31, 1956. She was to resume work at Westinghouse tlie day following the present hearing with an approximate income of $50 per week, and had obtained an apartment in North Little Rock, large enough to accommodate the children (four rooms, bath, and back porch) at the rental of $55 per month, including utilities. She expected to work the day shift from 7 a. m. until 4 p. m., in which case she would return to the apartment soon after 4 p. m. to be with the children. Her eldest daughter was also of sufficient age (14) to look after the two younger children until her return. She testified that, if she were placed on the night shift at Westinghouse, the landlady and her husband had agreed to look after the children until she returned from work.

Admittedly, it is difficult to determine which parent should have custody, for it is not easy to ascertain which would better promote the children’s welfare. While certainly we would not deny appellant the custody of his children because of his failure to comply with the prior maintenance orders of the court, (if we were convinced that their welfare would best be served by being placed with him) still we feel that the evidence of his irregular payments, including numerous months in which no payment at all was made, is relevant evidence touching upon the question of appellant’s affection and regard for the children. Though perhaps unable to fully comply with the maintenance order of the court at all times, nonetheless, we feel that some amount could have been given the children for their needs. This feeling is strengthened by the fact that Mr. Holt and his present wife were able to purchase a home during this period of time.

Also, Mrs. W. D. Thomas, superintendent of the Elizabeth Mitchell Children’s Home, testified that during the approximate three year period the children were in the home, she only saw the father once. In reply to the question of counsel: “Q. Did he show any interest in the children to your knowledge? A. Not any at all.”

It may well be that from a financial point of view, the interests of the children would be best served by placing them with their father. But wo do not conclude that the well being of a child is governed entirely by the amount of money that is spent upon him. Other considerations are more important. That this mother loves these children devotedly is not questioned; that she has provided to the best of her ability is likewise unquestioned; nor have her morals and character been brought into issue. In short, if custody should be placed in the father, it would mainly have to be on the basis that Mr. Holt and his present wife are better able financially to take care of these children than is appellee; or perhaps, we should say that Mr. Holt’s present wife is better able to take care of them, since the bulk of the income is derived from her earnings. In regard to appellant’s argument that appellee lacks stability, (referring to her confinement in the State Hospital) the evidence reflects she is presently able to manage her affairs. It may well be that the strain of looking after the needs of three children, with inadequate income, and insufficient help from the father, could have contributed to appellee’s condition. Prompt remittance by Mr. Holt of his monthly support payments will serve to supplement the income of the mother, thus mitigating the needs of the children, and lessening the strain on the mother.

As stated, matters of custody are difficult matters. "We recognize there is something to he said for both sides in the instant litigation. The Chancery Court has had these parties before it on several occasions, and has had the opportunity to observe their attitude toward the children, their interest in, and apparent affection for, same. Under the proof before us, we are unable to say the court erred in placing custody in the mother. Fortunately, in custody cases, the court retains jurisdiction, and if future developments should indicate that a change of custody would be desirable, and for the best interests of the children, the Chancery Court is vested with full authority to revise its orders.

Affirmed.

Justice Holt not participating.

       The mother’s plans for work and care of the children apparently were effected, as the hearing was conducted on September 20, 1956, but the decree was not entered until November 20, 1956.


author: J. SeaborN Holt, Associate Justice.

text:
    Aaron v. Aaron.
    5-1308
    305 S. W. 2d 550
    Opinion delivered October 7, 1957.

      Robert W. Griffith, Little Bock, for appellant.

      George W. Shepherd and Robinson, Sullivan & Dixon, for appellee.
   J. SeaborN Holt, Associate Justice.

Appellant, Margurette Aaron, and appellee, Thomas Aaron, were married in February 1942 and to this union a child, Marilyn, was born. November 10, 1954 appellant was granted a divorce, the care and full time custody of Marilyn, then 13 years of age, and $12 per week for her maintenance, with visitation privileges to appellee. Both parents remarried on January 15, 1955.

February 9, 1956, appellee filed motion to be relieved of further maintenance payments until appellant complied with the original order relating to visitation, which he alleged she had not done. The court granted this order and denied appellant any allowance for attorney’s fees. Thereafter, on November 29, 1956, appellant filed motion for an increase in maintenance allowance for the child, alleging changed conditions, additional expenses and requirements since Marilyn had reached the age when she was being promoted to junior high school. She also asked for all costs and attorney’s fees. Appellee responded to this motion alleging continued violation by appellant of the original order relating to visitation. Trial resulted in a decree awarding part time custody, amounting to approximately 4 months and 8 days per year to appellee, the $12 weekly maintenance payments were reinstated for those periods of time only when the child was in the custody of its mother, appellant. Appellant’s request for costs and attorney’s fees was denied. This appeal followed.

For reversal appellant contends that the trial court abused its discretion in awarding part time custody of the minor child to appellee, its father; in refusing to increase the award for the child’s maintenance; and in denying appellant costs and attorney’s fees. We have concluded that appellant is correct in all of these.contentions.

At the time of trial this little girl was, as indicated, 13 years of age. She testified that while she did not dislike her father she wanted to be with her mother, and showed a decided preference for her. She testified: “Q. The reason that you don’t see him is because of his present wife and you don’t like her? A. Yes . . . Q. That is the truth? A. Yes, sir.” Here as in all similar cases, while the right of each parent to custody of a child is of equal dignity (Kirby v. Kirby, 189 Ark. 937, 75 S. W. 2d 817) the welfare and best interest of the child must be considered as a prime factor in awarding its custody. In Vilas v. Vilas, 184 Ark. 352, 42 S. W. 2d 379, quoting from Patterson v. Cooper, 163 Ark. 364, 258 S. W. 988, wherein there was involved the custody of a 14 year old girl between the father and mother, we there said: “At any rate, the wishes of the children were consulted, and, while their preference is not of controlling importance, it is a circumstance which cannot be ignored, and, as the younger child is now fourteen years old, she has reached an age which would entitle her to select her own guardian, if she had neither father nor mother, subject to the approval of the probate court. Section 4987, Crawford & Moses’ Digest.

“This § 4987 (now incorporated into Ark. Stats., § 57-608) does not, of course, give the children here involved the right to choose a guardian, because they have both a father and a mother, and the statute applies only where the child has neither father nor mother, but we recognized in the Patterson ease, supra, that this statute declares the policy of the law to consult the wishes of children who have reached the age of discretion in deciding which parent shall have their custody.

“It was said in the case of Lipsey v. Battle, 80 Ark. 287, 97 S. W. 49, in which case the opinion was rendered long prior to the passage of the Act of 1921, above referred to, that ‘courts not only respect the rights and feelings of the parent, but also when the child is of sufficient age they give consideration to its wishes. The child in this case is nearly thirteen years of age. She expressed a decided preference to dwell with her mother. So far as this evidence shows, this mother and child are sincerely attached to each other, and this feeling should not he disregarded, nor the ties of affection sundered, unless the welfare of the child clearly demands that she be separated from her mother . . . Other cases to the same effect are: Jackson v. Clay, 89 Ark. 501, 117 S. W. 546; Longinotti v. Longinotti, 169 Ark. 1001, 277 S. W. 41; Jackson v. Jackson, 151 Ark. 9, 235 S. W. 47.”

Here, while the father loves his child and wants part time custody, he does not offer her a home in its real sense. He offers her the care of a step-mother, who, as indicated, she very much dislikes, and who is herself employed by U. S. Time at $40 per week, and who is living in one room with her husband. In the circumstances we think that it would be for the best interest of this child to award her undivided custody to her mother, appellant, with proper visitation privileges to appellee. Divided custody of a minor child is not favored, unless circumstances clearly warrant such action. In the present case we think part time custody would be decidedly against the best interest of this little girl. We hold that the preponderance of the testimony is against the trial court’s finding in this regard.

It is always the duty of the father to support a minor child, “and no conduct on the part of his wife could free him from his dutv” to support such child, (Jones v. Jones, 199 Ark. 1000, 137 S. W. 2d 238). Here it appears that the child’s father, appellee, was earning approximately $58 per week. We think that the allowance of $12 per week for the maintenance of this child was not commensurate with appellee’s ability to pay and the necessities of this little girl who is just entering her teens and junior high school, and obviously her demands are increasing. We are of the opinion that allowance for maintenance should be increased to $75 per month and it will remain at that amount until the altered circumstances of the parties suggest a revision.

Appellee will be required to pay to appellant’s attorney a fee of $100 and in addition all costs.

Accordingly the decree is reversed and the cause remanded for further proceedings not inconsistent with this opinion.

Judge Bobinson not participating.


text:
    Pinchback Planting Company v. Cloud.
    5-1338
    305 S. W. 2d 552
    Opinion delivered October 7, 1957.

      Williamson & Williamson, William K. Ball, and Thomas 8. Lovett, Jr., for appellant.

      Bridges & Young, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This is an action for damages brought by appellee Cloud, against his former employer, Pinchback Planting Company. Cloud claimed that he received a back injury because of the negligence of a fellow employee named Biggs. Trial to a jury resulted in a judgment for Cloud; and the defendant prosecutes this appeal. The sole question, here, is whether the trial court committed error in refusing to direct a verdict for the defendant. In considering that question we necessarily view the evidence in the light most favorable to the plaintiff. Life & Casualty Ins. Co. of Tennessee v. Kinney, 206 Ark. 804, 177 S. W. 2d 768; Rexer v. Carter, 208 Ark. 342, 186 S. W. 2d 147; and Ark. P. & L. Co. v. Connelly, 185 Ark. 693, 49 S. W. 2d 387.

The appellant, Pinchback Planting Company (hereinafter called “Pinchback”),. is a corporation, owning and cultivating several thousand acres in Lincoln County. George B. Rylancl is the president and general manager of the corporation; and appellee, Hollye J. Cloud (hereinafter called “Cloud”), was, at the time of receiving his injuries, the farm manager of the corporation. Pinchback had constructed a levee around a reservoir so as to impound water for use in the dry seasons, and had purchased an electric motor to pump the water from a canal into the reservoir. In the course of installation it was necessary to carry the electric motor up to the top of the levee and then place the motor on a pump stand. While engaged in carrying the motor, Cloud received his injuries, the nature and extent of which are not questioned on this appeal.

Pinchback regularly employed approximately twenty farm laborers; and it was the duty of appellee’ Cloud, as farm manager, to designate and direct the work of these laborers. Twice a day (in the morning and after the noon meal) the laborers met, and Cloud assigned the work. He frequently counselled with Eyland and took general orders from him; but Cloud was the farm manager in charge of the laborers, and Eyland looked after the purchases, sales, and policy matters. When Eyland said that the electric motor was to be installed, Cloud asked how it should be done; and Eyland told him that he was free to do it as he desired, but that at one time Eyland had installed his own motor by having three or four men carry it to the desired location.

On the afternoon of March 30, 1954, Cloud selected four workmen from the group of twenty available: he could have selected more if he desired. He had the motor placed in a truck, and he and the four selected workmen proceeded to a place close to the levee. These four workmen were Shinn, Biggs, Murry and Humphrey. When they reached the levee, they removed the electric motor from the vehicle in order to carry the motor to the top of the levee. The electric motor weighed somewhat in excess of 400 pounds and was cylindrical in shape, being about two feet in diameter and four feet in length. A chain was placed around each end of the motor and then an iron or wooden bar passed through each chain: so that a man was on each end of the front bar and likewise a man at each end of the rear bar. Shinn and Biggs had the front bar, and Humphrey and Murry had the rear bar.

Carrying the electric motor up the levee was difficult because the dirt was soft and slippery. The men slipped and had to put the motor down several times before they reached the top of the levee. When about a third of the way up the levee, Shinn professed inability to carry his load. Thereupon Cloud, even though the farm superintendent, took Shinn’s place in carrying the load; and the group finally, after much slipping, reached the top of the levee. They were carrying the electric motor about two feet above the ground; and Cloud decided that they needed to reverse ends before resting the burden on the top of the levee. We now quote Cloud’s testimony, as it is vital to .the determination of the issue before us:

“After we turned the motor aronnd so that the end that I wanted to go in first was facing the ramp, I said, ‘let’s sit it down,’ and I looked, I glanced hack to see when this motor, the part that was back of me, had or was coming about to the point where I wanted to sit it down, and as I looked back and it got about to the point I said, ‘Okay, sit it down.’ And we started down with it and the chain on the pipe jumped three, four or five inches, enough just to jerk me down,
“Q. Jumped which way?
“A. Towards me — shifting the weight on to me, and the weight shifting and the Sudden jerk, jerked me down; I looked over, ■ — • I caught on the motor when I went down and I noticed Biggs was still standing. He had got kinda on the end of his pipe and was still holding it and he hadn’t let down. He was on the opposite end of the pipe from me, but he was on the end of his pipe instead of having it like you usually carry a hand-stick, he had the end of his pipe up against him holding it.”

Prom the foregoing, it can be seen that Cloud testified that Biggs was negligent in failing to lower his end of the bar when so directed and that this negligence resulted in the injury to Cloud. Although there is only one issue on appeal — i. e., the sufficiency of the evidence to take the case to the jury ■ — ■ nevertheless, the appellant argues the case under five headings. We discuss the case under the appellant’s topic headings.

I. Appellant says-. “Appellee’s Injury Was The■ Result Of A Pure Accident.” Under this heading appellant points out that at one place in Cloud’s testimony he used the word ‘ ‘ accident ’ ’; and appellant, in arguing that there is no liability for an accident, cites and discusses, inter alia, such cases as St. L. S. F. Ry. Co. v. Ward, 197 Ark. 520, 124 S. W. 2d 975; St. L. S. F. Ry. Co. v. Burns, 186 Ark. 921, 56 S. W. 2d 1027; and Mo. Pac. Ry. Co. v. Medlock, 183 Ark. 955, 39 S. W. 2d 518. The word “accident” is sometimes used in the sense of “mishap” or “casualty,” and does not have the meaning that we ascribe to the word in negligence cases. It was certainly used in the everyday parlance sense by Cloud in his testimony. In negligence cases, an “accident” is an event that occurs without the negligence of any person, which is an entirely different conception from the every-day parlance. Here, Cloud testified that Biggs negligently failed to lower his end of the bar on command. Whether Biggs did so fail, and whether such failure was negligence, under the facts and circumstances, were necessarily matters for the jury. So, we hold against appellant on this topic heading.

II. Appellant says: “Appellee Proved No Negligence.” Under this topic heading, appellant cites, inter alia, Kurn v. Faubus, 191 Ark. 232, 84 S. W. 2d 602; Vincennes Steel Corp. v. Derryberry, 194 Ark. 37, 106 S. W. 2d 571; Kroger Grocery & Baking Co. v. Taylor, 203 Ark. 154, 157 S. W. 2d 5; and Hall v. Patterson, 205 Ark. 10, 166 S. W. 2d 667. The sole act of negligence alleged by appellee — and supported by his testimony as previously quoted — was:

‘ ‘ The motor was turned into the proper position and plaintiff gave a signal to set it down. Upon'this signal, Humphrey and Murry and plaintiff all lowered their ends of the pipes to put the motor down. Lois Biggs, who was carrying the other end of the pipe directly across from plaintiff, failed to lower his end of the pipe and this caused the motor to slide toward the plaintiff and a large portion of the weight of the motor was thereby suddenly shifted to plaintiff, causing his back to be injured as hereinafter set forth. ’ ’

Appellant argues that, even though appellee’s testimony be given its full force and effect, still there is no evidence that Biggs heard appellee say to “set it down.” This, of course, was a fact question. Appellee said that he gave such order, and Murry and Humphrey both obeyed such order; so it was a question of fact as to whether Biggs heard the order and failed to obey it. Just as we previously said, the question of negligence was a matter for the jury; so we hold against appellant on this second topic heading.

III. Appellant says-. “Appellee’s Accident Was Unforeseeable.” Appellant claims that no defendant can be held liable for the result of any act or omission, the result of which could not have been reasonably foreseen, anticipated and prevented, citing such cases, inter alia, as Presley v. Actus Goal Co., 172 Ark. 498, 289 S. W. 474; Pekin Stave & Mfg. Co. v. Ramey, 108 Ark. 483, 158 S. W. 156; and Batson v. Smith, 196 Ark. 386, 117 S. W. 2d 731. But, the question of negligence in the failure of Biggs to hear the command and to lower his end of the bar — resulting-in shifting the weight load — was a fact question to he settled by the jury; and all of appellant’s argument on this point is directed against the facts. So we hold against appellant on this third topic heading.

IY. Appellant says: “Appellee And Biggs Were Not Fellow Servants.” Appellant points out that Cloud was the farm superintendent and Biggs a mere laborer selected by appellee to do a laborer’s job; that the relationship of fellow servant did not exist between them; aiid that appellant cannot be held liable to appellee for the negligence, if any, of Biggs. Appellant cites and most strongly relies on the case of Kroger Grocery & Baking Co. v. Taylor, 203 Ark. 154, 157 S. W. 2d 5. In the cited case, Taylor was the manager of the Kroger store in Sheridan. Some tubs were hanging on the wall, and in order to reach them it was necessary to stand ou a box. Kroger had supplied a big heavy box for the purpose; but when Taylor tried to reach one of the tubs, as requested by a store employee named Berry, Berry substituted a thin apple crate in place of the strong box, and when Taylor was on the apple crate, it gave way. There is a statement in the opinion which says: “The fair interpretation of appellee’s own testimony is, that lie was the general manager of the store and not a fellow servant of George Berry.” Even though the opinion recites that Kroger was a corporation, nevertheless the Court erroneously applied the old fellow servant rule that had been abolished as to corporations. We cannot now sanction the case of Kroger Grocery & Baking Co. v. Taylor as repealing our statute, which is § 81-1201 Ark. Stats., and which provides in part:

“Every corporation, . . . shall be liable in damages to any person suffering injury while he is employed by such corporation, . . . for such injury . . . resulting in whole or in part from negligence of such corporation or from the negligence of any of the officers, agents or employees of such corporation.” (Italics our OAvn.)

We haA^e repeatedly held that under similar statutes, the distinctions between vice principals and fellow servants have been eliminated. See St. L. I. M. & So. R. Co. v. Cobb, 126 Ark. 225, 190 S. W. 107; St. L. S. F. Ry. Co. v. Miller, 173 Ark. 597, 292 S. W. 986; and Dicken v. Mo. Pac. RR. Co., 188 Ark. 1035, 69 S. W. 2d 277. So, Ave hold against appellant on this fourth topic heading.

Y. Appellant says: “Appellee Voluntarily Assumed The Risk Of Injury.” Under this assignment, appellant cites and relies on such cases as Kurn v. Faubus, 191 Ark. 232, 84 S. W. 2d 602; Mo. Pac. RR. Co. v. Vinson, 196 Ark. 500, 118 S. W. 2d 672; and Hall v. Patterson, 205 Ark. 10, 166 S. W. 2d 667. Appellant urges that Avhen Shinn professed his inability to carry the load, appellee voluntarily stepped in Shinn’s place and thereby assumed the risk of doing the Avork; that appellee must have known his own strength; and that the employer is not liable Avhen the employee’s knowledge equals or surpasses that of the employer. All these statements are good law; but, they do not explain how appellee could have assumed — as a matter of laAV — the risk of Biggs failing to hear and respond to a command to lower the burden. This is not a case where a man undertook to carry a load and knew his own strength and the load was too great for him: this is a case wherein a man undertook to work with others. It was a fact question as to whether Cloud had any reason to believe that Biggs would fail to hear and obey a command to lower the burden. The servant assumes the risk of which he is aware, or should be aware with the exercise of reasonable diligence; but we have repeatedly held, in cases like this one, that “. . . the servant does not assume the risk of injury from the negligence of his fellow servants, which was unknown to him, and the danger of which he could not appreciate, . . .” Sun Oil Co. v. Hedge, 173 Ark. 729, 293 S. W. 9; C. R. I. & P. Ry. Co. v. Daniel, 169 Ark. 23, 283 S. W. 15; Bruce v. Yax, 135 Ark. 480, 199 S. W. 535. It was, therefore, a fact question for the jury as to whether appellee assumed the risk in this case. We find no merit in appellant’s fifth topic heading.

Conclusion.

Considering the whole case, we find a question of fact was made for the jury; and that is the only point for consideration on this appeal.

Affirmed.

       The Workmen’s Compensation Law was not mentioned by either side. See § 81-1302 (c) (1) Ark. Stats.

       Appellant claims that appellee in his discovery deposition testified differently from the quoted testimony; but, as previously stated, in testing; the sufficiency of the evidence to take the case to the jury, we must give the plaintiff’s testimony its strongest probative force.

       Appellant also has a sixth heading, being, “Value of Prior Statements as Substantive Proof”; but such discussion is merely a precautionary postscript, relating to inconsistencies between testimony and previously given declarations or written statements.

       See Walloch v. Heiden, 180 Ark. 844, 22 S. W. 2d 1020. See also the word “accident” in Black’s Law Dictionary.

       For application of the old fellow servant rule see Howell v. Harvill, 185 Ark. 977, 50 S. W. 2d 597.


author: George Bose Smith, J.

text:
    Jones v. Maddox.
    5-1339
    305 S. W. 2d 548
    Opinion delivered October 7, 1957.

      George Edward Thiel, for appellant.

      Howard A. Mayes, for appellee.
   George Bose Smith, J.

This is a contest of the will of Margaret Maddox, who died in 1956 at the age of eighty. By the will in question, which was signed on April 1, 1954, Mrs. Maddox bequeathed one dollar to her only son, the appellee 0. B. Maddox, Jr., and divided the rest of her estate, valued at about $5,500, equally among her three daughters. The appellee successfully resisted the probate of the will, the trial court finding that the testatrix lacked mental capacity and that the facts pointed to undue influence on the part of the oldest daughter, the appellant Charline Jones. In the view we take it is necessary to consider only the issue of testamentary capacity.

About a dozen witnesses testified for each side and expressed the divergence of opinion that is usually found in cases of this kind. On the whole the better opportunity for observation of the testatrix lay with the contestant’s witnesses, who included C. B. Maddox, Jr., and his wife, several neighbors of the decedent, two police officers, and the only physician to testify. Their testimony tends to show that Mrs. Maddox was mentally confused and unable to look after business affairs during the last five or six years of her life. She could not remember people she had known all her life and was unable to find her way about in the city of Paragould, where she had lived for years. Several witnesses, including the police, describe Mrs. Maddox’s delusion that her son was stealing from her and had taken locks, hinges, boards, furniture, etc., from her house. Dr. Alfred Maddox, a nephew of the decedent, had treated her for high blood pressure and hardening of the arteries. He thought that in 1954 his aunt was not completely competent and needed a guardian most of the time in the handling of her affairs. Twelve months after the execution of the will Mrs. Maddox was judicially found to be incompetent and was placed under the care of a guardian.

The appellant’s proof in support of the will consists largely of the testimony of four business acquaintances of the decedent. These witnesses include' the Memphis attorney who prepared the will and one of three local bank employees who witnessed its execution. It was the belief of these witnesses that Mrs. Maddox was mentally competent to make a will. Objections were sustained to the opinions of the other two witnesses to the will, as well as to other testimony offered by the appellant, and the record does not show what the excluded testimony would have been. The trial judge commented on the fact that the appellant herself did not testify and objected to the testimony of one of her sisters, who had been called as a witness by the appellee.

The basic question presented by this appeal is whether the probate court’s finding of testamentary incapacity is against the weight of the evidence. We have studied the testimony with care and cannot say that the trial court was wrong in refusing to admit the will to probate.

Affirmed.


text:
    Hedrick v. Bigby.
    5-1340
    305 S. W. 2d 674
    Opinion delivered October 7, 1957.
    [Rehearing denied November 11, 1957.]

      E. A. Walton, Salt Lake City, Utah; Lt. Col. Bo-land L. Hedrick, Clinton, N. T. and Bert B. Larey, for appellant.

      LeRoy Autrey, for appellee.
   Paul Ward, Associate Justice.

Two principal questions are presented by this appeal. One, does the Soldiers and Sailors Civil Relief Act give one of the appellants, Colonel Leslie Hedrick, a career soldier, a right to redeem certain tax forfeited land, and two, if he does have such right can he redeem only his own interest or can he redeem for his co-owners also.

The material facts giving rise to the above issues are practically undisputed. Appellant, Colonel Leslie Hedrick, who has been in the Regular Army since September 1, 1942 and who is an acknowledged career soldier, his mother, and his two sisters were the owners of 110 acres of land in Miller County prior to 1941 (appellee questions appellants title and right to redeem because a certain Indiana will was not probated in Arkansas, but the proof shows that regardless of the will appellants had title to the land by inheritance). In the years 1941, 1942, and 1943 different portions of the land sold for taxes, were duly deeded to the state, and 3 or 4 years later they were deeded by the state to the appellee. The testimony sustains the Chancellor’s findings that none of the appellants occupied or used the land prior to forfeiture.

In March 1955 V. H. Bigby, appellee herein, filed suit in equity, alleging his source of title and asking to have his title quieted against any claims asserted by appellants, who were made defendants.

One. The trial court found that appellee went into possession of the lands in 1947 and had remained and paid the taxes thereon for eight years, and that under Ark. Stats. § 37-102 he was the owner and entitled to have the title quieted to the lands herein involved. In so finding, the trial court rejected appellant’s claim of right to redeem under the Soldiers and Sailors Civil Relief Act. In deciding appellants were entitled to no relief under said act, the trial court relied on the provisions of the act as found in U. S. C. A., Title 50, Section 560, Sub-section (1), which reads as follows:

“The provisions of this section shall apply when any taxes or assessments, whether general or special (other than taxes on income), whether falling due prior to or during the period of military service, in respect of personal property, money, or credits, or real property owned and occupied for dwelling, professional, business, or agricultural purposes by a person in military service or his dependents at the commencement of his period of military service and still so occupied by his dependents or employees are not paid.”

Specifically, the trial court interpreted the above subsection to apply to a class of property different from the property under consideration, i. e. the property here considered had not been used by any of the appellants either as a dwelling, as a business, or for agricultural purposes.

We have concluded that the trial court misconstrued the pertinent provisions of the Soldiers and Sailors Civil Relief Act. Sub-section (2), following the above quoted sub-section, shows that section 560 is not dealing with the right to redeem but with the right to sell property and consequently has no application here where we are dealing with the right to redeem.

The part of the act applicable here is found in Article II under the head of General Relief, and is section 525. This section provides in substance that “the period of military service shall not be included in computing any period . . . limited by any law . . . for the bringing of any action, etc.” The plain effect of this section is to toll the period of redemption in favor of appellant Colonel Hedrick.

The distinction in meaning between sub-sections 560 and 525 mentioned above was made clear in the case of Day v. Jones, 112 Utah 286, 187 P. 2d 181. Under facts somewhat similar to the facts of this case the court, in the cited case said:

‘1 Since the land in dispute was not occupied by the respondent for agricultural purposes, section 560 does not apply and the respondent must prevail if at all, upon the strength of section 525, wherein the act of October 17, 1940 was amended by the addition of the following: . . . Nor shall any part of such period (of Military service) which occurs after the date (of this amendment) be included in computing any period now or hereafter provided by any law for the redemption of real property sold or forfeited to enforce any obligation, tax, or assessment.”

“The Congress, by this amendment of October 6, 1942, tolled the running of' any period provided by law for the redemption of real property owned by a person in the military service and sold for taxes, without any restriction as to the nature of such real property or the use to which it was being put.” (emphasis supplied) Our investigation of the authorities reveals that the above decision has been cited many times, always with approval, and it is, in our opinion, sound.

Our interpretation of the effect of section 525 mentioned above is in accordance with the views of other jurisdictions. In the case of Illinois National Bank of Springfield v. Gwinn (1945) 390 Ill. 345, 61 N. E. 2d 249 the court, in discussing said section 525, stated that it was not merely directory or permissive, but imperatively controlling so as to automatically extend the period of redemption, there being no discretion vested in the courts. To the same effect is the case of Peace v. Bullock (1949) 252 Ala. 155, 40 So. 2d 82.

Having decided appellant, Colonel Hedrick, has a right to redeem, it must be held, as a matter of course, the appellee could not defeat this right by possession and payment of taxes.

Nor can we agree with appellee that the Soldiers and Sailors Civil Relief Act is not in effect at this time. It is true that under Sec. 584 (Title 50 U. S. C. A. App.) appellee might have contended Colonel Hedrick should have redeemed within a reasonable time after World War II was officially declared over, but a later amendment of the act (Sec. 464 Title 50 U. S. C. A. App.) states that notwithstanding said section 584, the act shall he in effect until it “is repealed or otherwise terminated by subsequent Act of the Congress.”

Two. Does Colonel Hedrick also have the right to redeem for his cotenants? It is our conclusion that he does have such right.

Appellee has presented an able brief setting forth that, under the general rule as shown by the decisions of other jurisdictions, the right of redemption is limited to the soldier, and that he has no right or power to redeem for his co-tenants. It would serve no useful purpose to review these decisions because, as we see it, this court has already adopted a different rule • — ■ particularly in so far as the right of a minor (upon becoming of age) to redeem for his co-tenants. The rule of this court was clearly and definitely stated in the case of Smith v. Pettus, Curator, 205 Ark. 442, 169 S. W. 2d 586, and by other cases cited therein and other cases decided later.

Although we have explored every avenue, we have been unable to uncover any valid or logical distinction between the right of a soldier to redeem and the right of a minor to redeem. It cannot be questioned that Colonel Hedrick would have had a right, during the two year redemption period, to redeem for his co-tenants, and all the Soldier and Sailors Civil Relief Act does (in this connection) is to extend that same right for a longer period of time.

Therefore the decree of the trial court is reversed and the cause is remanded with directions to enter a decree in accordance with this opinion.


author: Sam Bobiksok, Associate Justice.

text:
    Walters v. Burnett.
    5-1330
    305 S. W. 2d 549
    Opinion delivered October 7, 1957.

      Claude A. Fuller, for appellant.

      Festus 0. Butt, for appellee.
   Sam Bobiksok, Associate Justice.

Appellant, Thomas F. Walters, filed this suit to enforce a lease agreement in which he is named lessee, containing an alleged option to purchase. Appellee, Burnett, demurred to the complaint, and the Court sustained the demurrer in part. We do not reach the merits of the controversy because there is no final order from which an appeal will lie. Ark. State Board of Architects v. Larsen, 226 Ark. 536, 291 S. W. 2d 269. The alleged cause of action to which the demurrer was sustained was not dismissed. The order is as follows:

“On this day comes on for consideration the demurrer to complaint by the defendant Burnett; and on hearing the same and argument of counsel the court finds that paragraph 3 of the lease contract pleaded setting out a purported option contract is void because of want of consideration for said option contract and because the contractual provisions therein are indefinite and uncertain and meaningless. The demurrer is therefore sustained as to said paragraph and as to said alleged option contract and as to all parts of the complaint based thereon. The demurrer as to the remainder of complaint based on the pleaded lease is overruled. To which action as to said option contract the plaintiff excepts; as to such action as to the lease alleged, and to refusal of the court to enter formal declaratory judgment denouncing such alleged option contract as void, the defendant excepts.”

On appeal, appellant says:

“The Court erred in dismissing that part of appellant’s complaint by which he claimed the right of buying said property, without permitting plaintiff a reasonable time to amend said complaint.”

As we view the order, it dismisses no part of the complaint. Appellant is at liberty to stand on his complaint and refuse to plead further, or he can amend; but he must do one or the other, and he still has that right.

Appeal dismissed.


author: CarletoN Harris, Chief Justice.

text:
    Hickinbotham v. Williams, Chancellor.
    4881-4882
    305 S. W. 2d 841
    Opinion delivered October 14, 1957.
    [Rehearing denied November 11, 1957.]

      Kenneth Coffelt, for petitioners.

      Bailey, Warren & Bullion, for respondent.
   CarletoN Harris, Chief Justice.

These cases are here for review on petition for certiorari brought by petitioners, J. H. Hickinbotham and H. Y. Hickinbotham.

On April 15, 1957, this Court affirmed the action of the Pulaski Chancery Court (2nd Division) in enjoining and restraining H. Y. Hickinbotham from violating Ordinance No. 10206 of the City of Little Bock, which ordinance prohibits the operation of grocery stores on Sunday. The injunction was obtained at the instance of several Little Bock grocermen. Subsequent to the entering of a temporary injunction, issued September 14, 1956, the store remained open on September 23rd, 30th, and October 7th. Following the entering of the permanent injunction, October 8th, the store remained in operation, being operated either by H. Y. Hickinbotham, or his father, John H. Hickinbotham, for 32 Sundays, commencing October 14, 1956, through May 19, 1957. On petition of the plaintiffs, (the grocery store operators heretofore mentioned) the Hickinbothams were directed to appear in Chancery Court to show cause why they should not be held in contempt. At the conclusion of the hearing on May 28, the court found both to be in contempt, and assessed as punishment, a fine of $1,900 for each, and directed that each be placed in the Pulaski County jail for a period of 190 days. Bond was approved by this Court pending action on the petition. In seeking this review, petitioners rely upon five points, as follows:

I.

The judgments violate petitioners’ right under the Fourteenth Amendment to the Federal Constitution.

II.

The judgments and the proceedings violate the petitioners ’ rights under the Sixth Amendment to the Federal Constitution.

III.

The injunction order is not broad enough to cover J. II. Ilickinbotham.

IY.

There is no competent evidence in the record to sustain the convictions.

Y.

The penalty assessed is excessive and unreasonable on its face, and because the numerous acts charged as being contemptuous are in fact only one act and one violation and one transaction.

We shall proceed to discuss each point in order.

I.

Petitioners argue that these “convictions” deny them equal protection of the law under the Fourteenth Amendment. In the contempt proceedings before the trial court, petitioners offered to prove that on September 23rd, and each of the succeeding Sundays referred to in the testimony, there were various and numerous establishments “that were open in Little Eock from which, on these particular dates, groceries, fruits, meats, and vegetables were being sold, and that no other arrests were made except one of the defendants in this case.” Suffice it to say that this was not an action wherein petitioners were being tried for a violation of the city ordinance, hut rather the sole issue before the court was whether or not its order had been willfully violated. The trial court so held, with which holding we entirely agree.

II.

The original plaintiffs, some twenty Little Bock gro-cermen, at whose instance the injunction was granted, did not appear or testify in the proceeding, held May 28. Petitioners contend that under the Sixth Amendment to the Federal Constitution, they were “entitled to be confronted by their accusers. ’ ’ This statement is apparently made with reference to that part of Amendment Six which provides that an accused has the right “. . . to be confronted with the witnesses against him; . . .” Petitioners were confronted with witnesses, who testified to the acts alleged to be in violation of the restraining order. Seven city policemen testified that the store was open for business on the Sundays heretofore mentioned, and, in fact, this is not denied by petitioners. Contempt is not a matter between opposing litigants. The offense was not committed against the grocermen. The acts alleged, if proven true, were offenses against the court, and such acts could he established by any relevant and competent evidence. If petitioners desired the testimony of any of the grocermen, they should have had them subpoenaed for the hearing. The argument is without merit.

III.

Petitioners contend that the injunction order, which was issued against H. Y. Hickinbotham, is not broad enough to include J. H. Hickinbotham. Both the temporary and permanent injunctions granted by the court were directed only to petitioner H. Y. Hickinbotham, and do not include the language “agents, servants, employees, etc. ’ ’ The record reflects that J. H. Hickinbotham is the father of H. Y. Hickinbotham, and one of the co-owners of the grocery store. It is stipulated that J. H. Hickinbotham was present in Chancery Court at all of the proceedings against H. V. Hickinbotham, and that he was present in the store involved, helping to operate it, on each of the Sundays during the period involved in this proceeding. J. H. Hickinbotham had knowledge of the rendition of the order. There is no plea that he was an “innocent violator.” The restraining order issued by the court was designed to close the store on Sundays, and the actions of J. H. Hickinbotham were knowingly done and were violative of such order. From American Jurisprudence, Volume 12, Section 26: “The violation or disobedience of an injunction order issued by a court having-jurisdiction in the matter, when committed by a party to the injunction suit, or by a third party having actual notice, is a contempt of court, and is punishable as such by the tribunal issuing the order; . . . This rule is not confined to parties to the injunction. . . .” Our own Court has so held in Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S. W. 2d 538.

IV.

Petitioners’ argument is here disposed of under point II.

V.

In directing our attention to this contention, it might be well to mention the principal purposes in punishing for contempt. Fines and jail sentences are given, not only as punishment for disregarding the court’s orders, but of equal importance, for the purpose of deterring a defendant from future disregard of such orders. Not only does such action act as a deterrent to the particular defendant charged with contempt, but also to others who might contemplate disobedience of a court order. To summarize, contempts are punishable because of the necessity of maintaining the dignity of, and respect toward, the courts, and their decrees. No evidence in mitigation was introduced. The proof simply reflected that petitioners continued to operate on Sunday, either in disregard, or defiance of the injunction. Each violation, of course, constituted contempt. To hold otherwise would have the effect of saying that once an order had been disregarded, it could thereafter be violated with impunity, and punishment rendered only for the original violation. Petitioner’s argument is patently unsound.

One should never be permitted to profit by his violations of the law, and we therefore affirm the action of the court in assessing a fine of $1,900 each; however, we feel that a lesser jail sentence will serve fully as well to deter these petitioners from future acts in violation of the injunction. We accordingly conclude that the jail sentences should be reduced to sixty days for each offender. With such modification, the order is affirmed.

       See Hickinbotham v. Corder, 227 Ark. 713, 301 S. W. 2d 30.

       For discussion of this argument, see Hickinbotham v. State, 227 Ark. 1032, 303 S. W. 2d 565; Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679.

       Emphasis supplied.