author: Paul Ward, Associate Justice. Robinson, J.,

text:
    Black v. Morton.
    5-2272
    343 S. W. 2d 437
    Opinion delivered February 27, 1961.

      Alston Jennings, Sol Russell, C. Byron Smith, Jr. and Reed W. Thompson, for appellant.

      Langston S Walker and L. A. Hardin, for appellee.
   Paul Ward, Associate Justice.

In this litigation the will of Ward M. Black, deceased, is being contested on the ground of forgery. Black died November, 1958 and letters of administration were taken out shortly thereafter. Numerous steps were taken and orders entered relative to the administration of the estate over a period of some ten months before a purported will of the deceased was found and offered for probate on October 1, 1959 by one of the legatees. Then, on October 20, 1959, the brother and sole heir of the deceased together with a nephew of the deceased filed the contest heretofore mentioned.

After extensive hearings, the trial court held the will valid, and the contestants now prosecute this appeal seeking a reversal.

At the outset we are met with a Motion by appellees (the proponents of the will) to dismiss the appeal on the ground that appellants have filed only a partial record and failed to designate the points relied on for a reversal as required by statute. We see no merit in said Motion under the facts in this case.

As previously stated, this is a will contest, incidental only to the matter of the administration of the estate of Ward M. Black. It is appellees’ contention that the appeal record is a “partial record” since it does not contain 48 orders, notices, affidavits, petitions, bonds, etc., all dealing with some feature of the administration of the estate but in no way bearing on the will contest. Many of the above items were filed before the will was offered for probate, and others were filed after the notice of appeal was given by appellants on June 14, 1960. We find that appellants have included in their record all matters pertaining to the will contest, and that, therefore, it is a complete record and not a partial record. If it were a partial record (as contemplated by the statutes) then appellants would have had to designate the points relied on under Ark. Stats., § 27-2127.5. A portion of this section reads: “If the appellant does not designate for inclusion the complete record all the proceedings and evidence in the action ...” (Emphasis supplied.) We think the word “action” as used above means, in this case, the will contest, and that it cannot reasonably be interpreted to include all matters relating solely to the administration of the estate. This interpretation is supported by Section 16 of Act 140 of 1949, often referred to as the Probate Code. (See: Ark. Stats., § 62-2016, sub. c). The above section recognizes a certain measure of separation between the administration of an estate on the one hand and the probation of a will on the other, where both features are united in the same proceeding.

For reasons hereafter appearing we attempt no final determination on the merits of the issue involved, and we accordingly set out only such a general summation of the facts as is necessary to clarify the conclusion we have reached.

The deceased left an estate, both real and personal, amounting to approximately $100,000. The purported will left real estate valued at about $10,000 to two cousins, real estate valued at about $6,000 to a brother (heretofore mentioned); securities valued at about $4,000 to a nephew (heretofore mentioned); one thousand dollars ($1,000) in cash to each of two sisters-in-law, and; a drug store (with contents) and cash valued at about $75,000 to one Cecil E. Morton. Morton, who had once been convicted of a felony, was no relation of the deceased but he had worked for the deceased in the drug store for several years, first drawing $35 per week and later $45 per week, and was so employed at the time of the death of Ward M. Black.

On behalf of the proponents of the will there was testimony by the two attesting witnesses that the will was signed by the deceased in his drug store, and a handwriting expert and other lay witnesses were of the opinion that the name of the deceased on the purported will was genuine, and a typewriter was exhibited which, as both sides agree, was used to type the body of the will. It is also conceded that the purported will is a carbon copy, both as to the body of the will and all signatures thereon.

On behalf of the contestants an expert witness, who made and exhibited numerous enlarged pictures of the purported signature of the deceased on the purported will together with admitted signatures, gave as his opinion that said purported signature of the deceased was a forgery. It was also shown that the deceased always (with one exception) signed his name as “Ward M. Black” while the signature on the purported will was “W. M. Black.” The exception mentioned above relates to Order Forms for Opium furnished the deceased by the U. S. Internal Bevenue Department. There appear in the record as exhibits five used books of these forms containing carbon copies of the originals which had been, issued. All these carbon copies show the signature “W. M. Black,” presumably because the books were issued that way. One or two of these carbon copies, which are numbered in numerical sequences, are missing, and the originals have not been located, or at least they are not in the record. The signatures on these copies and the signature on the purported will bear a remarkable resemblance. There are other facts and circumstances which appellants contend indicate forgery.

Near the end of the trial appellants offered to introduce certain newly discovered evidence relating to the typewriter (mentioned above) tending to shed new light on the vital question involved. The trial court refused to allow appellants time to produce this evidence, and we think, under the circumstances, this was an error which calls for a remand. The ex-wife of the principal beneficiary testified that she loaned the typewriter to the deceased about the first of July, 1958 and got it back in November of that year. The proffered evidence was to the effect that this could not possibly have occurred. Since the testimony is so conflicting and the implication so personal, we feel that justice demands further development of the case along the lines indicated and in any other respect desired by either side.

On remand the trial court will have an opportunity to reexamine its original decree in the light of any new testimony which may be considered along with the record before us at this time.

The Motion is denied and the cause is remanded for the reason and purposes above stated.

Holt, George Rose Smith and Robinson, JJ., dissent.

Robinson, J.,

dissenting. Oases of this kind are tried de novo in this Court, and from the record each Judge reaches his own conclusions as to the facts. I am thoroughly convinced that the purported will is a forgery. I would, therefore, without any further ado, reverse the judgment with instructions to find against the will.

In the first place, the alleged will was written on a typewriter; it is not the original, but is a carbon copy; likewise, the signatures of the purported maker and witnesses are carbon copies.

There is no substantial evidence that Mr. Black was especially fond of his employee, Morton, and no reason whatever is shown as to why Mr. Black would give Morton the great bulk of his estate in preference to his own relatives.

The alleged will is not properly punctuated, and in several places small letters are used where there should be capitals. “Securities” is spelled “security,s.” It appears that in all probability Mr. Black had an average education, but there is nothing to indicate that he knew how to use the technical words “devise and bequeath.” Those words are not used by laymen, .and yet the words were used in the purported will alleged to have been drawn by Mr. Black.

If Mr. Black had written the will in duplicate at his home, as contended by the proponents of the will, and had then carried it to his store, it is not likely that he would have taken the trouble to again place carbon paper between the original and the copy and sign it in that manner and then have the witnesses also sign in that manner. If he had wanted two copies, in my opinion he would have signed the two copies separately.

Although Mr. Black had a typewriter in his drug store, the will was not written on it, but was written on a typewriter found in the possession of the ex-wife of Cecil Morton, the principal beneficiary named in the will. The typewriter was located by proponents of the will, and there is absolutely no explanation of how they knew Mrs. Morton had the typewriter on which the purported will was written.

It is claimed by proponents of the will that Mr. Black gave the will to Hodge, one of the alleged witnesses to it,, and told him to keep it between eight months and a year after Black’s death and then give it to Clio Thompson,. one of the alleged beneficiaries. There is nothing to indicate why Mr. Black would think that Hodge would outlive him. Of course, if such a thing had happened, and I don’t believe one word of it, Hodge could have placed the will anywhere and if he had died first, in all probability the Black will would never have come to light. No sane person would have handled an important will disposing of a vast estate in such a manner, and there is nothing to indicate that Mr. Black was not of sound mind.

Mr. Black died on the 19th day of November, 1958, and this will was not filed for probate until the 1st day of October, 1959. Hodge claims that he kept it a secret that he had the will for such a long time because Mr. Black had instructed him to do so. In my opinion this is not trae. Ib fact, I don’t believe the purported will was in existence at the time of Black’s death.

A will conceded to be Mr. Black’s genuine will of a prior date was found in his safe at his drug store, the place where one would expect to find his will. This will was ineffective because the sole beneficiary predeceased Mr. Black. It was signed “Ward M. Black,” not “ W. M. Black.” Mr. Black always signed his name “Ward M. Black” except on orders for narcotics, and two copies of such signed orders are missing from the files in the drug store.

Charles Andrew Appel, a highly qualified handwriting expert, testified convincingly that the signature of the maker is a forgery.

Perhaps I have expressed my opinion that the will is a forgery in rather strong language, and I feel that I should add that it is perfectly clear from the record that the attorneys in the case have done nothing except what they should have done, and that is to represent their clients to the best of their ability.

For the reasons set out herein, I respectfully dissent, .and I am authorized to say that Mr. Justice Holt and Mr. Justice George Bose Smith join in this dissent.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Watson v. Jones.
    5-2283
    343 S. W. 2d 415
    Opinion delivered February 27, 1961.

      O. E. Gates, for appellant.

      Max M. Smith, for appellee.
   Sam Robinson, Associate Justice.

This appeal arises out of a judgment rendered in the trial court pursuant to the Declaratory Judgment Act (Ark. Stats., § 34-2501 et seq.).

The record reflects that appellant, Edgar Ray Watson, was an employee of the appellees, Fred T. Jones and Leroy Boyd, in August, 1958, when in the course of his employment he injured the little finger of his left hand.

A claim was filed against appellees before the Workmen’s Compensation Commission. The hearing before a Commission Referee resulted in an award in favor of appellant for disability benefits, doctor and hospital bills, attorney’s fee and costs in a total amount of $890.54. No appeal was taken from this award and appellant filed same of record on the judgment docket of Cleveland County. Writs of execution and garnishment were issued and the Bank of Rison filed an answer stating it had funds on deposit in the name of “Roy Boyd” and another as a joint account.

The record further shows that appellees paid to the circuit clerk $890.54 and that the judgment was satisfied of record, the money being held on deposit by the clerk. Appellant filed a motion for a rule on the clerk asking that the clerk be ordered to pay over the said snm to the proper persons, namely, the appellant, his doctor, attorney, the hospital, and court reporter.

In the meantime, appellees had filed a motion for declaratory judgment in the circuit court, alleging that they had provided compensation under a policy of insurance with Mutual Benefit Health & Accident Association, and that under said policy $369.33 had been paid to appellant on the judgment. They further alleged that there was a dispute as to whether appellees were entitled to a credit on the judgment in this amount and asked the court to declare the rights of the parties.

The trial court found that appellant should not receive the entire proceeds deposited with the clerk in addition to those received from the insurance policy. This in effect gave appellees a credit in the amount of $369.33 toward the satisfaction of the judgment. From this ruling appellant has appealed. Appellant contends that the court erred in allowing appellees credit for the policy proceeds, in that the insurance policy did not protect the employer from liability arising under the Workmen’s Compensation law.

There is no transcript of the evidence introduced during the hearing in circuit court. The record does disclose that the trial court found that the amount paid to appellant from the proceeds of the insurance policy should be declared a credit on the judgment. This is not a case of the abbreviation of the record, as mentioned in Ark. Stats., § 27-2127.6. In the case at bar, no record was made in any manner of the evidence produced before the court. We have held in many instances that where there is a failure to bring into the record the testimony presented to the trial court, it must be conclusively presumed that the testimony supported the trial court’s findings. Riggs v. Tucker Duck & Rubber Co., 196 Ark. 571, 119 S. W. 2d 507; Haynie v. Dicus, 210 Ark. 1092, 199 S. W. 2d 954. For this reason we are unable to say that the finding of the trial court was not supported by substantial evidence.

Affirmed.

McFaddin, J., dissents.


author: Jim Johnson, Associate Justice.

text:
    Burnett v. Palmer.
    5-2303
    343 S. W. 2d 570
    Opinion delivered February 27, 1961.
    [Rehearing denied March 27, 1961.]

      Crouch, Jones, Blair and Cypert, for appellant.

      James R. Hale, for appellee.
   Jim Johnson, Associate Justice.

This is the second lawsuit filed by appellant, P. H. Burnett, against appellee, J. F. Palmer, in an effort to enforce the same cause of action. The action involves a debt which 3-Minute Car Wash, Inc., an Arkansas corporation, owed to First National Bank of Fayetteville. 3-Minute Car Wash, Inc., was organized prior to November 28, 1955, the appellant, P. H. Burnett, being the sole stockholder. Appellant had endorsed the corporation’s note in favor of the bank and upon insolvency of the corporation was required to pay the note.

On November 28, 1955, appellee and his wife entered into a written lease contract by the terms of which they leased certain real estate to 3-Minute Car Wash, Inc., for a term of ten (10) years at a rental of $250 per month.. Pursuant to this contract appellee constructed a building upon the land to be used by the corporation in conducting its car-washing business.

In order to obtain the necessary equipment with which to conduct its business, 3-Minute Car Wash, Inc., entered into a conditional sales contract for the purchase of such equipment. The seller of the equipment later assigned the contract to three different firms, i.e., Berkeley Wool Company, Dealers Discount Company, and First City National Bank of Houston, Texas. Each of these firms then demanded that 3-Minute Car Wash, Inc., make payments under the contract to it. On account of this dilemma, 3-Minute Car Wash, Inc., filed an inter-pleader suit in the United States District Court for the Western District of Arkansas impleading all of the claimants. Some payments under the contract were then paid into the registry of that court and ultimately' in April 1958, the three claimants above named attempted to make the appellee a party to that litigation by filing a joint counterclaim against him and his wife and causing him to be served with summons. 3-Minute Car Wash, Inc., had in the meantime become wholly insolvent.

The cross-claim against the appellee was dismissed on May 28, 1958, by the United States District Court. Appellee herein had in the meantime filed suit in the Washington Chancery Court against 3-Minute Car Wash, Inc., seeking judgment for the rent under the above lease and for foreclosure of his contractual lien upon all personal property upon the premises belonging to the corporation. A decree in that case was rendered in favor of appellee on May 3, 1958, for the sum of $15,331.14, and decreeing foreclosure of such lien. Berkeley Wool Company, Dealers Discount Company, and First City National Bank of Houston, Texas, were all made parties to that suit, and the appellee herein paid those firms a total of $3,000 in settlement of all of their claims to the personal property involved.

As stated above, 3-Minute Car Wash, Inc., became insolvent while the litigation in Federal Court was pending. The record reflects that appellee, in an effort to salvage for everyone as much as he could out of the overall transaction, accepted a power of attorney from the appellant which authorized appellee to take over the entire assets of the corporation and attempt to effect a sale or lease of same. That instrument was prepared by appellant’s attorney and was signed on September 25, 1957. The next day appellant induced appellee to sign another instrument which under certain conditions would have, in effect, transferred to appellee the appellant’s indebtedness to First National Bank of Fayetteville.

On September 23, 1958, the appellant, relying upon the above described instruments, filed suit in "Washington Chancery Court against appellee, alleging the same identical cause of action as is involved herein. In fact, the complaint in that case and the complaint involved herein are practically verbatim. Appellant later amended his complaint in that action, then filed an Amended and Substituted Complaint. Appellee demurred to such Complaint and Amended and Substituted Complaint. On February 18, 1959, an order was entered sustaining the demurrer but giving appellant 15 days within which to plead further. On March 12, 1959, the appellant herein having failed to plead further, an order was entered dismissing the Complaint and Amended and Substituted Complaint. No appeal was taken by appellant from such order.

The instant suit, on the same cause of action, was filed by appellant in the Washington Circuit Court on March 21, 1959. As stated above, the complaint in this case is identical to the complaint and amended and substituted complaint involved in the action in the Washington Chancery Court above described. The appellee demurred to the complaint whereupon appellant amended. Appellee then filed a Motion to Dismiss thereby expressly pleading res judicata and attaching as exhibits to such motion certified copies of the entire record and all of the orders in the cause in the Washington Chancery Court above mentioned. Such motion was overruled by the trial court on November 2, 1959. Appellee then filed an answer, denying the allegations of the complaint and again expressly pleading res judicata, attaching to such answer certified copies of the entire record and all the orders in the cause in Chancery Court. The cause came on for trial to a jury on May 9, 1960. At the close of the plaintiff’s case the appellee moved for a directed verdict in his favor which motion was overruled. Appellee, inter alia, introduced in evidence the entire record and all the orders in the cause in Chancery Court. At the close of all the evidence the appellant moved for a directed verdict in his favor, and the Court, on his own motion, directed the jury to return a verdict in favor of the appellee. Judgment was then entered dismissing the complaint; hence this appeal.

For reversal, appellant contends that the trial court erred in directing a verdict for the appellee and argues in his reply brief a matter which was not in evidence before the Circuit Court and which is not in the record before us. Regardless of how meritorious such matter might have been had it properly been presented before the circuit court and this Court on appeal, we are prohibited from regarding the matter urged in the reply brief now. Gray v. Nations, 1 Pike, 557, 1 Ark. 557; Pickren v. Northcutt, 83 Ark. 49, 102 S. W. 708.

It is settled law in Arkansas that an order sustaining a demurrer to a complaint operates as an adjudication on the merits and bars a subsequent suit based on the same facts. This is the express holding in Thompson v. Semmes, 219 Ark. 66, 239 S. W. 2d 589, where this Court reviewed the Arkansas cases on the point and said:

“The well-established general rule is that a judgment sustaining a demurrer based on the ground that the complaint does not state facts sufficient to constitute a cause of action is an adjudication on the merits which bars another action on the same facts. 50 C.J.S., Judgments, Sec. 643b; 41 Am. Jur., Pleading, Sec. 251.

“This court has consistently followed the general rule. It was held in McNeese v. Raines, 182 Ark. 1091, 34 S. W. 2d 225, 226, that a circuit court judgment sustaining a demurrer to a complaint on the ground that it did not state facts sufficient to constitute a cause of action against the defendant was a final and appealable order and became a decision on the merits of the ease. The Court said: ‘It is well settled in this state that a judgment sustaining a demurrer is equally conclusive by way of estoppel of the facts admitted in the demurrer as a verdict finding the same fact would have been. The reason is that the judgment is upon the merits of the action as presented by the complaint and admitted by the demurrer is as effectual as if there had been a verdict upon the same facts, for they are established by way of record in either case. When the facts are established, the litigation as between the same parties and their privies is at an end. Therefore, when the party declines to plead further and judgment is rendered against him, it is a final judgment. (Citing cases.) Numerous other cases to the same effect might be cited, but the rule is so well settled as to render this unnecessary. ’ ”

It will be noted that the Court observed in the Thompson case, supra, that the rule is otherwise where the plaintiff fails on demurrer in the first action “from the omission of an essential allegation in his complaint which is fully supplied in the second suit.” But such is not the situation in the ease at bar. Here the appellant sets out in his complaint in circuit court the same identical allegations of liability, attached as exhibits to his complaint the same instruments, and sued the same person as in his suit in Chancery Court. No new party was added, nor were any new or different or additional allegations made. Moreover, no “omission of an essential allegation” was supplied in the complaint filed in circuit court. In view of these facts, when appellant failed or declined to appeal from the order of the Washington Chancery Court dismissing his complaint, that order constituted an adjudication on the merits barring the instant suit.

In the case of Luttrell v. Reynolds, 63 Ark. 254, 37 S. W. 1051, it was held by this Court that the trial court had erred in sustaining the demurrer, but notwithstanding this, the order sustaining the demurrer was held to constitute an adjudication on the merits of the controversy, and, therefore, barred a second suit on the same facts. In so doing, this Court, quoting from Freeman on Judgments, said:

“If any court errs in sustaining a demurrer and entering judgment for defendant thereon, when the complaint is sufficient, the judgment is, nevertheless, on the merits.”

Another case expressing the same rule is Barrentine v. Henry Wrape Co., 113 Ark. 196, 167 S. W. 1115, where the Court said:

“We have held that a judgment sustaining a demurrer is an adjudication of the case upon its merits, and that any error in rendering the judgment must be corrected by appeal.”

Application of these rules to the instant ease leads to the logical conclusion that the appellee’s plea of res judicata was a good plea, and a complete defense and bar to this action.

Affirmed.


author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice,

text:
    Cole v. Cole.
    5-2285
    343 S. W. 2d 561
    Opinion delivered March 6, 1961.

      Barber, Henry, Thurman & MeGaskill, for appellant.

      Mehaffy, Smith S Williams and B. Ben Allen, for appellee.
   Carleton Harris, Chief Justice.

This appeal questions the jurisdiction of the Pulaski Chancery Court in a divorce action. Viola Cole, appellee, instituted suit against appellant, Eichard L. Cole, on July 25, 1960, seeking an absolute divorce, and care and custody of the minor child of the parties, Larry Louin Cole. The complaint sought suit money, attorneys’ fees, and a reasonable amount for maintenance for appellee and the child during the pendency of the action. Appellant filed a motion to dismiss the complaint, alleging, that Mrs. Cole was at all times a resident of Woodruff County, Arkansas, was not domiciled in Pulaski County at the time of filing the complaint, and the Pulaski Chancery Court had no jurisdiction of the subject of the action. Upon hearing, the court overruled the motion to dismiss, ordered appellant to immediately pay to appellee the sum of $200, and further directed that Mr. Cole pay to Mrs. Cole the sum of $700 per month for temporary support while the action is pending. Prom the order so entered, appellant brings this appeal. The sole point relied upon for reversal is that Viola Cole was not a resident of Pulaski County, Arkansas, within the meaning of § 34-1204, Ark. Stats., (1947) Anno., and “the trial court had no jurisdiction of the cause.”

The proof in the record consisted only of the testimony of the parties to the action. The evidence shows that Mr. and Mrs. Cole were married in Kountz, Texas, on January 19, 1947; that following the marriage, they moved to Arkansas, near Cotton Plant, in Woodruff County. The parties continued to reside in the latter location until August, 1959, when Mrs. Cole went to Little Rock, rented an apartment at Rivercliff, and filed suit for divorce. After about six weeks, a reconciliation was effected, the suit was dismissed, and Mrs. Cole returned to her husband’s home in Woodruff County. In May, 1960, the parties again separated, and Mrs. Cole returned to the Rivercliff Apartments in Little Rock, filing a divorce action in June of that year. The parties again were reconciled, the suit dismissed, and appellee returned to Cotton Plant. On July 10th, Mrs. Cole packed her car, and again left her husband, driving to Little Rock with the five year old son; suit was instituted some two weeks later. According to her testimony, appellee moved to Little Rock because she could no longer live with her husband, could not find a suitable place in Woodruff County, and “if we were in Cotton Plant, we would be thrown together, and Mr. Cole would be there all the time, and I don’t think we would be out of our confusion, and I think it is better on the child. ’ ’ She further stated that her choice of Little Rock for her residence and home was also somewhat influenced by the fact that Little Rock is not too far from Cotton Plant, and Mr. Cole is able to visit with the boy. Mrs. Cole testified that she had often visited in Little Rock, was familiar with the city, and had friends located there. She stated that her brothers and sisters in Texas were all married, with their own homes, and that she desired to remain in Arkansas. The evidence reflects that Mrs. Cole and the son live at Coolwood Apartments, where she has a six months lease with an option to renew; she has opened a bank account, purchased a poll tax, and opened some charge accounts; has moved her church letter to the Pulaski Heights Methodist Church, and has enrolled her son in the Pulaski Heights Kindergarten.

Appellant states that Mrs. Cole’s actions “speak louder than her testimony, and clearly reflect her intent. Prior to this, Mrs. Cole had left on two previous occasions, and caused a divorce action to be filed in Pulaski County, but on these two occasions, and within a few weeks, she effected a reconciliation, and returned to their home in Cotton Plant.” He points out that her intention to make Little Rock her home lasted only so long as she stayed away from Mr. Cole; further, that she only brought a small part of her wearing apparel from Cotton Plant to Little Rock with her. Appellant argues that the evidence is insufficient "to show a bona fide intention at the time Mrs. Cole came to Little Rock, to permanently remain in Pulaski County, but rather, the residence she established was for the purpose of bringing her action for divorce.” He insists that this case is controlled by our decision in McLaughlin v. McLaughlin, 193 Ark. 207, 99 S. W. 2d 571.

We do not agree. Appellee, in her brief, points out some twelve factual differences between the McLaughlin case and the one at Bar. To mention a few, Mrs. McLaughlin was not living with her husband at the time she left Hot Springs and went to Little Rock, (both were living in the same hotel, but occupied different rooms), while here, the parties were occupying the same premises before Mrs. Cole left Cotton Plant. The McLaughlin record does not indicate that Mrs. McLaughlin sought, or obtained, any sort of permanent residential facilities, nor that she made any effort to participate in community affairs. Mainly, Mrs. Cole testified that she came to Little Rock with the intention of making this her home, and gave her reasons therefor, while Mrs. McLaughlin, when asked the question, "Is it your intention, when the suit is terminated, to live in Little Rock?”, answered, "I like Little Rock; I haven’t any home, I would just as soon live here as any place.” In that case, we said, "No certain length of time is necessary to fix the residence contemplated by the statute, but that residence must be such with the attendant circumstances surrounding its acquirement as to manifest a bona fide intention of making it a fixed and permanent place of abode.” See also Feldman v. Feldman, 205 Ark. 544, 169 S. W. 2d 866. Here, we think the attendant circumstances are consistent with Mrs. Cole’s stated intentions. Certainly, there is no significance in the fact that she had previously made two trips to Little Rock and instituted suit, subsequently returning to Cotton Plant, for where else would a wife go but to her husband’s home when a reconciliation was effected? Mrs. Cole explained that she did not take all of her personal articles because there was not sufficient room in the car. It is noticeable that in addition to clothing for herself and the boy, she also took dishes, linens, and hbusehold items that would be used in an apartment.

In Smith v. Smith, 219 Ark. 876, 245 S. W. 2d 207, involving the same question, we held that “where the testimony is conflicting and evenly balanced, and the Chancellor hears and observes the witnesses, we treat his findings on questions of fact as persuasive.” Here, we feel that the preponderance of the evidence clearly supports the findings of the Chancellor.

Affirmed.

McFaddin, J., dissents in part and concurs in part.

Ed. F. McFaddin, Associate Justice,

concurring and dissenting. I agree that the award of $700.00 per month to Mrs. Cole was proper and should be affirmed; but I cannot agree with that part of the majority opinion which holds that Mrs. Cole has proved that she is a resident of Pulaski County.

The majority opinion says, “The proof in the record consisted only of the testimony of the parties to the action.” Thus, the opinion shows on its face that there was no corroboration of Mrs. Cole’s testimony as to residence. Section 34-1208, Ark. Stats., says that the plaintiff must prove residence; and we have a long line of cases which hold that a divorce will not be granted upon the uncorroborated testimony of a party. See Goodlett v. Goodlett, 206 Ark. 1048, 178 S. W. 2d 666; Wood v. Wood, 232 Ark. 812, 340 S. W. 2d 393; and cases there cited. The effect of the majority opinion is to allow Mrs. Cole to proceed with her divorce suit with this opinion as full authority for her residence; and she will have established, without corroboration, one of the essentials for maintaining a divorce suit. By this “two-step” proceeding, she will have evaded our holdings which require corroboration. It is for this reason that I dissent.

Nevertheless, I would affirm the award of $700.00 per month to Mrs. Cole because I would treat this proceeding for temporary alimony as a suit for separate maintenance, which is a transitory cause of action. Separate maintenance may be awarded without corroborating evidence. See Wood v. Wood, 54 Ark. 172, 15 S. W. 459; Gilliam v. Gilliam, 232 Ark. 765, 340 S. W. 2d 272; see also, generally, 27 Am. Jur. 25, Husband and Wife, § 419.

       The amount of award is not questioned.

       § 34-1204. “The proceedings shall be in the county where the com_ plainant resides, and the process may be directed in the first instance to any county in the State, where the defendant may then reside.”

       Of course, corroboration was not necessary to enable Mrs. Cole to obtain the temporary order; likewise, her physical presence in Pulaski County was not questioned; only her intent to make it her home.


author: J. Seaborn Holt, Associate Justice.

text:
    U.S. Fidelity & Guaranty Co. v. Glenn.
    5-2313
    343 S. W. 2d 777
    Opinion delivered March 6, 1961.
    [Rehearing denied April 3, 1961.]

      Warner, Warner & Rag on, for appellant.

      Clayton N. Little and W. H. Enfield, for appellee.
   J. Seaborn Holt, Associate Justice.

On August 20, 1958, appellant, United States Fidelity and Guaranty Company, issued its family automobile liability insurance policy covering a 1954 Mercury sedan owned by Carl Glenn of Bentonville, Arkansas. The policy contained a provision in which it agreed to pay medical expenses up to $500.00 incurred under certain conditions. It is undisputed that on December 8, 1958, Carl Glenn’s stepson, Harold Headrick, who was a member of appellee’s household, was killed when a 1950 Ford sedan which he [Headrick] was driving at the time collided with a truck. Funeral expenses incurred by reason of young Head-rick’s death, exceeded $500.00. At the time of his death Harold Headrick was 20 years of age and about two months prior to this time he had purchased the 1950 Ford sedan, which he was driving when killed, from one Jimmy Cowan. It appears that Universal C. I. T. held a conditional sales contract on this 1950 Ford and Head-rick had made the two monthly payments coming due after Cowan had delivered possession of the car to him. The title certificate to this 1950 Ford was held by Universal C. I. T. and no formal assignment of it had been made to Headrick from Cowan or Universal C. I. T. prior to Headrick’s death.

Appellee, Carl Glenn, made demand on appellant company for medical payment in the amount of $500.00 under the terms of his policy. Appellant refused to pay for the reason that it is undisputed Harold Headrick’s death occurred while he ivas occupying the 1950 Ford sedan which was owned by him, or furnished to him, for his regular use and he was not occupying the 1954 Mercury automobile described in the insurance policy of appellant and was not covered thereby and therefore the funeral expenses arising from the accident were expressly excluded by the terms of the policy. A jury trial resulted in a verdict in favor of appellee for $500.00 and this appeal followed.

The material facts appear to be undisputed. For reversal appellant says: ‘ ‘ Since the automobile Harold Headrick was driving when killed was owned by him and was not described in the insurance policy, the policy specifically excludes plaintiff’s claim for medical payments as asserted in this action. Since the car Harold Headrick was driving when killed was not the automobile described in the policy, but was an automobile furnished for his regular use, the policy specifically excludes plaintiff’s claim for medical payments as asserted in this action.”

The. policy here contained the following exclusion clause: “Exclusions. This policy does not apply under Part II to bodily injury: * # * (b) sustained by the named insured or a relative (1) while occupying an automobile owned by or furnished for the regular use of either the named insured or any relative, other than an automobile defined herein as an ‘owned automobile.’ ”

The parties stipulated: “It is stipulated between the plaintiff and the defendant that Policy No. AF2506843 covered a 1954 Mercury hardtop automobile owned by the plaintiff, Carl Glenn; that on the date alleged in the complaint Harold Headrick, a stepson, a member of the household, was operating another •vehicle, a 1950 Ford automobile, and was killed in an accident about a mile and a half south of Bentonville; that Burns Funeral Home conducted the funeral services and that the funeral expenses were in excess of $500.00 and were paid by the plaintiff.”

The facts show that when the 1950 Ford ivas transferred from Cowan to Headrick it was financed with Universal C. I. T. Headrick did not have sufficient cash to pay C. I. T. the balance due so he agreed to take up the monthly payments and actually made them until his death. No change of the title certificate was made and if Headrick had failed to make the payments, then Cowan, if he desired, could and probably would have taken back the automobile, since he remained obligated to C. I. T. Complete possession, use and control over the automobile was transferred from Cowan to Headrick. Under these circumstances, Headrick had become the owner of the vehicle and any rights Cowan had were simply in the nature of a security interest to secure the unpaid balance of the purchase price.

Our Arkansas Uniform Sales Act, Ark. Stats., § 68-1418 provides: “Property in specific goods passes when parties so intended — . 1. Where there is a contract to sell specific or ascertained goods, the property in them is transferred to the buyer at such time as the parties to the contract intend it to be transferred. 2. For the purpose of ascertaining the intention of the parties, regard shall be had to the terms of the contract, the conduct of the parties, usages of trade and the circumstances of the case.” And Ark. Stats., § 68-1419 provides: “Rules for ascertaining intention — . Unless a different intention appears, the following are rules for ascertaining the intention of the parties as to the time at which the property in the goods is to pass to the buyer. Rule 1. Where there is an unconditional contract to sell specific goods, in a deliverable state, the property in the goods passes to the buyer when the contract is made and it is immaterial whether the time of payment, or the time of delivery, or both, be postponed.” The agreement between Cowan and Headrick involved a specific article, in a deliverable state, and possession was actually delivered. Payments as agreed were made until Headrick’s untimely death. Headrick had the present use and enjoyment of the car.

In short, it is clear that the deceased, Harold Head-rick, and Jimmy Cowan had agreed to a sale of the 1950 Ford from Cowan to Headrick some two months before the accident resulting in Headrick’s death and possession of the car was turned over to Headrick. We think the uncontradicted evidence shows that the parties here intended a sale of the ear in question, that unconditional possession was delivered to Headrick pursuant to the sales agreement and that Headrick, following the sale, made the monthly payments, prior to his death, on the purchase price of the vehicle in accordance with his agreement with Cowan. Therefore, we hold that the ownership of the automobile passed to Headrick at that time. The exclusion clause above is applicable and we hold the trial court erred in not directing a verdict in favor of the appellant.

Accordingly, the judgment is reversed, and since the cause seems to have been fully developed it will be dismissed.


text:
    Von Tungeln v. Chapman.
    5-2337
    343 S. W. 2d 782
    Opinion delivered March 6, 1961.
    [Rehearing denied April 3, 1961.]

      Brockman <& Brockman, for appellant.

      Max M. Smith, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action for the partition of certain lands and a cross-complaint filed for an accounting of the assets of an estate. Material facts in the case disclose that Mrs. Nancy Chapman was an elderly, illiterate widow. After her children were grown and married, she moved from her home place and lived with her daughter, Bertha Reed. Mrs. Chapman lived with her daughter from this time until her death, a period of twelve to fourteen years. Mrs. Reed cared for her mother’s financial affairs during this time, as her mother could neither read nor write. After the death of Mrs. Chapman, a son, H. E. Chapman, filed a petition in chancery court for the partition of the land which Mrs. Chapman died seized of. As the family interest, ownership, and pleadings began to unwind, it developed that Mrs. Chapman had received several sums of money from the sale of timber and gravel on the tract of land involved and further, that she had inherited $2,900.00 from a brother who died in Oklahoma. When this was learned, several of the heirs, who were defendants, filed a cross-complaint against Mrs. Reed for an accounting and to have Mrs. Reed declared a constructive trustee for any sums of money which might be due the defendants. The cross-complaint averred that the money had been deposited in a savings and loan association in Pine Bluff and Mrs. Reed had withdrawn the money and illegally distributed it among some of the heirs. A trial was had, after which the chancellor ordered the land sold and the proceeds distributed to the heirs. He further found that the sums of money of Mrs. Chapman, which had been deposited in a savings account, were placed in a joint account at the time of creation of the account and that Mrs. Reed, by virtue of this, had a right of survivorship to the sums. It is from this latter finding that the appellants appeal.

The evidence discloses that Mrs. Chapman opened a joint account with her daughter, Mrs. Reed, at the-Southern Federal Savings and Loan Association in Pine Bluff. At the time of Mrs. Chapman’s death there was in the savings account approximately $1,900.00, according to Mrs. Reed who made all the deposits and withdrawals. After the death of her mother, Mrs. Reed took certain proceeds of the account and distributed them to her brother and three sisters in the amount of $332.40 each. The daughter of a deceased sister was offered $54.25. The remainder was transferred by Mrs. Reed to-an account in her name.

Ark. Stats. Anno., (1947) § 67-521 provides that when two persons deposit money in a savings institution in a form to be paid to either, or the survivor of them, such deposits shall become the property of the depositors as joint tenants. This court has previously held that the statute was passed primarily for the protection of the savings institution involved, Black v. Black, 199 Ark. 609, 135 S. W. 2d 837, and that as between the parties no such relationship is created if a contrary intent appears. Park v. McClemens, Ex., 231 Ark. 983, 334 S. W. 2d 709. The Park case collects and reviews the-authorities on the subject thoroughly and reference-should be had to that case for the development of the intent rule.

Reviewing the evidence on trial de novo here, we find the record utterly bare of evidence to overcome the prima facie intent which we hold the signature card creates as to the existence of a joint tenancy. The only thread of evidence which the record contains is the testimony of an interested witness, Mrs. Yon Tungeln who stated her mother told her shortly before her death, “I have something I want to show you [the savings certificates]. I don’t think I will live much longer. I am going to die and you will inherit some money, and I want you to buy some furniture.” Y7e find such testimony insufficient to overcome the clear intention expressed on the signature card and the savings certificates both of which are made out to Mrs. N. C. Chapman or Mrs. Bertha Reed. The signature card, which is signed by both Mrs. Chapman and Mrs. Reed, declares an intent to create a joint account.

There being a lack of evidence to overcome the intent expressed on the signature card and savings certificates, the judgment is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Gorenflo v. Brown.
    5-2304
    343 S. W. 2d 564
    Opinion delivered March 6, 1961.

      Cockrill, Laser S McGehee, by Hotvard Cockrill, for appellant.

      H. B. Stubblefield, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a suit filed by appellee Brown against appellants, Gorenflo and wife, seeking to have the Court declare and enforce a resulting trust upon a deed which is absolute on its face. The Chancery Court granted the Plaintiff the prayed relief and the defendants prosecute this appeal.

The land involved is a tract of 120 acres, called the “Old Home Place,” which has been in the Brown family for several generations. In 1954, prior to the transaction here involved, Mr. Fred I. Brown, Sr. owned three-fourths interest, and the remaining one-fourth interest (subject to the dower and homestead of their mother) was owned in equal parts by five Brown children, being (appellee) Gordon G. Brown, (appellant) Mrs. Madolyn Brown Gorenflo, and their three brothers. Appellee, Gordon Brown, a bachelor, lived on the land with his mother; the Gorenflos lived in Buffalo, New York; and Mrs. Gorenflo made annual visits to Arkansas.

In 1954, Madolyn Gorenflo and her brother, Gordon Brown, negotiated with their uncle, Mr. Fred I. Brown, Sr.; and as a result Mr. Fred I. Brown, Sr. conveyed to the Gorenflos all of his undivided three-fourths interest for a consideration of $20,000.00, of which amount $5,000.00 was paid in cash by the Gorenflos and the balance was evidenced by the note and mortgage of the Gorenflos for $15,000.00, payable on or before fifteen years, and bearing interest at four per cent, per annum payable semi-annually. It is on the conveyance, evidenced by this deed from Fred I. Brown, Sr. to the Gorenflos, that Gordon Brown seeks to impose a resulting trust in his favor. In his complaint, and in his testimony, he claimed that the Gorenflos purchased this three-fourths interest for him, and that he was to pay the full consideration of $20,000.00, plus interest; and that the title was taken in the name of the Gorenflos since he did not have the $5,000.00 to make the down payment. The Gorenflos, in addition to pleading the statute of frauds (§ 38-101, Ark. Stats.), claimed that Gordon Brown was to have only an undivided one-half interest in the three-fourths interest, and that he was to pay one-half of the $20,000.00 consideration of the Fred I. Brown, Sr. deed.

Trial in-'the Chancery court resulted in a decree that all right, title, and interest of the Gorenflos in and to the three-fourths interest conveyed by Fred I. Brown, Sr. to them should be vested in Gordon G. Brown, upon payment into the Court of the $5,310.00 tendered by Gordon Brown (the balance due on the $5,000.00 down payment, plus four per cent interest), and the agreement by him to pay the $15,000.00 and interest (the balance due on the Fred I. Brown, Sr. note and mortgage). From such decree, the Gorenflos prosecute this appeal and list three points.

I. Appellants Say: “Appellee’s Evidence Is Unsatisfactory on The Whole, And Is Insufficient To Establish His Alleged Oral Agreement And The Resulting Trust Sought To Be Imposed.’’ The first question to consider is, whether the trust which Brown seeks to have declared is barred by the statute of frauds (§ 38-101, Ark. Stats.) since it was not in writing. We conclude that the trust here sought to be imposed is a resulting trust, and is not required to be in writing since § 38-107, Ark. Stats, exempts resulting trusts from § 38-101. Bray v. Timms, 162 Ark. 247, 258 S. W. 338; Harbour v. Harbour, 207 Ark. 551, 181 S. W. 2d 805. To review all of our cases on resulting trusts would be a work of supererogation, but we have two comparatively recent cases with factual situations very similar to the case at bar. They are Crain v. Keenan, 218 Ark. 301, 236 S. W. 2d 731; and Payne v. Box, 231 Ark. 301, 329 S. W. 2d 181.

In Crain v. Keenan, supra, Crain claimed that the Keenans were to buy land for him, taking the title in their names, and to convey to him when he paid them. The Keenans claimed that they purchased the land for themselves, and merely rented to Crain; and they pleaded the statute of frauds (§ 38-101, Ark. Stats.). We held the transaction between Crain and the Keenans was a resulting trust and that the statute of frauds did not apply. Likewise, in Payne v. Box, supra, it was shown that Box purchased the land for Payne but had the deed made to Box to hold title until Payne should repay him; and we held that the transaction was a resulting trust for Payne, which trust we enforced upon Payne’s payment to Box of the amount due and interest. In addition to our own cases, the authorities generally are to the same effect. In 54 Am. Jur. 163, Trusts, § 210, cases from many jurisdictions are cited to sustain the text: “Where money is borrowed to purchase property, the lender taking legal title to the land in his own name to secure the loan, a resulting trust in the property, binding the lender in favor of the borrower, arises.”

We now examine the evidence to see if Brown has established the trust by evidence that is full, clear and convincing. Frazier v. Hanes, 220 Ark. 765, 249 S. W. 2d 842. Gordon Brown testified that he and his sister went to the office of Mr. Fred I. Brown, Sr., and initiated the negotiations that led to the conveyance of the property; and Gordon Brown claimed unequivocally that, “We went down in the summer of 1954, and approached my Uncle. The first thing she (Mrs. Gorenflo) said was, ‘I came down here to see if we can tie up the old home place for Gordon. Gordon wants to buy the old home place. ’ My uncle said how much he wanted for it. . . We said, ‘How about $20,000.00?’, and he said, ‘O.K.’. .. We agreed on four per cent interest. The deal was not closed as Madolyn (i.e. Mrs. Gorenflo) said, ‘I will have to go back and talk to Tony (i.e. her husband) and see if he will put up the down payment and let Gordon pay you back $1,000.00 a year, or $15,000.00 on or before 1969.’. . . That was the agreement that was made, and the deal was closed. . .

“Q. And you say that the agreement was that they were making the loan to you so that you could acquire the property?

A. So I could keep the old home place as my own.

Q. When the money was paid back, the property would be deeded to you?

A. Yes, sir.”

Mr. Fred I. Brown, Sr. testified in person and by deposition, and gave this statement as to the transaction:

“In December, 1954, my wife and I executed a deed to Oscar B. Gorenflo and Madolyn E. Gorenflo, his wife, covering our interest in 120 acres of land, more or less, in Section 35, Township 1 North, Range 12 West, Pulaski County, Arkansas, known by the Browns as the ‘Old Home Place.’ The consideration for this deed was $20,000.00, of which $5,000.00 was paid in cash and $15,000.00 payable on or before fifteen years after date with interest thereon payable semi-annually. This deed was executed in keeping with an agreement made by my niece, Madolyn E. Gorenflo, my nephew, Gordon G. Brown, and me at a meeting in my office in the summer of 1954 and the agreement was that said lands conveyed were being purchased for my nephew, Gordon G. Brown, and the lands were conveyed to the Gorenflos as security for the money and credit which they were furnishing for my nephew, Gordon G. Brown.”

It is undisputed that Gordon Brown regularly paid to the Gorenflos all of the interest due on the Fred I. Brown, Sr. note, regularly paid all taxes and insurance, and continued to live on the place. Gordon Brown introduced two letters which his sister, Mrs. Gorenflo, wrote him. In June 1956 she said in part:

“Just a note to let you know that it is time again for another interest payment to Uncle Fred. Also I have been wanting to write and tell you that the taxes come to $132. Tony paid that so if you can will you send them both real soon. . . Also I think you should start paying us back our money now after two years and get in shape to meet the $15,000 in 15 years. You know that time will go fast. Maybe we could work out some plan like a bank. . . . Will close for now but send the money soon as Tony wants to mail it to him before the 1st.”

Then, in another letter in 1958, Mrs. Gorenflo said:

“Also in the last letter I sent you the amount of the taxes on the place that Tony paid before the 21 of April. If you don’t have the amount I will send it to you as Tony has the papers put away — it was around $300. Also don’t forget the July 1st date for interest money. Bo you ever see James, Billy, or Fred? . . . Now that Mother is gone you should start paying off on it each year — 15 years go by fast.”

As opposed to all of the testimony for the plaintiff, the Gorenflos at first denied that Brown had any interest in the property purchased from Fred I. Brown, Sr.; but, in her testimony, Mrs. Gorenflo took the position that she and her brother, Gordon Brown were to be equal owners of the interest purchased from Fred I. Brown, Sr., and she introduced a letter that Gordon Brown wrote her under date of January 19, 1955, which contained this language:

“In reply to your letter of January 4th find enclosed paid receipt for 1 year for $7,500.00 insurance on the house. This insurance is for 5 years, and will be a little cheaper next year. Tony do you want one half interest in this deal or do you want me to pay you 4% interest on the $4,100 that you have tied up. If we go in on a 50% deal I think I should only pay you interest on $2,050.00 and % interest to Uncle Fred, and % of taxes and % of insurance etc.

“If you do not want any interest in this deal I will mail you $382.00 for the 4% interest on $19,100 for 6 mon. and before Jan. 1 I will mail you $1382.00 for interest and $1000 is for principal.”

Mrs. Gorenflo claimed that she answered the letter in the affirmative; but Gordon Brown denied the receipt of any such answer. Mrs. Gorenflo’s explanation as to why her brother paid all of the taxes and insurance and interest on the Fred I. Brown, Sr. note was because her brother was occupying the property and such payments constituted rent: and she used the letter that he wrote her to support her claim of equal ownership in the Fred I. Brown, Sr. deed. But to us, the letter that Gordon Brown wrote to his sister in 1955 and the subsequent conduct of the parties are strong circumstances to support Gordon Brown’s contention. It is evident from the letter that Brown offered his sister and her husband a one-half interest in the lands that were covered by the Fred I. Brown, Sr. deed, on condition that if the Gorenflos took the one-half interest, then Gordon Brown would only be required to pay one-half of the Fred I. Brown, Sr. interest, and one-half of the taxes and insurance. The evidence establishes that Gordon Brown continued to pay all of the Fred I. Brown, Sr. interest, all of the taxes, and all of the insurance. So it seems clear that the Gorenflos never accepted Gordon Brown’s proposition as contained in the letter. Furthermore, the letters that Mrs. Gorenflo wrote to Gordon in 1956 and 1958 show that she was, all the time, expecting to receive from Gordon Brown all of the interest on the Fred I. Brown, Sr. note, and all of the taxes; and her letters go far to disprove her own testimony.

The evidence shows that the mother of Gordon Brown and Mrs. Gorenflo passed away in 1957, at the age of eighty years. Gordon Brown remained a bachelor until after his mother’s death, and his sister, Mrs. Madolyn Gorenflo, was the beneficiary in his life insurance policies and also the beneficiary under his then existing will. But after the death of his mother he married and has a child; and it is reasonable that Mrs. Gorenflo’s attitude took a decided change. During all the years from 1954 to the present, Gordon Brown has continued to live on the property and has made substantial and valuable improvements, more consistent with Ms claim of ownership than with any other hypothesis. After a thorough review of all of the evidence, we conclude that Gordon Brown met the heavy burden imposed on him.

II. Appellants Say: “The Evidence Relied Upon By Appellee To Corroborate His Testimony Equally Supports The Claim Of Appellants; And Under The Law A Resulting Trust Will Not Be Imposed Where The Transaction Is As Consistent With Another Relationship.” We give no lengthy discussion to this point, because, as previously stated, the evidence convinced the Trial Court, and convinces us, that the appellee, Gordon Brown, met the heavy burden imposed upon him of proving the resulting trust by presenting the quantum of evidence required.

III. The Appellants Say: “Appellant Oscar B. Gorenflo Was Not A Party To Appellee’s Alleged Oral Agreement, He Did Not Know Of The Claim Until The Filing Of This Action And Therefore Did Not Acquiesce In Same, And He Cannot Be Bound Thereby.” As to this point, little need be said. When the original negotiations were made with Mr. Fred I. Brown, Sr., Mrs. Gorenflo returned to Buffalo and reported it all to her husband and he sent a $1000.00 check as earnest money to Gordon Brown for delivery to Mr. Fred I. Brown, Sr., and in the letter of transmittal, Mr. Gorenflo wrote to Gordon Brown: “I hope the enclosed check will be a ‘moving force’ in the right direction. I am an outsider — looking in, and feel and trust that you and Madolyn are doing the proper thing. Good luck, and keep me posted.” Furthermore, Mr. Gorenflo testified.: “Q. Whatever arrangement your wife had made here was agreeable to you? A. Absolutely.” It is clear that Mr. Gorenflo agreed to all that his wife did; and was as much obligated as she was.

Conclusion. After a thorough review of the entire record, we conclude that the decree of the Chancery Court should be affirmed.

       The result of the decree was to leave untouched the one-twentieth interest owned by Mrs. Gorenflo, as well as the one-twentieth interest owned by each of her brothers.

       For other authorities holding a resulting trust arises in similar factual situations, see Restatement of the Law of Trusts, 2d Ed., §§ 448 and 456, and see also annotations in 42 A.L.R. 21, 135 A.L.R. 234, and 27 A.L.R. 2d 1290.

       Although Mr. Gorenflo’s first name is Oscar, the witnesses called him “Tony.”

       It is undisputed that Gordon Brown sold timber from the land and sent $900.00 to the Gorenflos.


author: George Rose Smith, J.

text:
    Whelehon & Pepper v. State.
    5000
    343 S. W. 2d 563
    Opinion delivered March 6, 1961.
    No brief filed for appellant.

      J. Frank Holt, Attorney General, by Jack L. Lessen-berry, Asst. Attorney General.
   George Rose Smith, J.

The two appellants were each convicted of burglary and grand larceny and were sentenced to six years imprisonment upon each charge, the sentences to run consecutively. The record contains no motion for a new trial; so our review is limited to error appearing upon the face of the record. Holliman v. State, 213 Ark. 876, 213 S. W. 2d 617. We have examined the record proper and find it to be free from error.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Stewart v. State.
    5005
    343 S. W. 2d 568
    Opinion delivered March 6, 1961.

      Jerry Witt and B. Julian Glover, for appellant.

      J. Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   Paul Ward, Associate Justice.

On April 9, 1960 appellant was arrested on the charge of possessing beer in excess of the legal limit. On the 27th of the same month he was convicted in the Municipal Court of Mt. Ida and fined $100. On appeal to the Circuit Court the judgment of the lower court was affirmed. In each instance the sheriff of Montgomery County was the only witness to testify. It is not disputed that the evidence, if competent, is sufficient to sustain the conviction.

On appeal the only ground urged for a reversal is that the testimony was incompetent. This ground is presently explained.

On the same day that appellant was arrested the mayor issued a search warrant authorizing the sheriff to search the premises of appellant. It is contended that the search warrant was illegally issued. At the beginning of the trial in Circuit Court appellant filed a motion to quash said warrant and to declare inadmissible any testimony procured or introduced by virtue thereof.

Based on the above, appellant asks this court to do two things: One, declare the search warrant void; and Two, change our rule to conform with the Federal Rule and declare the sheriff’s testimony inadmissible. In respect to the latter, appellant points out that, in the case of Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, we said we would re-examine our former decisions on this rule regarding the admissibility of evidence obtained without a search warrant. However, for the reasons hereafter set out, we deem it unnecessary to consider the validity of the search warrant or to re-examine our decisions in the respect mentioned.

On the same day the mayor issued the search warrant he also issued a warrant for the arrest of appellant, and during the examination of the witness in the Circuit Court trial it was pointed out by appellant’s attorney that both warrants were issued at the same time. The evidence does not reveal from which exclusive source the sheriff obtained his information or in what order obtained. There is no contention here that the arrest warrant was illegal or irregular.

When the sheriff lawfully arrested appellant and found illegal beer on his premises and in his control the sheriff could also testify concerning the same. In the case of Knight v. State, 171 Ark. 882, 286 S. W. 1013, the court quoted with approval from Carroll v. United States, 267 U. S. 132, 45 Sup. Ct. 280, 69 L. Ed. 543, the following:

“AVhen a man is legally arrested for an offense, whatever is found upon his person or in his control which it is unlawful for him to have and which may be used to prove the offense, may be seized and held as evidence in the prosecution. * * * The right to search and the validity of the seizure are not dependent on the right to arrest. They are dependent on the reasonable cause the seizing officer has for belief that the contents of the automobile offend against the law.”

For similar holdings by this court see: Garner v. State, 184 Ark. 1093, 44 S. W. 2d 1092; and Reaves and Neal v. State, 229 Ark. 453, 316 S. W. 2d 824.

For reasons above stated the judgment of the trial court is affirmed.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Finley v. State.
    5006
    343 S. W. 2d 787
    Opinion delivered March 13, 1961.

      J. Hugh Wharton, for appellant.

      J. Frank Holt, Attorney General, hy Jack Holt, Jr., Asst. Attorney General, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Herbert Finley, Jr., was charged jointly with Arthur Hinton with the crime of Murder in the Second Degree, the Information alleging that they murdered J. C. Meeks on July 2,1960, by stabbing him to death. On September 27, 1960 (the date of the trial), Finley filed a motion asking that he be granted a severance and a separate trial. The motion was denied by the court, and the case tried. The jury found Finley guilty of the crime of Voluntary Manslaughter, and fixed his punishment at seven years imprisonment. From the judgment so entered, appellant brings this appeal. In his Motion for New Trial, appellant raises four assignments of error, the first three relating to the sufficiency of the evidence, and the fourth alleging error by the court in refusing to grant the Motion for Severance.

The testimony reflected that on the night of July 2, 1960, appellant, Hinton, Meeks, and others, were engaged in “shooting craps” in the colored restroom of the Last Chance Cafe near El Dorado. Meeks was rolling the dice, and an argument ensued between him and Hinton as to whether Meeks had “made his point.” Hinton picked up the money, and Meeks got out a knife. Appellant then entered into the argument on behalf of Hinton, and, according to Mose Turner, “I said, ‘J. C., they have a knife open for you,’ and they pushed me out the door, and when I got back, J. C. didn’t have a knife — Finley had his knife, and they had him over in the corner, and were cutting him when I got back in there.” Subsequently, according to the witness, the participants left the restroom and went outside, and Hinton again struck Meeks with a knife, the latter falling. Booker T. Owens testified that Finley also had an open knife on the outside, and the evidence reflected that appellant kicked Meeks while he was lying on the ground, and warned those standing around, “Don’t nobody touch him — let him lay there.” Finley and Hinton left in an automobile, and Meeks was later taken to the hospital by a bystander, but died as a result of the knife wounds sustained. Five witnesses testified, two of them stating that Meeks picked up a brickbat when he went outside; the others stated that they did not see a brickbat. There was no testimony that Meeks made any attack with the brickbat, or that he had made an attack with a knife upon Finley in the restroom. The proof reflects that, appellant used a knife in the restroom, and aided and participated in taking the life of the deceased; we are of the opinion that the evidence was sufficient to warrant, the jury in finding the killing unjustified, and in convicting appellant of the crime of Manslaughter. Under a long established rule, evidence submitted at a trial must, on appeal, be viewed in the light most favorable to the State, and if there is any substantial evidence to support the verdict of the jury, it will be sustained. Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374.

Arkansas Statutes (1947) Anno., Section 43-1802, provides, inter alia, that defendants charged with a felony less than capital, may be tried jointly or separately, in the discretion of the trial court, and we have held that the action of the court will not be disturbed unless it appears that there was an abuse of discretion. Nolan and Guthrie v. State, 205 Ark. 103, 167 S. W. 2d 503. Counsel for appellant does not specify wherein the court abused its discretion in refusing to grant a severance, and we find no evidence in the record to indicate that appellant was prejudiced by the refusal of the trial court to grant the motion. We hold this assignment to be without merit.

Finding no reversible error, the judgment is affirmed.

       “They” refers to the others standing around the “crap game”.. According to Turner: “I was in the door and they were trying to get. out.”

       Apparently Finley was using a knife that had been earlier taken, from Meeks.


text:
    Mack v. Cole.
    5-2329
    343 S. W. 2d 791
    Opinion delivered March 13, 1961.

      Fred A. Newth, Cooper Jacoway, for appellant.

      Howell, Price <& Worsham, for appellee.
   J. Seaborn Holt, Associate Justice.

This is an action to set aside a deed allegedly procured by fraud. The record reflects that at the conclusion of appellant’s testimony, the trial court sustained a demurrer by appellee to the plaintiff’s [appellant’s] evidence and dismissed appellant’s complaint. This appeal followed. It appears that only one point is in serious contention here and that is — had the appellant made out a prima facie case?

During the course of the trial, witnesses testified on behalf of appellant, in effect, that when the above deed was executed, there was an agreement between Mrs. Cole [appellee] and Mrs. Mack [appellant] that Mrs. Mack was to reserve a life estate in the land involved. It is undisputed that the deed given by Mrs. Mack to Mrs. Cole did not reserve a life estate but was, in fact, a warranty deed in fee simple absolute, subject to a mortgage. At the time the Macks signed the deed here in question, December 15, 1958, conveying the land to Sadie Cole, Bessie Mac was 72 years of age and her husband [now deceased] was 73 years of age.

As above indicated, the defendant, at the close of plaintiff’s [ appellant’s] evidence, demurred to appellant’s testimony and the trial court sustained this demurrer. "We think the court erred in so doing. Our rule is well established that we must view appellant’s testimony in its most favorable light to her and when after so viewing it a prima facie case is established, the demurrer should be overruled. After a review of all the testimony and giving to it its strongest probative force in favor of appellant, we think a prima facie case was established.

In Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, we •said: “What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in ■equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury, where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.” Further, in the case of Cunningham v. Chamblin, 227 Ark. 389, 299 S. W. 2d 89, we said: “We have held that a motion by the defendant for a ‘directed verdict’ at the close of plaintiff’s proof in a chancery case may be treated as one challenging the sufficiency of the evidence under Ark. Stats., § 27-1729; * * * It is also settled that, in passing on a demurrer to the evidence filed by a defendant under the statute, the chancellor must view the testimony in the light most favorable to the plaintiff, and if so viewed a prima facie case has been made then the demurrer should be overruled.” As we pointed out in the very recent case of Boland v. Bellis, 232 Ark. 644, 339 S. W. 2d 424, we are not here deciding what the chancery court would hold on a final weighing of the evidence in this case, we are simply holding that the trial court erred in sustaining appellee’s demurrer and motion to dismiss.

Accordingly, the decree is reversed and the cause remanded for further proceedings.

Robinson, J., dissents.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Harrison v. Cruse.
    5-2320
    343 S. W. 2d 789
    Opinion delivered March 13, 1961.

      John Wm. Murphy, Hubert L. Burch, for appellant.

      Greenhatv & Greenhaw, for appellee.
   Ed. F. MoFaddin, Associate Justice.

This appeal results from the unsuccessful effort of the appellant, Mr. Harrison, to have a resulting trust impressed on ■certain real and personal property. The appellees (defendants below) constitute the administrator and heirs at law of Mrs. Bess Yates, who died intestate on ■September 28, 1959, with the legal title to all of the properties in her name.

The defendants, in addition to pleading the “Dead Man’s Statute” (Section 2 of the Schedule of the Arkansas Constitution), also urged that Mr. Harrison had no interest in the properties; that there was no written contract between the parties; and that Mr. Harrison could not offer the quantum of evidence required to establish a trust. The Chancery Court, after hearing the testimony ore tenus, (a) dismissed that portion of the complaint which sought to impose a resulting trust; (b) awarded Mr. Harrison the title to certain cattle and other personal property; and (c) rendered a decree against Mr. Harrison for rents accrued after the death of Mrs. Tates. There is no cross-appeal by the appellees from the awards made to Mr. Harrison; but Mr. Harrison prosecutes this appeal and urges, inter alia, the matters herein to be discussed.

I. Appellant’s Claim Of A Resulting Trust. At the outset, we recognize the statement contained in Restatement of the Law of Trusts, 2d Ed. § 454: “Where a transfer of property is made to one person and a part of the purchase price is paid by another, a resulting trust arises in favor of the person by whom such payment is made in such proportion as the part paid by him bears to the total purchase price, unless he manifests an intention that no resulting trust should arise. . . .” We have held in a long line of cases that the evidence to establish a resulting trust must be clear, cogent, and convincing. See Nelson v. Wood, 199 Ark. 1019, 137 S. W. 2d 929; Frasier v. Hanes, 220 Ark. 765, 249 S. W. 2d 842; Neill v. Neill, 221 Ark. 893, 257 S. W. 2d 26. There were thus at least two essentials which Mr. Harrison must establish before he could claim a resulting trust. The first was that, when the property was transferred to Mrs. Yates, he paid a portion of the purchase price under an agreement then made that he would have an interest in the property; and, secondly, he must prove all of this by evidence that is “clear, cogent, and convincing.”

A careful review of the record convinces us that Mr. Harrison failed in both of the requirements. When he attempted to testify as to the conversations between him and Mrs. Yates, he was constantly met with Section 2 of the Schedule of the Arkansas Constitution, commonly called the “Dead Man’s Statute.” Furthermore, if such objection had never been made and we were free to consider all of Mr. Harrison’s offered testimony, we would nevertheless be of the opinion that he failed to offer the quantum of evidence required.

Mr. Harrison and Mrs. Yates, both past middle age, were friends and companions. For approximately twenty years they occupied the same house; but the bank account was in Mrs. Yates’ name. She was a widow and received a monthly pension check because of her husband’s governmental connection; and she also received a check for services in a local store. Mr. Harrison was for some years an electrician at the Veterans Administration. Then later he sold awnings and storm windows under the business name of Ozark Home Improvements. The only bank account Mr. Harrison ever had was in the said business name, and that account related only to the said business. From 1937 until 1948 Mr. Harrison worked at the Veterans Administration Hospital; and he testified that he endorsed all of his salary checks and Mrs. Yates deposited them in her bank account; and that the real and personal property was purchased in her name, when, in truth and in fact, he and Mrs. Yates were joint owners in equity, since he paid half of the purchase price of all properties. It was because of such testimony that Mr. Harrison sought to have a resulting trust imposed on the property, the legal title to which was in the name of Mrs. Yates.

Mr. Harrison worked as an electrician at the Veterans Administration Hospital from 1937 to 1948. His starting salary was $1,020.00 a year, and he was earning $2,780.00 annually when he resigned in 1948. He did not give the figures for each year, but if we take the average •of these amounts, it is $1,900.00 a year. That average of $1,900.00 a year for the twelve years that he worked would make a total of $22,800.00 for the twelve years. There is no substantial evidence anywhere in the record that Mr. Harrison had any other source of income except the amounts received from the Veterans Administration during the twelve years that he worked there. But he continued to live in the home with Mrs. Yates until her death in September, 1959. From January 1, 1937 to September 29, 1959 is a few days more than twenty-two years and eight months, or a total of 272 months. In that entire period of 272 months Mr. Harrison established a gross “take-home pay,” as previously calculated, of $22,800.00, which would be less than $84.00 per month for the 272 months from January 1, 1837 to September 29, 1959. This amount of $84.00 per month was just about enough to pay room and board to Mrs. Yates, and would certainly leave no substantial amount of Mr. Harrison’s money to be used in purchasing properties of any kind.

Furthermore, there were introduced into the record in this case original cheeks signed by Mrs. Bess Yates to Mr. Harrison, totalling $3,386.40; and these checks covered only the period from February 17, 1955 until the time of Mrs. Yates’ death in September, 1959. Thus, Mr. Harrison received from Mrs. Yates a substantial amount of money which he used in buying cattle and other items, all of which were awarded to him by the decree in this case. There are other facts in this record that he and Mrs. Yates bought a tract of property called, ‘ ‘ Green Acres ’ ’, for $2,000.00; and that they subsequently sold the property for $12,000.00 and used a large portion of the proceeds to buy savings and loan certificates in Mrs. Yates’ name. Mr. Harrison seeks to impress a resulting trust on these savings and loan certificates. But the record discloses that Mrs. Yates accounted on her individual income tax return for all the profit on this property; and that Mr. Harrison never made an income tax return during the entire period of time involved in this case. After studying all the record we reach the conclusion that Mr. Harrison failed to establish a trust.

II. The Judgment Against Mr. Harrison For Rents. The Chancery Court rendered a decree against Mr. Harrison for $700.00 for rentals accruing after the death of Mrs. Yates, plus $215.00 collected by Mr. Harrison since the death of Mrs. Yates, making a total of $915.00. From this amount certain items were to be deducted by the attorneys; so that the net amount of the decree against Mr. Harrison was $858.15.

With becoming candor the attorneys for the appellees state that there might have been some items overlooked, and they are willing that the decree be reduced by $125.00, which would leave a net decree against Mr. Harrison to be $733.15. We accept the good faith statement made by the attorneys for the appellees; and we affirm the decree in its entirety, except that we order a remittitur of $125.00 on the money decree rendered against Mr. Harrison. All costs of the appeal are to be taxed against the appellant.

       The germane portion reads: “. . . in actions by or against ■executors, administrators, or guardians in which judgment may be rendered for or against them, neither party shall be allowed to testify against the other as to any transactions with, or statements of, the testator, intestate, or ward, unless called to testify thereto by the ■opposite party . . .”


author: Geoege Rose Smith, J. Sam Robinson, Associate Justice,

text:
    White, County Treasurer v. Adams.
    5-2290
    343 S. W. 2d 793
    Opinion delivered March 13, 1961.

      Terry Shell, Prosecuting Attorney, by, Julian B. Fogleman, Deputy Prosecuting Attorney, for appellant.

      Atlee Harris, for appellee.
   Geoege Rose Smith, J.

By Act 48 of 1945 a privilege tax of $100 a week, payable to the county, was levied upon every person practising any form of fortune telling. Ark. Stats. 1947, § 84-1520. The appellee, a professional fortune teller, brought this suit to enjoin the officials of Crittenden county from collecting the tax and to obtain a decree declaring the statute to be unconstitutional. The principal attacks upon the act are, first, that the tax is so high as to demonstrate a legislative intention to prohibit rather than to regulate, and, second, that the act violates the due process and equal protection clauses of the Fourteenth Amendment. The chancellor held the act to be invalid and enjoined its enforcement.

The proof shows that the appellee has followed her trade in Crittenden county for at least two years. At first her income averaged more than $200 a week, and it is stipulated that for a period of 100 weeks the appellee compiled with the statute by paying privilege taxes totaling $10,000. Later on, however, several fortune tellers were licensed to practise in Memphis, across the river from Crittenden county, and as a result of this competition the appellee’s income declined to about $50 a week. This suit was then brought, upon the theory that the tax destroys the appellee’s right to engage in a lawful calling.

The fallacy in the appellee’s argument lies in its assumption that fortune telling is a vocation to be pursued as a matter of common right. It is not. The lawmakers are entitled to believe that no human being has the power of foretelling future events and that therefore fortune telling may be a fraudulent means of preying upon the ignorant, the superstitious, and the gullible. Consequently it has been uniformly held that the state, in the exercise of its police power, may constitutionally prohibit fortune telling altogether. Mitchell v. Birmingham, 222 Ala. 389, 133 So. 13; Williams v. Jenkins, 211 Ga. 10, 83 S. E. 2d 614; Davis v. State, 118 Ohio St. 25, 160 N. E. 473; State v. Neitzel, 69 Wash. 567, 125 P. 939, 43 L. R. A., N. S. 203, Ann. Cas. 1914A, 899.

If the legislature can absolutely forbid the practice of fortune telling, palmistry, and the like, it must logically follow that the same result may be achieved by the levy of a tax that is made so high as to prevent anyone from engaging in the business with profit. Bridewell v. Bessemer, 35 Ala. App. 337, 46 So. 2d 568. “The use of the taxing power to destroy a business which might be validly prohibited violates neither the due process nor the equal protection clause.” Morgan, Protection of Natural and Fundamental Eights, 2 Ark. L. Eev. 203, 210.

In citing a number of Arkansas cases the appellee overlooks the fact that the language which she considers to be favorable to her position had reference to occupations of common right. The distinction was clearly made in McGriff v. State, 212 Ark. 98, 204 S. W. 2d 885, where we invalidated a prohibitory tax upon the lawful business of photography. It was said: “A rule frequently emphasized is that when a legislative body having power to tax a certain subject matter actually imposes such a burdensome assessment as effectually to destroy the right to perform the act or use the property, then validity of the enactment depends upon the nature and character of the thing or operation destroyed. If so great an abuse of the taxing power is manifest as to render valueless natural and fundamental rights which no free government could consistently violate, it is the duty of the judiciary to hold such act unconstitutional.” A similar thought was expressed in Baldwin v. Blytheville, 212 Ark. 975, 208 S. W. 2d 458: “Second, it [the tax] must not be so excessive as to prevent one from engaging in a lawful occupation, or amount to the suppression of a business or occupation which is not in itself unlawful or injurious to public health or morals. Rogers v. Rogers, 174 Ark. 486, 295 S. W. 708; Helena v. Russworm, 190 Ark. 601, 79 S. W. 2d 995.”

On the other hand, where the occupation to be licensed is merely a privilege, such as the business of selling liquor, the issuance of the license is a matter “not of right, but purely of legislative grace, and may be extended, limited or denied without violating any constitutional right.” Blum v. Ford, 194 Ark. 393, 107 S. W. 2d 340.

The appellee also cites Conway v. Waddell, 90 Ark. 127, 118 S. W. 398. That case involved a tax upon peddling, which is not inherently injurious to the public welfare or morals, and, further, the opinion must be read in the light of later cases such as Ex parte Byles, 93 Ark. 612, 126 S. W. 94, 37 L. R. A., N. S. 774, and Davis v. Hot Springs, 141 Ark. 521, 529, 217 S. W. 769, 771. See also the discussion of the Conway case in Morgan’s article, supra, p. 210, and Penix, Tax Immunity of Natural or Common Rights in Arkansas, 2 Ark. L. Rev. 411, 414.

In adopting the statute now in question the General Assembly certainly knew that a weekly tax of $100 would effectively prohibit the practice of fortune telling in all the smaller communities of the state, where a palmist’s income could not be expected to equal the amount of the tax. Hence we must recognize the fact that the legislature undoubtedly intended for the statute to embody prohibition as well as regulation. Inasihuch as the vocation of fortune telling is not one of common right the appellee has no constitutional basis for challenging the tax.

Reversed and dismissed.

Holt and Robinson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting. The majority are holding to be valid a statute which permitted ‘ ‘ Madame Rose ’ ’ to ply her trade as long as she was very successful because she had no effective competition from fortune tellers in a sister state and she could therefore pay the enormously high tax of $100 per week, but when competition became keen and she could no longer pay the tax, she must go out of business. Evidently the legislature did not consider that fortune telling was inherently injurious to the public health and morals, or such occupation would have been prohibited altogether. This was not done. Successful fortune tellers can still operate. Madame Rose practiced her trade for about two years, during which time she paid taxes totaling about $10,000.

Act 236 of 1929 provides for a tax of $100 per year to be paid to the State for the privilege of telling fortunes. Act 48 of 1945 amended the 1929 act by providing for a county tax of $100 per week to be paid in addition to the $100 yearly State tax. Both acts declare it to be a privilege to practice fortune telling. Thus it is definite and certain that in providing for the tax the legislature relied on the State’s power to tax privileges. The power to tax a privilege is given to the legislature by Art. 16, § 5 of the Constitution of 1874. This section of the Constitution gives the legislature the power “to tax hawkers, peddlers, ferries, exhibitions and privileges. ’ ’

In Conway v. Waddell, 90 Ark. 127, 118 S. W. 398, the city of Conway had adopted an ordinance to regulate and license street peddling and provided a tax of $25 per day to obtain a license to peddle. This Court held that the tax was excessive and the ordinance was therefore void. This Court said: “There is no prohibition of the business, but an express permission to carry it on upon the conditions prescribed. The tax was manifestly both for the purpose of regulation and revenue. The title of the ordinance declares that it was for the purpose of license and regulation, but the council also had the power to tax for revenue. City of Little Rock v. Prather, 46 Ark. 478. Considered as an ordinance to license and to tax for regulation and also for revenue, it was void on its face. It is inconceivable that it would require the sum of $25 per day to reimburse the city for the expense of issuing the license and the efficient police surveillance of the business, and the amount is still unreasonable when, in addition to the above, it is considered as a tax for the purpose of raising revenue for the city. ’ ’ The Court points out that § 5438, Kirby’s Digest [Ark. Stats. 1947, § 19-203] gives cities and incorporated towns the power to tax peddlers and that the statute is authorized by Art. 16, § 5 of the Constitution. As above pointed out, this is the same section that authorizes a tax on fortune tellers. .

In the case at bar the State has not prohibited the exercise of the privilege of fortune telling, and the assumption that such was the intention of the legislature is not justified when it is considered that if prohibition had been the intention the legislature could have very easily so provided by adopting an act to that effect. In fact, an act prohibiting the practice altogether would require only a majority vote, whereas the act assessing the tax required three-fourths.

Although Art. 16, § 5 of our Constitution gives the legislature the power to tax privileges, peddlers, ferries, etc., it does not give the legislature the power to assess a tax so high as to effectively prevent all except the most favored and successful from engaging in such occupation. The majority attempt to distinguish the case at bar from McGriff v. State, 212 Ark. 98, 209 S. W. 2d 885. It is stated that in the McGriff case we held invalid a tax upon a lawful business of photography. Fortune telling is also a lawful business. We have no statute making it unlawful. On the contrary, the statutes authorize the issuance of licenses to carry on such business. True, it is a privilege, but nevertheless lawful, and, moreover, it was specifically held in the McGriff case that the operation of a photographic business as conducted in that case was a privilege. The case was decided on the theory that the business involved was a privilege, and the statute assessing an unreasonably high tax was declared invalid. True, some courts have indicated that a lawful business which is a privilege may be destroyed merely by the imposition of an unreasonable and excessive tax that is out of all proportion to taxes assessed against other lawful businesses, but our Court has held otherwise, as shown herein, and I choose to follow our own cases on that point. I firmly believe that if the legislature had intended to abolish a lawful business which is a privilege, it would have done so by adopting an act that would be plain and unequivocal and not by assessing excessive taxes, leaving it to the courts to guess at the real intention of the legislature in adopting the act. And moreover, if the lawful business of fortune telling can be abolished by assessing excessive taxes, any other business that happens to be a privilege can be destroyed in like manner. Therefore I respectfully dissent.

I am authorized to say that Mr. Justice Holt joins in this dissent.


author: G-eobge Bose Smith, J.

text:
    Jones v. Adcock.
    5-2342
    343 S. W. 2d 779
    Opinion delivered March 13, 1961.

      O. E. Gates, for appellant.

      James Ross, for appellee.
   G-eobge Bose Smith, J.

The appellees have filed a motion to dismiss this appeal, asserting that the appellant is at fault in having failed to bring up a complete record of the proceedings below. We have concluded that the motion must be granted.

The suit was brought by the appellant, who sought compensation for flood damage allegedly caused by the appellees’ having obstructed the flow of a natural stream. There was a jury verdict for the defendants, and judgment was entered on September 2, 1960. On September 29 the appellant filed his notice of appeal and his designation of the record, the entire record being designated for inclusion in the transcript. It is shown by the record that copies of the notice of appeal and of the designation were duly mailed to opposing counsel. Ark. Stats. 1947, §§ 27-2106.2 and 27-2127.2.

On November 8 the appellant filed a new designation of the record. This designation omitted all the testimony going to the merits of the case and called for a partial record consisting only of the pleadings and the voir dire examination of the jury. In attempting to designate a partial record the appellant failed to file a statement of the points to be relied upon, as the statute requires. Ark. Stats., § 27-2127.5. The record does not indicate that a copy of the new designation was served upon counsel for the appellees. To the contrary, the verified motion to dismiss asserts that no service was had.

We may assume, without deciding, that the filing of an amended or substituted designation is permissible. Even so, if the new designation calls for a partial record it is the appellant’s duty to comply with the statute by serving a copy of the designation upon opposing counsel and by filing a statement of the points to be relied upon. It is essential that the appellee be given an opportunity to require that there be included in the record any matter not designated by the appellant. See Ark. Farmers Assn. v. Towns, 232 Ark. 997, 342 S. W. 2d 83.

We are unable to say that the appellees have not been prejudiced by the appellant’s failure to comply with the statute. The abbreviated record indicates that the appellant thinks the trial court erred in not letting the appellant’s attorney ask the jurors about their possible connection with insurance companies. The question was disallowed upon the appellees’ assertion that if they should he found to he liable they would have no effective recourse against any insurance company. It is evidently possible that the appellees might be benefited, in arguing this issue, by having a record of the testimony taken upon the merits. It might be shown, for example, that the appellees really had no insurance or, again, that the appellant failed to make a prima facie case, so that the make-up of the jury would be immaterial. The appellees have been effectively deprived of any opportunity to bring up additional matter favorable to them, since it is now too late for the record to be supplemented. West v. Smith, 224 Ark. 651, 278 S. W. 2d 126. Their motion is therefore well taken.

Appeal dismissed.