author: Jim Johnson, Associate Justice.

text:
    Frazier v. Merrill.
    5-3111
    372 S. W. 2d 264
    Opinion delivered November 18, 1963.

      Daily & Woods, Kerr, Conn & Davis, Oklahoma City, Okla., for appellant.

      Hardin, Barton & Hardin, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from a summary judgment denying a petition for writ of habeas corpus.

Appellant Rachel Merrill Frazier and appellee D. B. Merrill were divorced in Oklahoma by a decree dated September 11,1961, which apparently divided custody of their two minor sons, D. B. Merrill, Jr., age eight, and Steven Ray Merrill, age five, between the father and mother. A copy of this decree is not in the record. Thereafter appellant moved to Kansas, taking the boys with her, and there refused to deliver custody of the boys to appellee or even permit him visitation rights. Appellee immediately returned to Oklahoma and on petition, the Oklahoma court amended its original decree giving appellee complete and exclusive custody of the boys. Appellee then returned to Kansas and filed a petition for a writ of habeas corpus. The decree of the Kansas court, entered June 8, 1962, recites that the parties had stipulated that the court had jurisdiction, that appellee should have custody of the older son two months during the summer, and of the younger son one month, that appellee must file a $1,000 performance bond, and that appellee would have all orders of the Oklahoma court subsequent to the divorce decree of September 11, 1961, set aside.

Prior to the granting of this Kansas decree, appellee had the Oklahoma amended decree set aside. Upon obtaining custody of the boys, after posting the bond, appellee returned with them to Oklahoma. Thereafter he filed a new motion in the Oklahoma court to amend the divorce decree, alleging, inter alia:

“That the said order [setting aside all orders in this cause which were made subsequent to the date of the divorce decree of September 11, 1961] was made at the request of this defendant [appellee] because of the fact that at that time another action was pending in the courts of Wichita, Kansas, regarding the custody of said children and that the plaintiff [appellant here] had violated the orders of this court and had taken said children to Wichita, Kansas, and there refused to deliver custody of said children to this defendant as per order of this court; that the defendant was then required to bring action in courts in Wichita, Kansas, for custody of said children and that the attorneys for the plaintiff refused to have any hearing until such time as the orders of this court made subsequent to the divorce decree be set aside; therefore, this defendant [appellee] had said order set aside because of the coercion and demands of the attorneys for the plaintiff in Wichita, Kansas; ...”

and prayed for exclusive custody of the children. On August 13, 1962, the Oklahoma court again amended its original divorce decree and again granted appellee exclusive custody of the children. No appeal was taken from this decree. Some time thereafter appellee and the boys moved to Fort Smith. On November 27,-1962, appellant petitioned for a writ of habeas corpus in Sebastian Chancery Court. At trial on December 6, 1962, the Chancellor found that the Order Amending Decree of the Oklahoma court of August 13,1962, is a valid decree and entitled to full faith and credit; that appellant made no allegation of changed circumstances affecting the welfare of the children since the date of the Oklahoma Order Amending Decree, or that there existed any material facts .unknown to the Oklahoma court on the date of its order, and that no material question of fact existed and thereupon granted appellee’s motion for summary judgment and denied appellant’s petition for writ of habeas corpus. From the decree appellant has appealed, contending that the Oklahoma order is void on its face and therefore subject to collateral attack.

The Oklahoma statute which authorizes a court to modify or change child custody orders in divorce cases provides, as follows:

12 O. S. 1961 § 1277. Care and custody of children.. —A petition or a cross-petition for a divorce, legal separation or annulment must state whether or not the parties have minor children of the marriage. If there are such children, the court shall make provisions for guardianship, custody, support and education of the minor children, and may modify or change any order in this respect, whenever circumstances render such change proper either before or after final judgment in the action. ’ ’

Appellant argues skillfully that since there was no allegation of material change of condition or circumstances in appellee’s motion to amend the Oklahoma decree nor found in the order of the Oklahoma court, that court was without authority to change custody. Appellee contends that the exact words need-not be specifically set out.

The Order Amending Decree reads as follows:

“The above defendant [appellee] having filed his motion requesting the court to amend decree heretofore made by this court regarding the custody of Steen Bay Merrill and D. B. Merrill, Jr., minor children of the parties hereto and the plaintiff [appellant] having been served with notice of said motion and of the hearing of said motion on this date and she having failed to answer, protest, or appear, and being three times called in open court and failing to answer and the court having examined the file in said cause finds that said plaintiff has been properly and legally notified of this hearing; and the court proceeds to hear the evidence offered by the defendant and upon due consideration thereof finds that the children are in the custody of this court and that they are personally present in court; the court further finds that all of the allegations contained in defendant’s motion are true and that it is for the best interest of the children that the defendant, D. B. Merrill, be granted the exclusive and perpetual custody and control of said minor children.

“It is therefore ordered by the court that the orders heretofore made by this court be amended and the defendant D. B. Merrill is hereby awarded the exclusive and perpetual care, custody and control of Steen Ray Merrill and D. B. Merrill, Jr., and the minor children of the parties hereto.

“Dated this 13th day of August, 1962.”

It is well-established that a judgment of a court of record of a sister state is entitled to full faith and credit and may not be collaterally attacked unless the judgment is void on its face. U. S. Const, art. IV, § 1.

It was said by the Oklahoma Supreme Court in Welch v. Focht, 67 Okl. 275, 171 P. 730, that:

“There is also practical unanimity among the authorities that a judgment of a court of general jurisdiction cannot be collaterally attacked, unless the record affirmatively shows want of jurisdiction, and every fact not negatived by the record is presumed in support of the judgment of a court of general jurisdiction, and where the record of the court is silent upon the subject, it must be presumed in support of the proceedings that the court inquired into and found, the existence of facts authorising it to render the judgment which it did.” [Emphasis ours.]

In McDougal v. Rice, 79 Okla. 303, 193 P. 415, after cpioting the paragraph above, the court goes on to say:

“In Welch v. Focht, supra, the following was quoted with approval of this court from Yan Fleet on Collateral Attack, wherein it was said:

“ ‘There is no connection between jurisdiction and sufficient allegations. In other words, in order to ‘set the judicial mind in motion,’ or to ‘challenge the attention of the court,’ it is not necessary that any material allegation should be sufficient in law, or that it should even tend to show facts that are sufficient. If that were the rule, the absence of any material allegation would always make the judgment void, because it cannot be said that such a complaint has any tendency to show a cause of action. * * * When the allegations are sufficient to inform the defendant what relief the plaintiff demands, the court having power to grant it in a proper case, jurisdiction exists, and the defendant must defend himself. * * * Allegations immaterial and wholly insufficient in law may be sufficient to ‘set the judicial mind in motion,’ and to give a wrongful but actual jurisdiction, which will shield the proceedings from collateral attack.’

“ Then the opinion continues:

“ ‘And the learned author sums up the whole matter by saying that in his opinion the true and logical rule is that, if there is any petition at all invoking the action of the court, a judgment based thereon cannot be assailed collaterally because of insufficiency in the pleading. This, too, is the rule adhered to by the Supreme Court of the United States.’ ” (.Cases cited.)

It is true that neither the motion nor the order contain the specific words “changed conditions or circumstances,” nevertheless we are impelled to the conclusion that the motion contained sufficient allegations to challenge the attention of the court and set the judicial mind in motion, and such silence of the order upon the subject is presumed in support of the proceedings that the court inquired into and found the existence of facts authorizing it to render the judgment that it did. This being true, the Sebastian Chancery Court properly accorded full faith and credit to the Oklahoma Order Amending Decree.

Affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    DeSalvo v. Williams.
    5-3100
    372 S. W. 2d 268
    Opinion delivered November 18, 1963.

      Francis T. Donovan and Guy H. Jones, for appellant.

      George F. Hartje, Jr., for appellee.
   Sam Robinson, Associate Justice.

This is a property line dispute between adjoining landowners concerning a strip of land about 10 feet wide and 900 feet in depth. In 1947 the appellees, Walter and Thelma Williams, bought their property, about 2% acres, measuring 125 feet across the front and about 900 feet in depth. There was a nice dwelling house on the property with a driveway running from the highway on the north, in front of the property, up to the west side of the house. About 15 feet to the west of the house there was a wire fence running north and south the entire 900 foot .depth of the property. Without objection Mr. Williams testified that James Fugatt, from whom he purchased, told him that it was his fence; that he had built it, and that it was on the line or did not miss it much.

Fugatt had purchased the property from Cleve Berry, who also owned the adjoining property to the west. From the time of the purchase from Fugatt, Mr. and Mrs. Williams claimed to own up to the fence. The fence appeared to be the division line between the two properties, and during the entire 15 years that Berry owned the property on the west, following the purchase of their property by Mr. and Mrs. Williams, Berry never said or did anything to indicate that he did not consider that the fence was the line. In fact, in 1947 he asked the Williams for permission to put another strand of barbed wire on the fence, thereby acquiescing in the fence as the line. A property line can be established by long acquiescence. Stewart v. Bittle, 236 Ark. 716, 370 S. W. 2d 132; Weston v. Hilliard, 232 Ark. 535, 338 S. W. 2d 926; Tull v. Ashcraft, 231 Ark. 928, 333 S. W. 2d 490.

Moreover, Mr. and Mrs. Williams have been in adverse possession of the strip of land for more than seven years. Mrs. Williams testified:

“Q. Have you and husband held this property up to the fence?

A. Yes, sir. We have tried to keep it up.

Q. Have you claimed the property up to the fence?

A. Yes, sir.

Q. When you say you have tried to keep it up, what have you done?

A. Well, we have tried to keep the driveway built up and we have tried to keep trees and shrubbery set out. We’ve not got—I’ve always tried to keep it clean, you know, because it is such a fire hazard down there the side from Mr. Berry’s. And—

Q. Go ahead.

A. That’s you know we didn’t want our house to catch afire. If his land caught afire.”

Floyd Williams, son of appellee, Walter Williams, testified that his father had mowed the land east of the fence and kept it up.

In October, 1962, appellants, James DeSalvo and his wife, purchased from Berry two 2% acre tracts west of the Williams’ property. One of the tracts joins Williams. Subsequent to the time of purchase, the DeSalvos had the property surveyed. According to the survey, the line between the Williams’ property and the DeSalvo land appears to be about the middle of the Williams’ driveway leading from the street to the Williams’ garage, which was built in 1961 and adjoins their house. The survey line is about 10 feet east of the fence which was there when the Williams’ bought the property in 1947. The survey line runs through the middle of the Williams ’ garage.

At the time the DeSalvos bought from Berry, the fence was in place only two or three feet west of the Williams’ garage. Any reasonable person would have considered that the fence was the line. Certainly no person would have thought the property line ran through the Williams ’ garage, and yet that is what the appellants now claim.

Berry still owns other property adjoining the DeSalvos on the west, and to make up for the 10 foot strip in controversy, Berry offered to give the DeSalvos 10 feet of land of the same kind and value as the land in dispute, but the DeSalvos refuse the offer.

We cannot say the Chancellor’s decree is against the preponderance of the evidence.

Affirmed.


author: Prank Holt, Associate Justice.

text:
    Bowen v. Hooker.
    5-3106
    372 S. W. 2d 257
    Opinion delivered November 18, 1963.

      J. E. Still, for appellant.

      Boyd Tackett, LeBoy Autrey, for appellee.
   Prank Holt, Associate Justice.

The dispute in this case concerns a one acre tract of land on which is located a cemetery known as the “Bowen Graveyard.” The appellees, as the heirs and relatives of loved ones buried in this cemetery, brought this suit as a class action to establish the right to use “Bowen Graveyard” as a public cemetery. The appellants denied that a public cemetery existed and, also, any interference to appellees or the public as to existing graves.

Appellants bring this appeal from a decree favorable to the position of appellees as to a part of this one acre. For reversal appellants contend that (1) they are the owners of the legal title to this portion by virtue of a 1946 deed and (2) that appellees have abandoned any right to use it for burial purposes.

In 1913 A. M. Bowen and his wife, parents of appellant W. Ray Bowen, conveyed by warranty deed to the Trustees of the Pisgah Methodist Church one acre of land on which existed a cemetery “* * * known as the Bowen Graveyard. ’ ’ In 1946 the Trustees of the Pisgah Methodist Church conveyed by quitclaim deed to the appellants this same one acre tract of land * * known as the Bowen Graveyard.” In 1947 this cemetery was the subject of an action instituted in Pike County Chancery Court against appellants with reference to appellees’ rights of ingress and egress. There was no formal decree rendered in the case. The docket notation recites that appellants were required to allow appellees access “ * * * to cemetery until such time as a road can be constructed * *

From 1915 until 1962 a fence enclosed the east half of this one acre tract. It is undisputed that the fence was maintained in this same location from 1915 until 1962 when the fence was removed by appellants from the south boundary of this enclosed portion. The south fence was moved northward and relocated. As a result, the new south boundary fence then enclosed about one-half of the area previously enclosed by fence. All of the graves were contained in this newly constricted area of one-fourth acre. Before relocation of the fence by appellants the south portion of the fenced area was utilized to some extent by use of the trees for shade during funeral services. This south portion, where no graves are found, received some care and attention from appellees and the community. There have been no burials in the cemetery since 1950. Several witnesses testified that since the north portion was almost filled to capacity they desired and expected to be buried in this south portion of the cemetery and, thus, near their loved ones.

In rendering his opinion, the Chancellor divided the one acre into three parts. Tract No. 1: The area now enclosed by fence, or that portion containing the graves [approximately one-fourth acre]. Tract No. 2: That part of the area from which appellants removed the fence and containing no graves but previously enclosed with Tract No. 1 [approximately one-fourth acre]. This is the “disputed area” which is the basis for this appeal. Tract No. 3: The remaining part of the one acre tract which was never enclosed [approximately one-half acre]. The Chancellor found that the appellees have no right or interest in Tract No. 3 and awarded it to appellants since it is undisputed that it was never enclosed nor used for cemetery purposes and that since 1915 until the present time it has been used by the appellants, or their predecessors in title, for agricultural purposes. The court further found that the area represented by tracts one and two is a public cemetery and that any legal title which appellants hold from the Church was subject to the easement that accrues from a public cemetery and that appellees have never abandoned their rights to such cemetery. Accordingly, the Chancellor ordered the appellants to remove the new fence and relocate it where it existed originally so that the enclosure, as restored, would contain approximately one-half acre. The appellants were also enjoined from interfering with the appellees’ and the public’s right to use “Bowen Graveyard” as a cemetery. On appeal the appellants question only the court’s disposition of Tract No. 2. There is no cross-appeal by appellees.

"We do not agree with appellants’ contention that they are the owners in fee simple absolute of this disputed portion of land, Tract No. 2, by virtue of a 1946 quitclaim deed. A purchaser of land is charged with notice that such has been dedicated to public use for cemetery purposes where there are visible signs and suitable markings to call his attention to the existence of such a cemetery and he takes it subject to such public rights. In Roundtree v. Hutchinson, (Wash.) 107 P. 345, the court said:

“It is true that there are no reservations in the deeds of appellant’s chain of title, but both he and his grantor, Wooley, liad notice of the existence of the burying ground, and purchased subject to the rights the public had acquired in the property. ’ ’

Also see United Cemeteries v. Strother, (Mo.) 61 S. W. 2d 907 and Heiligman v. Chambers, (Okla.) 338 P. 2d 111.

In the case at bar, however, in addition to appellants’ knowledge' of the existence of the cemetery, it is to be noted that the warranty deed by appellant’s father in 1913 clearly stated that the conveyance of the property in question was for cemetery purposes and described it as the “Bowen Graveyard.” Also, in 1946 the quitclaim deed from the Pisgah Methodist Church Trustees to the appellants referred to the one acre being conveyed as the “Bowen Graveyard.” It cannot be said that appellants purchased this property without knowledge of the existence of this cemetery.

Prom our review of the cases in other jurisdictions, since we find none applicable in our own, we think the rule that a purchaser of land takes it subject to any dedication and use for cemetery purposes is best stated in the case of State v. Forest Lawn Lot Owners Association, (Tex.) 254 S. W. 2d 87. There the court said:

“ * * * The substance of what is said by the courts in all the cited cases is that property once dedicated to cemetery purposes and in use as a burial ground for the dead may not be sold, either voluntarily or through judicial proceedings, in such manner as to interfere with the uses and purposes to which it has been dedicated and devoted.” [Emphasis added.]

See also 10 Am. Jur., Cemeteries, % 6, p. 490; 14 C. J. S., Cemeteries, § 25, p. 84; 130 A.L.R. 264 and 75 A.L.R. 2d 599.

We think the Chancellor was correct in his holding that appellants’ legal title is subject to the appellees’ and the public’s use of the Bowen Cemetery.

Appellants next contend that since no graves exist in the south half of the originally enclosed portion the appellees have abandoned it for cemetery purposes. We do not agree. It is undisputed that this portion was enclosed by fence from 1915 until the appellants removed the fence therefrom in 1962 and that such portion has been used for auxiliary purposes in conducting burial ceremonies. Further, the evidence indicates some maintenance by appellees and that relatives and loved ones of those interred in the north portion desire burial in Tract No. 2, the area in dispute. The appellants attempt to refute this proposed future use since there have been no burials in the cemetery since 1950.

The general rule is that a cemetery is never abandoned nor loses its character and identity as such until the bodies reposing there are removed by friends or relatives or by proper public authority and mere disuse or the lack of continued interments does not constitute abandonment. It continues subject to use as a cemetery so long as the burials there awaken sacred memories in the minds of the living. 10 Am. Jur., Cemeteries, § 36, p. 512; 14 C. J.S. § 22, p. 82. Also see Wooldridge v. Smith, (Mo.) 147 S. W. 1019 and Currier v. Woodlawn Cemetery, (N. Y.) 90 N. E. 2d 18.

In Morgan et al. v. Collins School House, (Miss.) 133 So. 675, the court said:

® * The custom of ages has been for people to bury their relatives together or in the same cemetery as far as reasonably possible and giving a privilege to bury should be understood as carrying this right.”

Although there are no graves in Tract No. 2, the south portion, we think that from the facts in this case it is unquestionably a part of the cemetery as a whole.

In County Board of Commissioners for Clarendon County v. Holladay, et al., (S. C.) 189 S. E. 885, the court had before it the question as to whether the cemetery was confined to that area actually occupied by graves. In that case the court said:

* * A cemetery includes not only lots for depositing the bodies of the dead, but also avenues, walks and grounds for shrubbery and ornamental purposes. All must be regarded alike as consecrated to a public and sacred use.”

We think that the south portion, Tract No. 2, was dedicated and consecrated to the sacred use of a public cemetery.

We agree with the Chancellor that the entire area enclosed by the fence from 1915 until 1962, Tracts No. 1 and No. 2, constituted a public cemetery and that the appellees are entitled to the unrestricted use thereof as such.

Affirmed.


author: Carretón Harris, Chief Justice.

text:
    Bornhoff v. Thompson.
    5-3072
    372 S. W. 2d 616
    Opinion delivered November 26, 1963.

      McKnight é Blackburn and Marcus'Fietz, for appellant.

      Shaver <& Shaver, for appellee.
   Carretón Harris, Chief Justice.

This is a child custody case. Billy D. Thompson and Prances Juanita Thompson were married in October, 1951. Two children were born of the marriage, Billie Juanita Thompson (born in 1952), and Jimmy D. Thompson (born in 1955). Billy Thompson has served in the Air Force for a long number of years, and both children, except for a period of about five months, have lived with their maternal grandparents, Mr. and Mrs. Sam Blake, residents of Birdeye. Prances obtained a divorce from Billy in April, 1960, and was awarded custody of the children, the husband being directed to pay $100.00 per month for child support. This order has been complied with. Just prior to the divorce, Prances and Billy had entered into a separation agreement (March, 1960) under which the father agreed to pay the $100.00 per month, and the agreement further provided that should Frances die before the children reached their majority, Agnes Thompson (now Bornhoft) mother of Billy, would have the custody of the children. After the divorce, Frances obtained a job in "Wynne, and continued to live with her parents, together with the children.

In May, 1962, Billy D. Thompson, who is still in military service, and his mother, Agnes Bornhoft, instituted suit, asking that the custody of the children be taken from Frances and awarded to Agnes Bornhoft. Appellee moved to dismiss the cause in so far as Mrs. Bornhoft was concerned, contending that the suit must be brought in the name of the father. In response, appellant contended that the suit was a new action, independent of the original divorce decree, and that Mrs. Bornhoft had a right to bring the action. Counsel for appellant then withdrew the father, Billy D. Thompson as a plaintiff, and the complaint was dismissed as to him. The court proceeded to hear the custody matter with Mrs. Bornhoft as the plaintiff. After hearing a number of witnesses, the court rendered its opinion, finding that Mrs. Bornhoft was not a fit person to have custody of the children; further, that the mother, Frances Juanita Thompson, was likewise unfit to have the custody of the children. The court further found “that for almost the entire life of both children they have lived in the home of their maternal grandparents and that both the grandmother and the grandfather indicated a willingness from the stand to take the children and maintain them in their home and under the facts and circumstances as developed by the testimony the children in the opinion of the Chancellor will be much better cared for by these two elderly people. The father will continue to make payment of $100.00 per month which will be paid to the maternal grandparents and they shall have the exclusive custody of said children pending the further orders of this court. ’ ’ The court then entered its decree, dismissing the petition of Mrs. Bornhoft for custody, and placed the children in the custody of the Blakes. From the decree so entered, appellant brings this appeal. It might first be mentioned that appellee contends that, though the suit was filed as a separate action, it actually is an effort to modify the original decree, and that Mrs. Bornhoft, the grandmother, is not a proper party to bring the action; that the effort to modify the decree can only be properly brought by the father. It is not necessary that this question be discussed in order to reach a determination in this litigation.

The court found that Mrs. Bornhoft “is not such a person with whom the two children should be permanently placed,” and likewise found that the mother was not a fit and proper person to have the custody of her children. No good point would be served in detailing the testimony upon which the Chancellor based these conclusions. Each side called several witnesses, and the good qualities, as well as the bad, were presented to the court during the evidence. Mrs. Bornhoft vigorously contends that the evidence does not support the court’s finding relative to her unfitness to have custody of the children, but there was evidence which supported this conclusion, and we have said that we will not reverse the finding of the Chancellor unless such finding is against the preponderance of the evidence. Dierks Lumber and Coal Co. v. Horne, 216 Ark. 155, 224 S. W. 2d 540; Rogers v. Moss, 216 Ark. 838, 227 S. W. 2d 630. The parties and the witnesses were all observed by the Chancellor, who thus had the opportunity to note their demeanor on the stand, their manner of answering the questions, and he was, accordingly, in much better position to judge the truthfulness or untruthfulness of the statements made by the parties and witnesses. We are unable to say that his finding that Mrs. Bornhoft was not a proper person to have custody of the children, is against the preponderance of the evidence. Having made this finding, it is doubtful that Mrs. Bornlioft actually has the right to question the disposition of the children as ordered by the court. This is not a matter wherein the father of the children is dead, mentally incompetent, an inmate of the penitentiary, or for any other reason unable to seek the relief of the courts. Nor is it a matter where the father has abandoned the children, and thus created the necessity for other close relatives to interest themselves on behalf of the minors. Here, the father voluntarily withdrew as a party to this litigation, though he testified in behalf of his mother. He has not questioned this decree, nor has the mother of the children questioned it.

However, assuming, without deciding, that Mrs. Bornhoft is a proper party to question the court’s order in placing the children with the maternal grandparents, we proceed to discuss appellant’s contention that this 'order was erroneous. This contention is largely based upon the fact that Mr. and Mrs. Blake were not parties to the action. Appellant relies upon language appearing in the case of West v. Griffin, 207 Ark. 367, 180 S. W. 2d 839. There, custody of the minor child was vested in the paternal grandparents, who were not parties to the action (the father of the children being the party), by the trial court. This court, on appeal by the mother, reversed the trial court and awarded the custody to the mother, finding that she was a proper person to have the custody. The language appearing in the opinion relied upon by appellant is as follows:

“It will be remembered that this is not a case in which the court reaffirmed its order awarding custody of the child. That order was modified in the decree from which is this appeal and the child’s custody was awarded to persons who were not parties to the original proceeding and are not parties to this proceeding. We think this was error.”

This statement was dictum since the opinion makes clear that this was not the basis of our determination. Rather, we found that there was no evidence which indicated that the mother had abandoned the child, or that she had, at any time, ceased to be interested in its welfare. We likewise stated in West:

‘ ‘ This is not a case where a child has been permitted to remain in certain surroundings for a period of time long enough to become so accustomed to its surroundings as to make it unwise to remove it. We do not have here the situation that was shown in the case of French v. Graves, 205 Ark. 409, 168 S. W. 2d 1108, because this child had been with the grandparents only two or three weeks at the time of the rendition of the decree from which is this appeal.”

As previously pointed out, in the case presently before us, the children have lived with the Blakes, with the exception of a few months, for the entire period of their lives. In Powell v. Woolfolk, 233 Ark. 893, 349 S. W. 2d 657, we awarded the physical custody of the children to paternal grandparents, who were not parties to the case, the actual order entered by the trial court reciting that the father was given custody; however, the father was not in a position to take care of the children, and they were actually placed in the possession of the grandparents. In the opinion we pointed out that these grandparents were present in person before the court, and subjected themselves to the jurisdiction thereof. Here, also, the grandparents were present in court, agreed to take the children, and subjected themselves to any further orders that the trial court might see fit to enter.

Of course, in matters relating to the custody of minor children, we have said many times, so many, in fact, as to require no citation of authority, that the welfare of the children is the primary consideration. In the South Carolina case of Koon v. Koon, 28 S. E. 2d 89, the same contention was made by appellant, but rejected by the South Carolina Supreme Court. From the opinion:

“Claude Koon raises the legal point that the judgment appealed from was beyond the scope of the issues raised by the pleadings. It is urged that the real controversy was and is between bina and bis wife with reference to tbe custody of tbe child; that tbe maternal grandparents were not even parties to tbe proceeding; that tbe paternal grandparents defaulted; and that tbe court erred in not awarding custody to him.

‘ ‘ Tbe controlling reason for committing tbe custody of tbe child to tbe grandparents, as shown by tbe order, was because this was in accord with tbe child’s highest good. This was entirely within the power and discretion of tbe County Judge under tbe facts in this case.”

It follows, from what has been said, that we are unable to conclude that tbe Chancellor’s findings were against tbe preponderance of tbe evidence, or that be exceeded bis authority or power in granting custody to tbe Biabes. Of course, tbe father can always petition the court for a modification of the present decree if circumstances indicate that a change should be made.

Affirmed.

       During this period, Billy was stationed at Bossier City, La., and Prances and the eldest child lived with him during this time.

       Mrs. Bornhoft also points to the separation agreement (mentioned in Paragraph 1 of this opinion), wherein Billy and Frances agreed that if Frances should die before the children reached their majority, Mrs. Bornhoft “would have custody of the children.” Of course, Frances has not died, but irrespective of that fact, the agreement is meaningless. We have held that agreements between litigants as to the custody of children are not binding upon the court. Bishop v. Lucas, 220 Ark. 871, 251 S. W. 2d 126.

       As of the time of this trial, Billy Thompson had consistently complied with the order of the court to pay the $100.00 per month for the support of the children.


author: Ed. F. McFaddin, Associate Justice.

text:
    Breitenberg v. Parker.
    5-3114
    372 S. W. 2d 828
    Opinion delivered November 26, 1963.

      Wootton, Land <& Matthews, for appellant.

      Fred E. Briner and Holt, Park Holt, for appellee.
   Ed. F. McFaddin, Associate Justice.

This litigation results from a traffic mishap in which appellee, E. R. Parker, sustained physical injuries and property damages. On April 6, 1961, Mr. Parker, accompanied by two companions, was driving his car in a heavy line of traffic in Hot Springs, and E. J. Breitenberg was driving his car immediately behind the Parker vehicle. The car in front of Parker stopped suddenly; Parker stopped suddenly; Breitenberg’s car struck the rear of the Parker car, damaging the vehicle -and inflicting a whiplash injury on Parker; and this litigation resulted. The jury awarded Parker a verdict of $20,000.00; and Breitenberg appealed, claiming three points:

“1. The Appellee Parker improperly asked, a question about the issuance of a traffic ticket to the Appellant Breitenberg and to Appellant Breitenberg’s prejudice.

“2. The Trial Court erred in failing to. grant Appellant’s Motion for a New Trial on the basis that the jury did not have time to consider the evidence.

“3. The verdict of the jury was excessive.”

I. Improper Question. When Mr. Parker was testifying the following occurred:

“Q. Now when you left the scene—Do you know whether the city policeman gave Mr. Breitenberg a ticket or not?

“A. I didn’t see it.

“MB. WOOTTEN: Your Honor, we object to any such, question as that.

THE COUBT: Sustained. The jury will disregard the question even though it was answered in the form that it was.”

Appellant says that the question about whether Breitenberg received a ticket for traffic violation was improper under Ark. Stat. Ann. § 75-1011 (Bepl. 1957), and requires a reversal under such cases as Garver v. Utyesonich, 235 Ark. 33, 356 S. W. 2d 744; Harbor v. Campbell, 235 Ark. 492, 360 S. W. 2d 758; and Girard v. Kuklinski, 235 Ark. 337, 360 S. W. 2d 115. We agree that the propounded question was improper; but the Trial Court promptly admonished the jury to disregard the question and the answer. The appellant seemed satisfied with the Court’s ruling, and neither moved for a mistrial nor made any other evidence of disagreement with the ruling. In these circumstances, we hold that any prejudice arising from the question was removed by the ruling of the Trial Court. See Horton v. Smith, 219 Ark. 918, 245 S. W. 2d 386.

II. Brief Time That The Jury Deliberated. The trial of this cause began on October 25th, and the verdict was returned on October 26th. On November 8, 1962, Breitenberg filed a motion for new trial, supported by the affidavit of counsel to the effect that less than fifteen minutes transpired from the time the jury left the box to consider its verdict until the time the jury returned to announce the verdict; and the appellant urges that this was too short a time to allow the jury to deliberate. When the jury came in with the verdict the appellant knew at that time how long the jury had been out, yet did not ask that the jury be sent back to reconsider the verdict or make any objection to the brevity of jury consideration until November 8th, which was long after the trial. If there had been any objection to be registered, it should have been registered before the jury was allowed to separate.

We find no merit to this point urged by appellant. We have no statute in Arkansas which prescribes a length of time that a jury should consider its verdict; but the general rule from the vast number of cases on the point is well stated in 89 C.J.S. p. 93, “Trial” § 462c:

“While the verdict should be the result of sound judgment, dispassionate consideration, and conscientious reflection, and the jury should, if necessary, deliberate patiently and long on the issues which have been submitted to them, where the law does not positively prescribe the length of time a jury shall consider their verdict, they may render a valid verdict ... on very brief deliberation after retiring, especially where the evidence is not complicated, or the facts are clearly drawn. The trial court may at its discretion, cause the jury to reconsider the case if their decision is so hasty as to indicate a flippant disregard of their duties. ’ ’

Appellant’s counsel cite us to no Arkansas case involving this question of speed of deliberation of the jury, and our search has failed to disclose any such case; but there are many cases from other jurisdictions, all to the effect that the losing party has no ground for a new trial on the basis that the jury verdict was reached in a very short time. Some such cases are: Beach v. Commonwealth (Ky.), 246 S. W. 2d 587; O’Connell v. Ford (R. I.), 191 A. 501; Urquhart v. Durham (N. C.), 72 S. E. 630; Carrara v. Noonan (R. I.), 31 A. 2d 424; Patillo v. Thompson (Ga. App.), 128 S. E. 2d 656; Gaskill v. Cook (Mo.), 315 S. W. 2d 747; and Rustigian v. Molloy (R. I.), 186 A. 2d 724. We like the language of the Kentucky Court in Beach v. Commonwealth, supra:

“The fact that the jury returned a verdict in about eight minutes after having the case submitted to them does not indicate to us that Beach did not receive a fair trial when the issues of fact were so clearly drawn. It is true that a verdict should be the result of dispassionate consideration and the jury, if necessary, should deliberate patiently until they reach a proper conclusion concerning the issues submitted to them. Yet where the law does not positively prescribe the length of time a jury shall spend in deliberation, the courts will not apply an arbitrary rule based upon the limits of time.”

III. Excessiveness Of The Verdict. Finally, appellant urges that the verdict of $20,000.00 is grossly excessive and we are cited to a number of our cases wherein verdicts have been reduced, some of which are: Coca-Cola Bottling Co. v. Shipp, 174 Ark. 130, 297 S. W. 856; Oviatt v. Garretson, 205 Ark. 792, 171 S. W. 2d 287; So. Natl. Ins. Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487; and Ward Body Works v. Smallwood, 227 Ark. 314, 298 S. W. 2d 332. The rule, as to the province of this Court in regard to reducing verdicts, is well stated in Ark. Amusement Corp. v. Ward, 204 Ark. 130, 161 S. W. 2d 178:

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

Every case involving the issue of excessiveness must be examined on its own facts; and before this Court can constitutionally reduce a verdict we must give the evidence in favor of the verdict its highest probative force and then determine whether there is any substantial evidence to sustain the verdict. That Mr. Parker received a whiplash injury in the collision is thoroughly established: there was testimony that the Parker car was entirely stopped; that Breitenberg’s car struck the Parker car with sufficient force to drive it fifteen feet forward and into the rear of the preceding car; that when Mr. Parker emerged from his car he was holding his head; that the investigating officer found Mr. Parker in such condition that he advised one of the other occupants of the Parker car to drive Mr. Parker to his home in Benton; and that this was done.

Mr. Parker was a well, active man, 63 years of age, before receiving his injuries. That he suffered tremendously from the injuries received in April 1961 until the time of the trial in October 1962 is thoroughly established : he has consulted numerous doctors, taken various kinds of pain easing medicines, worn a neck brace, and spent considerable amounts visiting clinics in Memphis and New Orleans for treatment of his whiplash injury; and he was still receiving treatment at the time of the trial. Dr. Walter Carruthers testified that he had been treating Mr. Parker for many months: that Mr. Parker had suffered excruciating pain; that x-rays revealed that prior to the whiplash Mr. Parker had some arthritic degeneration of the joint spaces between the fifth and sixth cervical vertebrae, common to men of Mr. Parker’s age, even though such condition was unknown to Mr. Parker and had never caused him any pain or inconvenience; that a whiplash injury is a snapping of the neck when a person gets his head thrown forward and back or from side to side; that as a result of the whiplash injury Mr. Parker is disabled permanently and to at least 25%. Dr. Thompson, called by appellants, testified that a whiplash injury can produce pain in a previously non-symptomatic case; that prior to receiving the Avhiplash injury Mr. Parker had a degenerative disk condition between the fifth and sixth cervical vertebrae; that the whiplash aggravated that .condition and caused pain; and that because of the whiplash injury Mr. Parker would have some permanent aggravation of his preexisting condition.

There is evidence in the record concerning the damages to Mr. Parker’s car, and also concerning the expenses he has incurred in being treated for his injury; but we have detailed sufficient of the evidence to demonstrate that we cannot say that the verdict is so grossly excessive as to require a remittitur.

Affirmed.

Holt, J., not participating.

       While the cause was pending in this Court on appeal the death of E. J. Breitenberg was reported to this Court; and on motion of appellant the cause was revived and Jacob L. King, as executor of the estate of E. J. Breitenberg, was substituted as appellant; but we style the case as it was styled when first filed in this Court.

       The pertinent portion of said affidavit reads as follows: “That from the time the jury left the jury box until it returned to the court room to announce its verdict, a total of some minute or two less than fifteen minutes was consumed. That a foreman was elected by the jury, as evidenced by the jury verdict and that a minute or two must have elapsed to allow the jury to leave the box and get to the jury room and a comparable amount of time for the jury to return from the jury room to the court room. That at the time it was announced by the bailiff that the jury had reached a verdict and wanted to return, that two to three minutes was consumed in getting all of the court attaches together and back in the court room and following this time, the jury returned. That there was less than ten minutes time in which the jury had to elect a foreman, discuss the evidence, vote and arrive at a verdict, and therefore improper consideration to the evidence and law was given. That this affidavit is made in support of the defendant’s motion to set aside the jury verdict and to render a new trial in the cause.”


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

text:
    Parnell, Inc. v. Giller.
    5-3076
    372 S. W. 2d 627
    Opinion delivered November 26, 1963.

      JoeB. Hurley, Keith, Clegg and Eckert, for appellant.

      Broivn, Compton & Preivett, Richard H. Mays, for appellee.
   George Bose Smith, J.

This is a suit by the appellee Giller, the lessor, to require the appellant Parnell, the lessee, to account for royalties assertedly due under a rather unusual lease providing for the commercial production of salt water from the lessor’s land. Parnell sells the brine to a chemical company, which extracts bromine from it. The contract between Parnell and the chemical company requires Parnell to deliver the raw salt water (by pipeline) to the purchaser’s plant and to dispose of the spent brine (by returning it to the earth) after it has been processed.

The royalty payable to the lessor is computed upon the market value of the salt water at the well. The question in the case is whether the lessee, in calculating the market value, is entitled to deduct its expenses in piping the salt water to the chemical company and in disposing of the spent brine. The chancellor allowed the deduction of the pipeline expense but denied the deduction of the disposal expense. Both sides have appealed.

We have concluded that both deductions must he allowed under this provision in the'lease: “The royalty to be paid by Lessee is: On brine produced from said land and sold off the premises or .used off the premises in the manufacture of bromine or other product therefrom, the market value at the Avell of one-eighth (Vs) of the brine so sold or used; provided, that on brine sold at the Avells the royalty shall be one-eighth (%) of the amount realized from such sale.”

This lease Avas evidently patterned after a common form of oil and gas lease. In construing a similar clause in a gas lease we .held, in Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S. W. 830, that AAdiere the gas was used off the premises the lessee was entitled to deduct its transportation and distribution expense in determining the market value of the gas at the Avell. In principle that case controls this one.

Here the parties agreed upon two different methods for computing the royalty, depending upon Avhether the brine Avas sold on or off the premises. The appellee is manifestly in error in contending that the lessee is entitled to no deductions whatever when the brine is sold off the premises, 'for if that view were accepted there would be no difference at all in the two methods of computation. We must give effect to the parties’ purpose in distinguishing the two situations.

As a transportation cost the pipeline expense falls within the letter of the Bushmaier case. The expense of disposing of the used brine falls within its reasoning. Both services were demanded by the chemical company as a condition to its willingness to enter into the contract of purchase. It is not reasonable to suppose that the buyer would have agreed to pay as much as it did for the brine if the performance of these necessary steps had been its own responsibility. Hence, as in the Bushmaier case, these charges must be taken into account in fixing the market value at the well.

The appellee earnestly argues that it- ought not to be charged with either expense, because both charges are within the exclusive control of the lessee and are therefore subject to being unfairly or even fraudulently inflated. The parties, however, undoubtedly contemplated the lessee’s control in the matter, for it is the lessee that has the power to arrange sales off the premises. There is no proof that any excessive charge has been made. Should that situation arise the law may be expected to provide a remedy.

Finally, it is contended that if these deductions are permitted the way will be open for the lessee to charge all sorts of ordinary overhead and business expenses in the computation of market value. The answer is that the two items in dispute are not general business expenses of the lessee. They are services that are essential to and peculiar to the marketing of the product itself. They are services that might equally well have been undertaken by the purchaser. They are services that were considered by the purchaser in its determination of what it was willing to pay for the product. In the circumstances it cannot be doubted that the cost of the services should be credited to the lessee in fixing the market value of the raw salt water at the well.

The decree is reversed on direct appeal and affirmed on cross appeal; the cause is remanded for further proceedings.

MeF addin, J., dissents.

Ed. F. McFaddin, Associate Justice

(dissenting). I would affirm the Chancery decree on all points. As to the .cost, of transporting the raw brine from the well to the point of ¡$ale, I agree with the Majority that the case at bar is ruled by Clear Creek Oil & Gas Co. v. Bushmaier, 165 Ark. 303, 264 S. W. 830. But I disagree with the Majority as to charging against the landowner the cost of the 'disposal of the refuse fluid after the brine has been extracted at the plant of the purchaser. The cost of the disposal of the said refuse fluid was a business expense, to be paid by Parnell from the %ths working interest, just like advertising, salaries, telephone, and such other items are business expenses and not to be charged against the royalty interest.

The present case was tried on a stipulation as to the facts, which showed:

1. That Giller executed the lease to Kin-Ark Oil Company. •

2. That Kin-Ark Oil Company assigned the lease to Parnell.

3. That Jett Drilling Company entered into a contract with Arkansas Chemicals, Inc., in which contract Jett agreed:

“Article 3—Delivery and Disposal, (a) SELLER shall deliver Raw Brine via pipeline to the storage facilities of the plant of BUYER upon request of BUYER, (b) SELLER shall receive all of BUYER’S Spent Brine at the plant of BUYER via BUYER’S effluent júpeline and dispose of it in a manner which will not adversely affect the Raw Brine being supplied to BUYER. ’ ’

4. That Jett Drilling Company assigned its rights under the contract to Parnell; so Parnell is now operating with Ai’kansas Chemicals, Inc. under the above quoted provision.

In the stipulation there is no showing that this disposal clause above copied was necessary to the sale of the raw brine. There is no showing that it is the usual and customary clause in such an instrument. Until Parnell made some such showing, I think the expense of the disposal of the refuse fluid should be held to be a business expense, and the landowner should not be required to pay from his %tk royalty a portion of a business expense incurred by the holder of the %ths working interest.

Since the Bushmaier case, involving gas, was used as a precedent on the first point-—transportation of the raw brine to the point of sale—-I have searched various oil and gas cases for one with a factual situation similar to the one here; but my search has been fruitless. In Summers on Oil & Gas Permanent Ed. Yol. 3A, § 589 et seq., there is a discussion of Royalties; and in § 590 there is a discussion of the expenses of removing water and other foreign substances from crude oil; but the cited cases contain language different from that in the lease here involved. There is an annotation in 73 A. L. R. 2d 1056 entitled, “Expenses and taxes deductible by lessee in computing lessor’s oil and gas royalty or other return.” The annotation states that each case depends on the particular terms of the lease involved (e.g., “net costs” is distinguishable from “costs”); and the annotation says of operational expenses:

“Notwithstanding the fact that a lessor’s royalty is ordinarily to be paid or rendered free of all the expenses of operating the lease, that is, the expenses of exploring and drilling and bringing the products to the surface and delivering the same into tanks or pipelines, a particular lease may of course entitle the lessee or operator to deduct such expenses.”

Under the lease and the sales agreement with Arkansas Chemicals, Inc., here involved, the disposal of the refuse fluid after the brine has been removed at the Purchaser’s plant appears to me to be an operational or business expense that should be borne by appellant as the operator or the owner of the %ths working interest. The Buslimaier case limits the expenses that may be charged against the landowner to transportation and distribution; but here, the Court is allowing the lessee to add another expense, that is, a disposal expense. The disposal clause here involved should certainly be construed most strongly against Parnell, who accepted and operated under the Arkansas Chemicals, Inc. agreement, rather than against Giller, who had no part whatsoever in framing the Arkansas Chemicals, Inc. agreement, and who never operated under it.

I would affirm the Chancery decree in its entirety.

       Here is the language: “The prices prevailing at the nearest place where the product can he sold, less transportation and distributing charges, show the value of such product at the place of delivery as nearly as it is possible to show such value.”


author: Paul Ward, Associate Justice.

text:
    Armco Steel Corp. v. Ford Construction Co.
    5-3125
    372 S. W. 2d 630
    Opinion delivered November 26, 1963.

      John E. Coates, for appellant.

      Brown, Compton £ Prewett, Bose, Meek, House, Barron, Nash £ Williamson, for appellee.
   Paul Ward, Associate Justice.

In August, 1960 the El Dorado Waterworks and Sewer Commission let a contract to the Ford Construction Company to construct a sanitary sewerage plant at a total cost of $204,468. Pursuant to Ark. Stat. Ann. § 14-604 (Repl. 1956) the construction company furnished a bond with United States Fidelity and Guaranty Company. Hereafter the latter will be referred to as U. S. F. & G. The construction company will be referred to as Ford, and the Commission will be referred to as El Dorado.

El Dorado employed Mas Mehlburger and Associates, engineers of Little Rock to prepare plans and specifications for the proposed sewerage plant. Said plans and specifications were completed prior to June 12,1960. On that date the Armco Steel Corporation (hereafter called Armco), domiciled in Ohio, purchased two sets of said plans and specifications preparatory to selling Ford certain piping and equipment to be used in constructing said sewerage plant. Later Ford and Armco entered into a contract (or purchase order) wherein the latter agreed to furnish certain definitely described articles for the price of $37,195.33. Included in these articles Avas a sizeable quantity of 21 inch metal piping. The 21 inch pipe Avas to be laid or buried in a levee betAveen tAvo lagoons. This litigation stems from disagreements in some Avay connected Avith a portion of this 21 inch piping.

Summarily stated, here is Iioav the disagreements arose. Work began on the project in the early part of 1961, and by mid-September 1961 some of the 21 inch pipe had been laid in the levee. In early October 1961 tests made by Ford revealed leaks had developed in about 25 joints. Later, inspections Avere made by different parties but no Avay Avas found to stop the leaks, and on December 30, 1961 Mehlburger and El Dorado ordered Ford to remove the pipe and replace it with other piping.

In an attempt to adjust matters between Ford and Armco, the latter offered to take back the rejected pipe and cancel the balance of $5,955.78 OAved by Ford. Upon Ford’s refusal to accept this offer of settlement, renewed efforts to reach a settlement AAdthout resorting to court action were made over a period of several months. Again, no settlement was reached and this litigation followed. Armco sued Ford (and U. S. F. & G) for the balance due on merchandise ordered and delivered, and Ford counter-claimed for alleged damages.

For clarity and convenience we, at this point, divide our discussion into two separate parts, based upon the above pleadings. One: Armco recovered a judgment against Ford and U. S. F. & Cl. for the balance due on merchandise. The trial court refused to allow Armco statutory penalty and attorney’s fee, and this is urged to be reversible error. Tioo: Ford recovered a judgment against Armco (on the cross complaint) for damages allegedly resulting from Armco’s breach of warranty.

One. Penalty ancl Attorney’s Fee. Armco alleged Ford owed a balance of $5,955.78 on account, Ford admitted signing the purchase order but denied the materials were delivered and accepted. Ford also claimed a credit of $1,778.19 for pipe returned and $230 for another item. Armco filed a reply, conceding the above named credits, leaving a balance of $3,947.59. Thereupon, when appellees offered to confess judgment for the above amount the court instructed the jury to return a verdict for Armco against Ford and IT. S. F. & G. for $3,947.59. Armco then moved the court to assess the statutory 12% penalty and attorney’s fee against U. S. F. & G. under the provisions of Ark. Stat. Ann. § 66-3238 (Supp. 1961). The motion was denied by the trial court. This action, by the trial court is here assigned as error. ■' : ..."

We do not agree with appellant. As pointed out above, as soon as Armco reduced its claim to. the correct amount Ford and U. S. F. & G. promptly confessed judgment for that amount. In the Great So. F. Ins. Co. v. Burns & Billington, 118 Ark. 22, 31, 175 S. W. 1161, the plaintiff amended its complaint to reduce its claim but the insurance company did not then confess judgment but went to trial. The judgment was for the amended amount, and we held the penalty attached. This Court,however, made the following announcement which is decisive against Armco:. <

‘ ‘ If the insurance company had desired to avoid the penalty and attorneys’ fee provided for by the statute, it should have offered to confess judgment for the amount sued for in the amended complaint. ’ ’

Although the above quote may be classified as dictum, yet it is a clear statement of the rule consistently followed by the court.- See: National Fire Insurance Company v. Kight, 185 Ark. 386, 47 S. W. 2d 576; Broadway v. The Home Insurance Co., 203 Ark. 126, 155 S. W. 2d 889. The first case construed C. & M. Digest § 6155 and the latter case construed Pope’s Digest § 7670, both sections being the same as Ark.- -Stat. Ann. § 66-3238 (Supp. 1961) the section relied on here by appellant.

We conclude, therefore, that the trial court correctly refused to assess the statutory 12% penalty and attorney’s fee.

. Two. Da/inages. In connection with appellee’s answer to Armco’s complaint, Ford alleged a counter-claim against Armco in the amount of $38,176.03. Ford’s claim was based on four counts: (1) breach of contract, (2) breach of warranty, (3) negligence, and (4) fraud. Generally speaking, all counts were based on the contention by Ford that the materials furnished by Armco failed to meet required specifications. After denying :>all four counts, Armco affirmatively pleaded the following provision in the purchase contract:

“There are no understandings, terms or conditions not fully expressed herein. There is no implied warranty or condition except an implied warranty of title to and freedom from encumbrance of the products sold hereunder and in respect of products bought by description that they are of merchantable quality. Seller’s liability hereunder shall be limited to the obligation to replace material proven to have been defective in quality of workmanship at the time of delivery, or allow credit therefor at its option. In no event shall Seller be liable for consequential damages or for claims for labor.”

On appeal, appellant urges three separate grounds for a reversal. A. The trial court erred in refusing, to direct a verdict. B. Error in giving a certain instruction on measure of damages. G. Error in refusing a certain instruction. After a lengthy trial, the jury returned a verdict in favor of Ford in the amount of $26,176.03 on the first three counts, the last count (on fraud) was abandoned by Ford.

A. Appellant’s contention that the trial court erred in refusing to direct a verdict in its favor at the close of all the testimony is based principally on a question of law which is ably and exhaustively argued in its brief. In this argument no stress is placed on the sufficiency or insufficiency of the evidence. In our discussion hereafter, and without expressing any opinion as to the merits of the other two counts, we consider only the second count which is based on an implied warranty. Referring back to section “6” of the purchase order copied above, it appears clear to us that it contains an implied warranty on the part of Armco. The pertinent language-is:

There is no implied warranty . .. except an implied warranty ... of products bought by description that they are of merchantable quality.”

There is, and could be, no contention that the subject merchandise here was not “bought by description.” We see no reasonable ground for a dispute over the meaning of the words “merchantable quality.” In the context here used they could only mean pipe fit to be placed underground for years of service in a sewer system. During the trial several disputed questions of fact arose, such as: were the pipes properly inspected? was Ford diligent in reporting defects to Armco? was an inspector present when the pipes were installed? etc. We deem it unnecessary to consider these questions of fact for the reason that the jury has passed upon them under instructions not objected to by appellant, and they are also not questioned by appellant in arguing the point now under discussion.

First, appellant argues that Ford cannot recover because the proof shows he did not comply with paragraph “5” of the contract or purchase order signed by both parties. It reads:

‘ ‘ Claims by the buyer must be made promptly upon receipt of shipments and seller given an opportunity to investigate.”

To the same effect Armco relies on a clause in paragraph “6” which reads:

“Seller’s liability hereunder shall be limited to the obligation to replace material proven to have been defective in quality of workmanship at time of delivery ... ” We are unable to agree with this position taken by appellant. The records show that when the pipe was delivered to Ford at El Dorado it was heavily coated with tar or asphalt so that Ford had no way of detecting whether the pipe was welded or riveted or whether it would be watertight. The only way Ford (or Mehlburger) could have discovered defects such as leaks in the pipes was to put them in place (with the joints coupled together) and subject them to water pressure. When this was done it became clearly evident that the pipes were not watertight and were not therefore of “merchantable quality.”

However, the principal ground relied on by appellant is based on the last sentence in paragraph “ 6 ” which reads:

“In no event shall Seller be liable for consequential damages ...”

Appellant presents an able argument and an exhaustive array of authorities from other jurisdictions to the effect that Armco had a legal right to contract against liabilities for “consequential damages.” However, we find it unnecessary to pass upon the effect of the cited authorities or whether they should be followed by this Court. The reason is that, before appellant would be entitled to an instructed verdict, it must also show that all damages resulting from defective materials furnished, were “consequential damages”—that is, damages not recoverable under the implied warranty of fitness for the purpose intended. After careful consideration we have concluded there is evidence in the record to show Ford did suffer some amount of damages resulting from Armco’s breach of warranty regardless of whether such damages are termed consequential damages, direct damages, or foreseeable damages. It is not denied that the pipe leaked or that Ford suffered a financial loss in trying to correct the defective pipe and in removing the same. It was up to the jury to say whether Ford acted reasonably in failing to detect the defects in the pipe before it was installed. It seems therefore that the real question for decision is whether “consequential damages” necessarily includes all damages including direct and foreseeable damages. We hold the quoted words are not so inclusive, as many authorities indicate. Black’s Law Dictionary (áth ed.) defines “consequential damages” as

“Such damage, loss, or injury as does not flow directly and immediately from the act of the party, but only from some of the consequences or results of such act. ’ ’

In the case of Despatch Oven Co. v. Rauenhorst, 40 N. W., 2d 73, 79 (Minn. 1949) they had this to say:

“The ‘consequential damages’ referred to in the clause in question are such damages as do not arise directly according to the usual course of things from the breach of the contract itself, but are rather those which are the consequence of special circumstances known to or reasonably supposed to have been contemplated by the parties when the contract was made. ’ ’ (Citing cases.) In the case of General Talking Pictures v. Shea, 187 Ark. 568, 61 S. W. 2d 430, we said that if a disclaimer is effective at all, it will not extend by implication to liabilities which it does not by its express terms cover. There is, of course, no contention of Armco here that its disclaimer covered any particular items of damages. In 17 C.J.S. Contracts § 262 it is stated:

“Contracts of this nature are not favored by the law; they are strictly construed against the party relying oil them, and clear and explicit language in the contract is required to absolve a person from such liability. ’ ’ 5 Corbin, Contracts § 1011, in discussing Causation and Foreseeability, states:

“Another form in which the present rule is often stated is that damages are recoverable only for injuries that are the natural result of the breach. This seems to have no meaning other than that there was reason to foresee such injury.”

We cannot escape the conclusion in this case that Armco, skilled in the business of producing and furnishing sewer pipes, could have reasonably foreseen that a leaky pipe would cause damage. It is bound to have known a leaky pipe would not be usable, that it would have to be removed, and that this would be expensive to Ford. In this connection, the statement found in Main v. Dearing, 73 Ark. 470, 84 S. W. 640 is applicable, where the Court, in speaking of merchandise furnished for sale, quoted: ‘ ‘ The purchaser cannot be supposed to buy goods to lay them on a dunghill.” It would be unreasonable to hold in a situation like the one here presented that Armco could warrant its product to be usable in one breath and then in the next breath disclaim all liability if it is unusable. It is our conclusion that appellant was subject to liability in some amount for a breach of its implied warranty and, therefore, was not entitled to a directed verdict in its favor on Ford’s counter-claim.

(b) Meastire of Damages. The jury returned a verdict in favor of Ford in the amount of $26,176.03. It is the contention of appellant that an instruction (requested by Ford) given by the court constituted reversible error in that it contained the wrong measure of damages. The instruction in question reads:

“If you find for Ford on its counter-claim for breach of warranty and if you further find from a preponderance of the evidence that the material in question was of a substantially different description or kind than the material ordered by Ford, and that the difference was not readily discernible upon delivery, or that the material was inherently incapable of being made watertight by reasonable and practical means after delivery, or that Ford tendered the material in question to Armco after it was unable to stop the leakage, and Armco refused to accept it or to replace it with suitable material, then and in either of those events your verdict for Ford will be for such sum as you find from a preponderance of the evidence Ford would have received from the City of El Dorado for furnishing and installing the material in question had it been allowed to remain in the levee, and also for such expense reasonably incurred by Ford in attempting to make the material watertight, and the cost and expense reasonably incurred by Ford in removing the material from the levee and in redressing and shaping the levee after removal.”

An analysis of the above instruction reveals that it permitted the jury to find four separate elements of damage, viz: 1—amount due from El Dorado for installing the pipe; 2—the expense of trying to make the pipe watertight; 3—the cost of removing the pipe; and, 4—cost of leveling the ground. The only element of damhges in the instruction which appellant objects to is number 1 above. Appellant points out that this item amounts to $17,925—2,390 (feet of rejected pipe) multiplied by $7.50 (the price per foot El Dorado contracted to pay).

This, argues appellant, is allowing Ford to receive a gross profit where he was entitled to receive only a net profit. To sustain this contention appellant cites the case of Border City Ice & Coal Co. v. Adams, 69 Ark. 219, 62 S. W. 591. Conceding, for the purpose of this opinion, appellant to be right on the question of law, we think there is no reversible error in this case because it is not shown that Ford is actually receiving more than his net profit under the contract. Included in the amount of $17,925 is the cost of the pipe and the expense of installing it. That being-true, no reversible error has been shown.

(c) Finally, appellant says it was reversible error for the court to refuse to give its instruction to the effect that Ford was bound by ad the terms of the contract it signed whether Ford read the entire contract or not. This requested instruction refers to certain testimony indicating Ford did not read §§ 5 and 6 in the contract between appellant and Ford. Even though appellant technically may have been entitled to the above instruction it was harmless error for the court to refuse to give the same, and appellant has not been prejudiced. None of the questioned provisions of the contract were excluded from the record or from the consideration of the jury.

Finding no error, the judgment appealed from is in all parts affirmed. .

Affirmed.

Robinson, J. concurs.


text:
    Beggs v. Stalnaker.
    5-3120
    372 S. W. 2d 600
    Opinion delivered November 26, 1963.

      Pope, Pratt $ Shamburger, By: Richard L. Pratt and Joseph L. Buffalo, Jr., for appellant.

      Howell, Price é Worsham, for appellee.
   Jim Johnson, Associate Justice.

This suit involves personal injuries and property damage sustained by a driver and personal injuries sustained by a passenger in a car hit from the rear by a truck.

On June 17,1962, appellee Lucille Smith was driving-east on East Broadway Street in North Little Rock when she and the two cars ahead of hers stopped to permit another car to turn left off the street. Her mother, appellee Bertie Stalnaker, was a passenger. Appellant Carl Beggs, who was driving a dump truck, apparently had brake failure, was unable1 to stop and ran into the rear of appellees’ stopped automobile,, damaging the automobile and injuring appellees. Appellees filed separate suits against appellant which were consolidated for trial. Trial was held April 11, 1963. The jury returned a verdict of $5,000.00 for appellee Stalnaker and $22,500.00 for appellee Smith. From judgments on the verdicts, ■appellant has appealed, urging that the trial court erred in refusing to direct a verdict for appellant, errors in instructions, and that the verdicts were grossly excessive.

Appellant moved for a directed verdict, contending that appellees produced absolutely no evidence of any negligence on the part of appellant. (Appellant’s principal contention was that this was an unavoidable accident.)

Testimony by and on behalf of appellees established that the collision did occur, the damage to the automobile by testimony on before-and-after valuations of the car, the nature and extent of appellees’ injuries, diagnosis and prognosis. Virtually the only testimony offered by appellees relative to the truck was appellee Smith’s statements that, “I looked in the rear view mirror and about a block behind us this truck went through the intersection traveling at a normal rate of speed,” that there was no car to her right, also no traffic in the right hand lane (indicating that the truck could have turned right and avoided hitting the automobile), and, “Well, the truck hit us and the gravel spilled all over the street and it broke all the motor supports in my car and broke the seat track where mother was sitting and just pushed the. motor clear up into the front end where it caused the radiator to burst ...”

In a similar case this court held:

“It is insisted by the appellee that this proof falls short of establishing negligence, since the mechanical defect might have arisen suddenly and without fault on Rorke’s part. Even so it was not necessary for the plaintiff to anticipate and disprove this possible explanation. By statute every motor vehicle must be equipped with adequate brakes. Ark. Stats. 1947, § 75-724. It has often been held that proof of the violation of such a safety measure is evidence of negligence. Union Securities Co. v. Taylor, 185 Ark. 737, 48 S. W. 2d 1100; Kendrick v. Rankin, 219 Ark. 736, 244 S. W. 2d 495. The appellant’s testimony constituted substantial evidence to the effect that the statute had been violated; it was for the jury to say whether the defendant was guilty of negligence.” Brand v. Rorke, 225 Ark. 309, 280 S. W. 2d 906.

In addition to appellees’ testimony, there was some testimony adduced on behalf of appellant which tended to strengthen appellees’ case. Considering all the evidence, with every reasonable inference arising therefrom, in the light most favorable to appellees, as we do to determine whether a jury question was presented, Harrison v. State Farm Mutual Insurance Co., 230 Ark. 630, 326 S. W. 2d 803, we find that the trial court made no error in refusing to direct a verdict for appellant.

Appellant asserts that three of the court’s instructions to the jury were prejudicially erroneous. The first two recite the law requiring fitness of vehicles and brakes, and the third had to do with an element of damages. These three instructions were contended to be wrong not particularly because they were erroneous statements of the law but because there was no evidence in the case to justify the giving of such instructions. We do not agree. It is our view that two of the instructions complained of were absolutely necessary in order to fairly present appellees’ theory of the case to the jury for its consideration, and the third, though close, was supported by some competent evidence in the record.

Next appellant urges that the trial court erred as a matter of law by refusing to instruct the jury that in assessing damages to appellees’ automobile, the cost of repairs should be considered as evidence. The general rule is that the measure of damages for injury to an automobile is the difference between the market value of the automobile immediately before and after the collision. Payne v. Mosley, 204 Ark. 510, 162 S. W. 2d 889, Kane v. Carper-Dover Mercantile Co., 206 Ark. 674, 177 S. W. 2d 41. Two of appellees’ witnesses, used car dealers familiar with that particular car, testified on the market value of that car immediately before and immediately after the collision. It is true that, in the absence of such competent proof as to the amount of damages, the difference in market value before and after the collision may be established by proof of the total amount paid for repairs necessitated by the collision. Golenternek v. Kurth, 213 Ark. 643, 212 S. W. 2d 14, 3 A. L. R. 2d 593. In the instant case there was no repair bill in evidence, and although appellee Smith testified as to what she had so far paid for repairs, she also testified that repairs were not completed. In our opinion, the jury was presented with the best evidence available, that is, competent appraisals, and the trial court did not err in refusing to instruct the jury that they should consider the cost of repairs in assessing the property damage.

Appellant’s last point urged for reversal is that the verdicts are grossly excessive and are not supported by the evidence.

The jury returned a verdict of $5,000.00 for appellee Stalnaker. Mrs. Stalnaker, who is 76, was injured in the knee as well as receiving a strained neck. Immediately after the accident Mrs. Stalnaker was taken to the hospital where x-rays were taken and her leg bandaged, after which she was sent home. The following day her neck started hurting and became so painful that she went to an orthopedist the following day. His examination revealed that any attempt to turn her head left caused extreme complaint of pain and spasm of the muscle in the cervical spine; 'further, that she could not bow or bend her head backward. The doctor diagnosed the condition as a strain of the neck and prescribed special physiotherapy treatment at his office. She made 23 or 26 trips to the doctor’s office over a period of three or four months. The doctor testified that her injuries were very painful, that “all those areas of involvement are associated with pain.” At the time of trial Mrs. Stalnaker testified that, “My neck bothers me quite a bit;” that she was 75 at the time of the accident and had never had anything.wrong with her neck before the accident; that she was getting along pretty good, except when the weather declares otherwise, “then at night, [she] can’t sleep good.”

The jury returned a verdict of $22,500.00 in favor of appellee Smith, which included property damage. Two witnesses testified on the fair market value of appellee’s car before and after the accident, 'which placed the diminution in value at $1,275.00 to $1,300.00.

Mrs. Smith testified that immediately after the collision she couldn’t focus her eyes and that her neck hurt some but not a lot at that time. Nothing was done for it at the hospital and she went home with her mother. Two days later (when she could get an appointment), after suffering extreme pain, she went to an orthopedist. He testified that when he saw her she was holding her head up with her hands, that he made one lateral x-ray but was afraid to make a comprehensive x-ray study at that time because the necessary twisting or bending of her neck might aggravate a possible fracture or dislocation. . Her injuries were diagnosed as a sprain of her neck and strain of her back. She was hospitalized as soon as possible and placed in head traction for almost four weeks, with medication and, when able, physiotherapy which was continued during the next seven months. The doctor testified that he thought her back had recovered and that he didn’t think she had any permanent disability to her back. However, when asked if her neck had recovered, the doctor testified, “No, sir. I don’t think it ever will recover,” and estimated Mrs. Smith’s permanent partial disability at twenty or twenty-five percent. The doctor also testified that he did not anticipate surgery, that she probably will require sporadic treatment, and that, “All I know, these people learn to live with themselves like they do with arthritis. They learn to live with their pain.” Mrs. Smith was off work several months, at time of trial was still not working regularly on a full-time basis, still had to wear a cervical collar several days a week, and was not able to indulge in her avocations of fishing and driving.

“Under our well established rule the amount of recovery in these personal injury cases is for the jury’s fair determination and when supported by substantial testimony we do not disturb the verdict unless it is shown to have been influenced by prejudice and so grossly excessive as to shock the conscience of the court.” Grandbush v. Grimmett, 227 Ark. 197, 297 S. W. 2d 647.

From the testimony above and other testimony contained in the record not detailed here, we certainly cannot say that the amounts of the jury verdicts for 'Mrs. Stalnaker and Mrs. Smith are so grossly excessive as to shock the conscience of the court.

Affirmed.


author: Frank Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Gerard v. State.
    5088
    372 S. W. 2d 635
    Opinion delivered November 26, 1963.

      Sam Montgomery, for appellant.

      Bruce Bennett, Attorney General, by Richard B. Adhisson, Asst. Attorney General, for appellee.
   Frank Holt, Associate Justice.

Tbe appellant was charged with the offense of permitting gambling. The trial court, sitting as a jury, found the defendant guilty and fixed his punishment at a fine of one hundred dollars and costs and thirty days imprisonment, from which judgment comes this appeal.

For reversal appellant adamantly urges only the point that:

‘ ‘ The trial Court erred in not sustaining the motion of the defendant to quash and strike the testimony that was given by police officers who went upon the private property of the AMVET POST NO. 60, and made an arrest without a search warrant in violation of the Fourth Amendment to the Constitution of the United States of America, and in violation of Article 2, Section 15 of the Constitution of the State of Arkansas.”

We proceed to review the evidence in this case. Based upon “several reports that there was gambling-going on down there” at this club two officers, dressed in plain clothes and in accordance with a pre-arranged understanding with their superiors of the North Little Rock Police Department, appeared at the club room door about midnight of March 16, 1962 and sought admission. They had no search warrant. Upon the doorkeeper’s inquiry if they -were members, one of the officers represented that he knew the drummer in the band. The officers were admitted upon the payment of one dollar with the remark: “Go on in and have a good time.” They ordered mixed drinks and after a few minutes one of the officers inquired of the barmaid where his fellow officer had gone. She directed him to another room in the club where he saw his fellow officer and two other men playing cards with money and chips being used in the game. Based upon this observation five individuals, including the appellant, were placed under arrest and charged with violating the gambling laws. The officers seized as evidence the cards, chips and money which were made exhibits to their testimony at the trial of the case.

There were approximately fifty to sixty persons on the premises of the club, including several teenagers, where the officers observed the serving of mixed drinks and the gambling activity. Edward Boerner, Jr., aged nineteen (19), testified that on this occasion he sought and gained admittance without being a member. The officers did not identify themselves until they made the arrests and seized the evidence of gambling. When queried as to why they did not secure a search warrant, one of the officers testified that from their information they considered it unnecessary in order to gain admittance.

The record reflects that only two individuals, appellant and one other, appeared to be members of this club. There is no other evidence that those present were admitted under rights of membership. According to the officers the appellant said that “he was the operator and he had quite a bit of money involved in it and was going to get his money out of it.” Also, it “was the only way he had to make a living.” Based upon this evidence the appellant seeks to invoke the aid of our Federal and State Constitutions on the premise that this action of the police officers was an invasion of his privacy and, therefore, an unreasonable search and seizure.

We do not agree with appellant. We do not think that his constitutional rights as guaranteed by our Federal and State Constitutions were violated. From the evidence in this case it appears to us that the premises were not of a private nature. On the contrary, they were of such a nature that the general public, including teenagers, was indiscriminately admitted. The Constitutional guarantee against unreasonable search and seizure does not apply to entry into a public place. The right of these officers to be present on these premises and to perform their duty is succinctly expressed and approved by us in Albright v. Muncrief, 206 Ark. 319, 176 S. W. 2d 426, where we said:

“This court, in Van Hook v. Helena, 170 Ark. 1083, 282 S. W. 673, after quoting with approval from Boyd v. United States, 116 U. S. 616, 6 S. Ct. 524, 29 L. Ed. 746, said: ‘The protection of the search and seizure clause of the Constitution does not extend to the entry of an officer into a public place to make an arrest upon probable cause that an unlawful act is being committed there. The protection applies, not to all premises or property, bnt only to dwelling houses or other such private places.’ ”

Also, in the instant case no search was required and, therefore, the provisions of our Federal and State Constitutions are not applicable. The evidence secured by the police officers was open to the eye and hand. It was unnecessary to conduct a search. 47 Am. Jur., Search and Seizure, § 20, p. 516; 79 C.J.S., Searches and Seizures, § 9, p. 788 and § 69, p. 850; 89 A.. L. it. 2d p. 773; Ellison v. United States, 206 F. 2d 476 (1953). There was no exploratory search-by the', officers seeking to uncover and find any papers' and effects of the appellant which were hidden or concealed from their view. Officers of the law are not required to close their eyes and ignore such illegal activities after they are lawfully on the premises. McDonald v. United States, 166 F. 2d 957 (1947); Bonn v. State, (Alas. 1963) 372 P. 2d 785.

The appellant'' relies for reversal upon the recent decision of Mapp v. Ohio, 367 U. S. 643 (1961). In that case the appellant’s house was involved instead of a public place; the officers forcibly gained entrance against Miss Mapp’s protest; the officers'conducted an exploratory search of her residence in an effort to discover if a suspect was hiding there. In searching her residence they incidentally found secreted there pornographic material. The Supreme Court of the United States reversed her conviction of possession of such holding that the search and seizure by the local officers was unreasonable' and, thus, in violation of her constitutional rights. We recognize the force and effect of the Mapp case, however, the fact situation in the instant case does not call for its application. Therefore, there is not presented to us the “proper question” to re-examine our former decisions as announced by our caveat in Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, and reiterated in Stewart v. State, 233 Ark. 230, 343 S. W. 2d 568 and Burke v. State, 235 Ark. 882, 362 S. W. 2d 695.

As was said in Carroll v. United States, 267 U. S. 132, our Federal Constitution “does not denounce all searches or seizures, but only such as are unreasonable. * * * The Fourth Amendment is to be construed in the light of what was deemed an unreasonable search and seizure when it was adopted, and in the manner which will conserve public interests as well as the interests and rights of individual citizens.” See also 47 Am. Jur., Search and Seizure, § 52, p. 532; Van Hook v. Helena, supra; State v. Blood, (Kan. 1963) 378 P. 2d 548; Commonwealth v. Tanchyn, (Penn. 1963) 188 A. 2d 824.

When we view the Fourth Amendment of our Federal Constitution and Article 2, § 15 of our State Constitution [which is essentially in the same language] in this light we are of the opinion there was no invasion of appellant’s privacy in the case at bar.

Affirmed.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice

(concurring). I agree with all that is stated in the Majority Opinion; and the purpose of this concurrence is to add another reason why I think this case should be affirmed, even in the face of the strong insistence of appellant that the club was a “private place.”

The evidence shows that the entry into the club was obtained by permission. The officers told the man at the door that they knew the drummer in the band (which the evidence shows that they did), and then the officers paid the man at the door a dollar as admission fee and he told them: “Go in and have a good time.” So the officers gained entrance by permission, without misrepresentation; therefore, they were not trespassers.

In 79 C.J.S. page 831, “Searches and Seizures” § 66, cases from various jurisdictions are cited to sustain this text:

“The constitutional provisions against unreasonable searches and seizures do not prohibit a search without a search warrant that does not constitute a trespass. Hence, the obtaining of information by the eye, where it is not aided by a trespass, does not constitute an unlawful search, since no search is involved, and the use of a flashlight or searchlight in aid of vision does not render it illegal. The constitutional guaranty does not prohibit a seizure, without a search warrant, where the articles sought are disclosed to any one of the senses; ...”

Therefore, even if the club had been a private club, my point is that the officers gained entrance by permission and were not trespassers and the constitutional provisions, against unreasonable search and,seizure, afford the appellant no shield in this case.

       “[Unreasonable searches and seizures.]—The right of the people to be secure in their persons, houses, papers, and effects, against um-easonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or thing's to be seized.”

       “§15. Unreasonable searches and seizures.—The right of the people of this State to be secure in their persons, houses, papers and effects against unreasonable searches and seizures shall not be violated; and no warrant shall issue except upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.”