author: Ed. F. McFaddin, Associate Justice.

text:
    Stephens v. City of Springdale.
    5-2435
    350 S. W. 2d 182
    Opinion delivered September 25, 1961.
    [Rehearing denied November 6, 1961.]

      Carlos B. Hill, for appellant.

      Charles E. Davis, Lovell & Evans, for appellee.
   Ed. F. McFaddin, Associate Justice.

The appellants prosecute this appeal from a Decree of the Chancery Court (a) sustaining a demurrer to their amended and substituted complaint and (b) granting appellees’ motion to dismiss the complaint. Since the record contains no statement to the effect that the appellants— plaintiffs below — elected to stand on their amended and substituted complaint after the demurrer was sustained, we cannot treat the order of the Court sustaining the demurrer as a final and appealable order. Portis v. Board, 212 Ark. 822, 208 S. W. 2d 772; and Ark. State Board v. Larsen, 226 Ark. 536, 291 S. W. 2d 269. Therefore, we only consider whether the Court was correct in dismissing the complaint on motion of the defendants and without hearing testimony. The ground for dismissal as alleged in the motion was, that the plaintiffs did not file their suit in apt time.

On August 11, 1959, the City Council of Springdale adopted its Ordinance No. 466, which closed Cleveland Street for one block (between Emma Street and Johnson Street). The ordinance was published on August 13, 1959, and this suit was instituted by the plaintiffs on September 11, 1959. The plaintiffs are property holders on Cleveland Street, adjacent to that portion of the street that was closed. The defendants are the City of Springdale and its Mayor and City Council, and will be collectively referred to as “The City.” The purpose of the suit was to enjoin the enforcement of the Ordinance No. 466. The City filed a motion to dismiss the complaint, claiming that the ordinance was passed on August 11th and the suit was not filed until September 11th, which was thirty-one days after the passage; and the City claimed that the “period of limitations” was thirty days. To sustain such plea of limitations, the City relies on its Ordinance No. 320 and certain legislative enactments and statutes. A careful study of all of these fails to show that the City’s plea of limitations contains any merit:

(a) Ordinance No. 320 of the City of Springdale provides that all referendum petitions under Amendment 7 to the Constitution of Arkansas must he filed with the City Clerk within thirty days after the passage of the challenged ordinance. The present suit is a plenary suit in the Chancery Court and is not an effort to obtain a referendum. A 30-day period of limitations has been held reasonable for the referendum of city ordinances. Railey v. City of Magnolia, 197 Ark. 1047, 126 S. W. 2d 273. But the present suit is not a referendum; so the ordinance has no application, even assuming, without deciding, that the City could, by ordinance, shorten the ordinary statutory time for filing a suit to enjoin the enforcement of an ordinance. So the Ordinance No. 320 is no basis for sustaining the motion to dismiss.

(b) Section 19-3824 et seq., Ark. Stats, (being Act No. 17 of 1945) relates to streets that have not been used for five years. The complaint in the case at bar negatived that condition as regards the street here in issue. The complaint alleged that the street in question was being used and had been used for fifty years. In the absence of testimony to the contrary, the motion to dismiss could not prevail as against such allegations in the complaint. So the said statute affords no grounds for sustaining the motion to dismiss.

(c) Act 210 of 1931 (now found in § 19-3817, Ark. Stats.) relates only to “alleys or other passageways across a block.” Here we are dealing with a street and not merely an alley across a block; so that act affords no foundation for sustaining the motion to dismiss insofar as concerns the street.

(d) Act 40 of 1927 (as now found in § 19-3813 et seq., Ark. Stats.) relates to cities “now or hereafter” having “a population of more than 15,000 inhabitants, as shown by the last Federal Census.” We take judicial notice of the Federal Census figures (Board of Trustees v. Pulaski County, 229 Ark. 370, 315 S. W. 2d 879), and, according to the 1960 Federal Census, the population of Springdale was 10,076. So the Act 40 of 1927 has no application to this case.

(e) Finally, the City relies on § 19-2304, Ark. Stats., which, in Sub-section 2, gives cities of the first class — as Springdale is- — the power “to alter or change the width or extent of streets . . . and to vacate . . . such portions thereof as may not ... be required . . We are convinced that the City of Springdale was proceeding under this § 19-2304 in enacting the Ordinance No. 466 here involved. See Cernauskas v. Fletcher, 211 Ark. 678, 201 S. W. 2d 999; and Roberts v. Pace, 230 Ark. 280, 322 S. W. 2d 75. But § 19-2304, Ark. Stats, contains no provision limiting to thirty days any attack on the ordinance of the City. The ordinary statutory period for suits against the enforcement of an ordinance would apply.

To summarize, we find no authority to support the action of the Trial Court in dismissing the complaint, and such ruling is reversed. Since the ruling on the demurrer is not a final and appealable order, and since the order of dismissal is reversed and the cause remanded, the result is that the cause will still be pending before the Trial Court for further proceedings not inconsistent with this opinion.

Beversed.

       The ordinance also closed the alley running east and west through the said block; but the closing of the street is the point in dispute.

       To allege damages not common to inhabitants generally, the amended and substituted complaint contained this language: “Plaintiff O. W. Collins, in his own behalf, states that be is the owner of a grocery store situated at the intersection of said Cleveland Street and Emma Avenue; that a great majority of his customers must travel over the said Cleveland Street in order to reach his store for the purpose of purchasing groceries and supplies, and that this plaintiff will, if the said Cleveland Street is closed as proposed in the said Ordinance No. 466, suffer special damages by reason of a loss of business.”


source: Caselaw Access Project

author: George Bose Smith, J.

license: Public Domain

text:
    Wells v. City National Bank of Ft. Smith.
    5-2444
    349 S. W. 2d 668
    Opinion delivered September 25, 1961.
    [Rehearing denied October 23, 1961.]

      ■Charles B. Garner, for appellant.

      Harper, Harper, Young & Burden, for appellee.
   George Bose Smith, J.

This is a proceeding by the City National Bank to foreclose a chattel mortgage upon a cabin cruiser and other property. The mortgagor, Bobert Novick, and his wife made no defense, but the suit was resisted by the appellant, Gladys Bylee Wells, who contends that under an earlier chattel mortgage she has a prior lien against the boat. The chancellor held that the bank has the superior lien. Priority as between the two mortgages is the only issue presented by the appeal.

The parties were living in Fort Smith when the mortgages were executed, but Novick kept the boat at a dock on Tenkiller Lake in Oklahoma. On April 8, 1959, the Novicks mortgaged the cruiser to Mrs. Wells to secure a debt of $3,650. Pursuant to Arkansas law Mrs. Wells filed the mortgage in Sebastian County, where the mortgagor resided. Ark. Stats. 1947, § 51-1001. She failed, however, to endorse on the mortgage the words, “This instrument to be filed, but not recorded.” Ark. Stats., § 16-201. This omission prevented Mrs. Wells’ mortgage from becoming a first lien as against the bank. Nix v. Watts, 121 Ark. 346, 181 S. W. 127.

On August 3, 1959, Novick mortgaged the property to the bank to secure a debt of $2,270. This mortgage was properly filed in Sebastian County and became a first lien by Arkansas law. Thereafter Mrs. Wells apparently discovered that her mortgage had been defectively filed. In November she recorded certified copies of her mortgage in the Oklahoma counties where Ten-killer Lake is situated.

In January, 1960, the bank took possession of the property and brought it to Arkansas. The bank’s complaint was filed in March, 1960, and asserted that whatever interest Mrs. Wells claimed in the property was subject to the bank’s lien. It was not until July 5th that Mrs. Wells filed an answer setting up her chattel mortgage and seeking a first lien against the property.

Mrs. Wells’ claim to priority rests upon the fact that her mortgage was recorded in Oklahoma, while the bank’s mortgage was not. It is ordinarily the rule that the validity and effect of a chattel mortgage are determined by the law of the place where the property is situated at the time the mortgage is executed. Valleyfield Gin Co. v. Robinson, 216 Ark. 716, 227 S. W. 2d 168. By Oklahoma law a chattel mortgage, to be valid against third persons, must be recorded in the county where the property is situated. 46 Okl. St. Ann. § 57. The appellant therefore insists that the controlling Oklahoma law gives her priority.

We do not share this view. There is authority for the position that the Oklahoma law would not be applicable after the boat was returned to Arkansas, since the original transactions took place in this state among residents of this state. See Runyon v. Groshon, 12 N. J. Eq. 86. We do not pass upon this question, however, for we are convinced that Mrs. Wells cannot prevail even if the law of Oklahoma is considered to be controlling.

The Oklahoma recording statutes provide that “when a mortgaged chattel is moved into this State, or from one county to another, any previous filing of the mortgage shall not operate as notice as against subsequent creditors, purchasers, mortgagees or incumbrancers for a longer period than one hundred and twenty days after such removal, but such mortgage must be refiled in the county to which the chattel is removed and in which it is permanently located. 46 Okla. Stat. Ann. § 58.

It will be observed that the statute does not expressly refer to the situation in which a mortgaged chattel is moved from Oklahoma to another state. In a case involving a removal from one Oklahoma county to another it has been held that even though the property is removed without the mortgagee’s consent the lien is lost if the mortgage is not refiled within 120 days. Farmers’ St. Bk. of Wheatland v. North Okl. St. Bk., 104 Okl. 248, 230 P. 914. And in that situation a junior mortgage on file in the county to which the property is removed will become a first lien if the senior mortgage is not refiled within 120 days. Henry v. Harris, 206 Okl. 357, 243 P. 2d 663.

The Oklahoma statute, quite properly, does not attempt to say what the situation will be when the mortgaged chattel is moved from Oklahoma to another state. Upon this point we must refer to the Arkansas law of conflict of laws. By that law the validity of an out-of-state mortgage will be recognized when the mortgaged property is brought to Arkansas. Hinton v. Bond Discount Co., 214 Ark. 718, 218 S. W. 2d 75, Pruitt Truck & Implement Co. v. Ferguson, 216 Ark. 848, 227 S. W. 2d 944.

In recognizing the out-of-state incumbrance, however, we should not give it any greater effect than it is entitled to under the law of the state where it was executed. Hence the extraterritorial effect of the Oklahoma statute would be limited to a period of 120 days after the property was removed from Oklahoma. Within that time Mrs. Wells might have brought suit in Arkansas to foreclose her mortgage, which was overdue, or might have filed an answer in the present suit, asserting her supposed priority under Oklahoma law. She did nothing, however, until her answer was filed on July 5, almost six months after the boat was brought to Arkansas. In the meantime the extraterritorial force of the Oklahoma law had expired, and the local law of Arkansas must control the determination of priority. By that law the bank is entitled to prevail.

Affirmed.


author: George Rose Smith, J.

text:
    City of Paragould v. International Power Machinery Co.
    5-2469
    349 S. W. 2d 332
    Opinion delivered September 25, 1961.

      Kirsch, Cathey S Brown, for appellant.

      Cecil Grooms, for appellee.
   George Rose Smith, J.

This is a suit by the city of Paragonld and the commissioners of its municipal light plant to recover $20,000 damages for breach of warranty in a contract by which the appellee, International Power Machinery Company, sold a secondhand diesel-powered generator to the city for $45,000. The city contends that the seller warranted the generator’s diesel .engine to have been manufactured in 1950, but it was actually built in 1944. The chancellor held against the city upon two grounds: (a) There was no reliance upon the warranty, since the chancellor found that the city’s agents discovered the truth before entering into the transaction; and (b) the city was not damaged, since the generator was worth more than the city paid for it.

The first disputed question is whether there was an express warranty. International is a small family corporation, domiciled in Cleveland, Ohio, and engaged in buying and selling used power machinery like that involved in this case. In February of 1960 International bought this generator from a Canadian power company for $18,000 in Canadian money, which was equal to $18,967.50 in American money. International’s president, Sam W. Kern, knew when he bought the 1950 generator that it was powered by a 1944 Fairbanks-Morse engine.

In March International mailed to all public and private power companies in the United States a brief printed advertisement inviting inquiries about the unit, which was described as “Installed 1950 — Excellent condition- — Can be shown in operation.” When this circular was received at the Paragould light plant the superintendent, J. C. Holland, telephoned Kern for additional information about the unit. Following that conversation Kern sent Holland a letter, dated March 25, 1960, in which the generator and engine were formally offered to the city for $50,000. After a detailed description of the generator and the engine the offer contained this language: “New 1950 — Excellent condition — Can be shown in operation.”

The light plant commissioners were interested in the unit and sent representatives to Canada to inspect the machinery. The inspection party consisted of the superintendent Holland, his plant foreman Hagen, and one of the commissioners. Kern met the inspectors in Chicago and accompanied them to Canada. There Holland and Hagen were satisfied with the operation of the unit, but they asked that certain auxiliary equipment be changed. Kern said that he would find out the cost of the requested auxiliaries and communicate that information.

On April 15, 1960, Kern sent the light plant another formal offer with which he enclosed quotations from the Fairbanks-Morse Company showing that the auxiliaries would cost $4,304.35. The letter stated: “We have agreed to assume the cost of these auxiliaries and we accordingly allow a deduction of $5,000 from the purchase price of the 1136 KW Fairbanks-Morse diesel unit, submitted to you in our letter of March 25, 1960.” This letter then described the unit in substantially the same language as the earlier letter, but the descriptive remarks beginning “New 1950,” etc., were omitted.

The city accepted this offer and made a down payment of one-fourth of the purchase price, as required by the seller’s letter. Before the unit reached Paragould by rail the city learned from a Fairbanks-Morse salesman that the engine, instead of having been made in 1950, was a Navy surplus marine engine that had been manufactured under wartime conditions in 1944. Kern refused to rescind the contract, and the city elected to pay the balance of the purchase price under protest and bring suit for damages. The suit was filed in equity to enable the city to impound, by equitable garnishment, $20,000 of the purchase money.

We are of the opinion that International expressly warranted that the diesel engine had been manufactured in 1950. The Uniform Sales Act defines an express warranty in this language: “Any affirmation of fact or any promise by the seller relating to the goods is an express warranty if the natural tendency of such affirmation or promise is to induce the buyer to purchase the goods, and if the buyer purchases the goods relying thereon.” Ark. Stats. 1947, § 68-1412. It seems plain enough that International’s statement that the unit was new in 1950 was an affirmation of fact having a natural tendency to induce the city to purchase the unit. In fact, the statement could have been made for no other purpose.

We are not impressed by the appellee’s insistence that its offer of April 15 so completely superseded the earlier offer that the city was not entitled to rely upon the March 25 letter. The revised offer contained in the second letter referred to the purchase price “submitted to you in our letter of March 25, 1960,” so it is evident that the seller meant for the city to consider both letters. Furthermore, the April 15 letter contained no language constituting a withdrawal of the warranty previously made. Associated Seed Growers, Inc. v. Johnson, 227 Ark. 235, 297 S. W. 2d 934; Kansas City Bolt & Nut Co. v. Rodd, 6th Cir., 220 Fed. 750.

The second question is whether the city’s inspection prevented it from relying on the warranty. It is conceded that an inspection does not preclude reliance upon an express warranty if the true facts are not discovered by means of the inspection. Saunders v. Cowl, 201 Minn. 574, 277 N. W. 12; Bregman Screen & Lbr. Co. v. Bechefsky, 16 N. J. Super. 35, 83 A. 2d 804. Hence the question is whether the city’s representatives learned during their trip to Canada that the diesel engine had been built in 1944.

It is not contended that Kern ever volunteered this information, though he knew it. It is not indicated that the city’s inspectors were so familiar with Fairbanks-Morse engines that they could recognize a 1944 engine merely by examining it. This engine, however, admittedly had a nameplate which recited, among other things, that it had been manufactured in 1944. The pivotal question is whether the city’s representatives read that nameplate.

The testimony of those present is in direct conflict. Both Holland and Hagen, the two qualified inspectors, say that they did not see the nameplate. This testimony is not inherently improbable, even though the inspection lasted for four or five hours. The generating unit is an enormous piece of equipment. The nameplate in question was four by six inches in size, was mounted near the top of the engine, from 6% to 9 feet above floor level, and was partly obscured by a horizontal rod in front of it. There were three other nameplates on the unit, below eye level, and none of them gave the date of manufacture. Holland and Hagen were mainly concerned with the unit’s performance. The most important part of the prolonged inspection upon a cold Canadian day was devoted to starting the engine and warming it up sufficiently for it to run at about 60 per cent of full capacity. Of course the inspection was not undertaken for the purpose of determining the year of manufacture.

Kern testified that he talked to Hagen during the inspection, and Hagen said that he recognized the engine as a war surplus marine engine, one of the first ones made. Kern says that Holland made a similar statement on the trip back to Chicago. Hagen and Holland deny this testimony.

In his memorandum opinion the chancellor found that Hagen and Holland actually saw (and presumably read) the nameplate. He based this finding almost entirely upon the fact that they examined an operating lever near the plate. The chancellor concluded that their eyes must have been focused upon the general area of the nameplate and that they must have seen it.

We consider this finding to be against the weight of the evidence. The contemporary and subsequent conduct of all the persons involved so strongly supports the Holland-Hagen testimony that we are firmly convinced of its veracity. Several circumstances tend to confirm this conclusion:

(a) Kern does not suggest that either Holland or Hagen displayed the slightest surprise or concern upon finding that the engine was a wartime surplus model instead of the later model that they came to see. It does not seem likely that these men would have so readily acquiesced in a discovery that was decidedly detrimental to the city.

(b) After the inspectors returned to Paragould and reported their findings the minutes of the commissioners’ meeting on April 18 recited that the commission “approved the purchase of a 1950 engine (Fairbanks-Morse) that our employees had inspected at Saskatchewan, Canada.” We do not regard these minutes as inadmissible self-serving statements, since the commissioners then had no reason to fabricate favorable proof. The minutes were admissible as a public record. Wig-more on Evidence (3d Ed.), § 1639; McQuillin on Municipal Corporations (3d Ed.), § 14.05. The reference to a 1950 engine tends to rebut the suggestion that the inspectors learned the truth in Canada.

(c) Kern says that when he prepared the offer of April 15 he examined his earlier letter and discovered his error in having described the unit as “New 1950.” He sought to correct the error by making no reference to the date of manufacture in his second offer. We are inclined to think that if Holland and Hagen had both indicated their knowledge of the true date of manufacture in the course of the inspection trip Kern would not have hesitated to act upon that favorable circumstance by inserting the correct date in the April 15 letter.

(d) When the city discovered the truth its attorneys wrote a letter to Kern, asking that the transaction be rescinded. In reply to that demand Kern wrote in part as follows: ‘ ‘ The date engine was built and serial number appear on the nameplate of the engine .and was openly displayed at time of inspection.” Kern said nothing whatever about the inspectors’ having actually discovered the fact that the engine was built in 1944. We find it impossible to believe that Kern would not have emphasized such admissions on the part of Holland and Hagen if they had really been made.

The only fact that tends to support Kern’s testimony is the city’s action in asking, after the truth was discovered, that International in effect reduce the purchase price by reimbursing the city for the expense of the inspection trip. After studying the record as a whole, however, we are convinced that the weight of the evidence supports the view that Holland and Hagen did not read the rather inconspicuous plate in the course of their inspection.

The final question is the extent of the city’s damages. Before attempting to use the generating unit the city sent it to the Fairbanks-Morse plant in Wisconsin. There it was rebuilt at a cost to the city of more than $40,000. The rebuilt engine, however, was the equivalent of a 1960 engine and also included extra features such as a dual fuel arrangement. Consequently the city’s obligation to the Fairbanks-Morse Company does not represent the bare cost of transforming a 1944 engine into a 1950 model.

There is testimony, not undisputed, that what the city now has is worth more than its total payments to International and to Fairbanks-Morse. We do not agree with the chancellor’s conclusion that such proof shows that the city has not been damaged. If the city had actually received a 1950 engine it is shown by undisputed testimony that the cost of rebuilding the unit would have been substantially less than it actually was. To that extent the city has suffered a loss within the terms of the Sales Act. Ark. Stats., § 68-1469 (6).

The estimates of the city’s damages are so hopelessly at variance that they cannot be reconciled. Kern, who had many years of experience in buying and selling used power machinery, testified that a 1950 engine would have been worth only about $2,500 more than a 1944 model. He thought that the city received full value, even though he had bought the 1944 engine in the open market for less than $25,000, counting his loading and freight expense.

The Fairbanks-Morse salesman recited bare figures, without any supporting data, that indicated it would cost at least $21,650 to convert a 1944 engine to the equivalent of a 1950 model. The chancellor stated in his memorandum that all the witnesses appeared to be biased in favor of one side or the other.

In attempting, upon trial de novo, to arrive at a proper estimate of the city’s loss we are beset with much the same difficulty as we encountered in Magnolia Pipe Line Co. v. Ark. State Game & Fish Comm., 218 Ark. 932, 240 S. W. 2d 857. After studying the record it is our collective best judgment that an award of $12,000 will compensate the city’s loss and accomplish substantial justice in the case. The cause will be remanded for the entry of a decree consistent with this opinion.

Reversed.


author: Paul Ward, Associate Justice.

text:
    French v. Jonesboro Public Schools.
    5-2470
    349 S. W. 2d 670
    Opinion delivered September 25, 1961.
    [Rehearing denied October 23, 1961.]

      E. M. Ellis and Bon McCourtney, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case growing out of a heart attack which was compensable and another heart attack about a year later which was fatal. The Referee, the Commission, and the Circuit Court all held that the widow of the deceased was not entitled to compensation, and she prosecutes this appeal for a reversal of the judgment of the Circuit Court.

Because of the view which we take and the conclusion reached it will not be necessary to consider many of the issues discussed in the brief or to set out fully the testimony which was predominantly medical testimony.

Facts. The following background facts are either stipulated, admitted, or uncontradicted: Riley L. French, who was an employee (janitor) of the Jonesboro Public Schools, collapsed with a heart attack (myocardial infarction) on February 22, 1959. French previously had been afflicted with an arteriosclerotic heart disease, but his collapse on the day in question was precipitated, aggravated, or accelerated by physical exertion in connection with his employment. Appellee (Aetna Casualty & Surety Company, the insurance carrier), apparently recognizing the attack grew out of and was in the course of his employment, acknowledged compensability of French’s claim and made payments to him up until March 7, 1960. In the intervening time French experienced frequent pains and was unable to work. On the date last mentioned above French suffered a fatal heart attack. The disease which precipitated the fatal occlusion was the same as the disease which French had in February, 1959.

The Issue. Under the view we take in this case the decisive issue is a narrow one as posed in Bell v. Batesville White Lime Company, 217 Ark. 379, 230 S. W. 2d 643.

Bell, who had suffered a compensable heart attack in 1945, was awarded compensation until his death in 1948. The trial court affirmed the Commission in denying compensation to Bell’s widow and children. In reversing the trial court we made the following decisive statements: “It was determined in the first proceeding [1945] that Bell suffered an accidental injury which activated his dormant heart condition. That issue is not • subject to reconsideration. All that remains to be decided is whether Bell’s rheumatic heart was the cause of his death, and, if so, whether death occurred sooner than it would have had his ailment not been activated by his employment.”

Applying the above rule to the facts of this case as heretofore set out, we think the decisive issue is whether French’s death (on March 7, 1960) occurred sooner than it would have had he not suffered the compensable injury on February 22, 1959.

The Referee, whose findings were approved by the full Commission, made a finding on this issue, stating: “Claimant’s death therefore did not come any sooner than it would have, had the first infarction not occurred. ’ ’

It remains for us, therefore, to determine if there is substantial evidence in the record to support the Commission’s finding, following our well established rule. The evidence in this connection is based solely on medical testimony, some tending to support and some tending to refute the Commission’s finding. In briefly reviewing the record we understand that when doctors say there was no relation or connection between the first attack and the fatal attack, it amounts to saying death was not hastened by the first attack.

Dr. Baseom P. Raney, in substance, stated: the second attack was not a result of the first attack; one heart attack would not produce another one; our problem is to determine whether the first attack contributed to the second one, and it is my opinion that the first heart attack did not contribute to the second one; actually French’s death came about due to the fact that his heart was unable to withstand the shock of the second infarction due to prior damage.

Dr. W. M. Hamilton testified that the second attack (or infarction) was not related to the first one, but that the first infarction may have hastened French’s death in that it decreased the ability of the heart to tolerate the second infarction; if a person has a damaged heart and suffers another blow to his heart he is not going to be as well able to tolerate this recent blow as he would have if he had never had any heart trouble.

Q “Therefore, the first is a contributing factor in death?

A “I wouldn’t say contributing, I would say that, that it seems logical that his heart muscle is not as strong, I think anybody —

Q “And it cannot withstand —

A ‘ ‘ Will not withstand as much exertion or further trauma or further damage or whatever.

Q “Let’s put it this way, and that in all probability the first was a contributing factor in the production of death?

A “I think it could be.”

* # #

Q “All right, now, Doctor, with the information that you have at this point, can you state from scientific evidence available that Mr. French’s death was not due to or contributed to by the first infarction?

A “I can’t say it was for sure nor it wasn’t for sure.”

Under the above status of the medical testimony it is obvious that there is no satisfactory certainty on the one vital issue heretofore mentioned. While we might not agree with the Commission’s finding, we are unwilling to say there is no substantial evidence to support it.

Although it is not an issue in this case, we point out that Appellee school district apparently brought itself under the Workmen’s Compensation Act pursuant to Ark. Stats., § 81-1307.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Rush v. Yancey.
    5-2494
    349 S. W. 2d 337
    Opinion delivered September 25, 1961.

      Oscar E. Ellis, Claude A. Caldtoell, for appellants.

      W. G. Wiley, for appellees.
   Jim Johnson, Associate Justice.

This case arises from a dispute between two groups in the Pleasant Bidge Baptist Church in Izard County. This Church is congregational in its method of church government and the disagreement arose because of divergent beliefs concerning pulpit affiliations.

Appellees filed their complaint in the Chancery Court of Izard County, alleging they were the duly elected and qualified trustees and deacons and that they represented the members of the legal and majority faction of the Pleasant Bidge Missionary Baptist Church and were duly authorized by this group or faction to institute this law suit, and that the majority faction held a legal conference on May 21, 1960, at which time a majority of the congregation voted to oust the Rev. M. E. Ford, Pastor, and to also bar the Rev. Leaman Dobbins from holding any further services in the church, and to reinstate five members that had been excluded by the minority group. The prayer of the complaint of appellees was for an injunction or restraining order to prevent appellants (defendants) from interfering with the services held by appellees, and to particularly enjoin the Rev. M. E. Ford, and the Rev. Leaman Dobbins from conducting any further services in the church. After appellees (plaintiffs) filed their suit in the Chancery Court, appellants (defendants) placed a padlock on the doors of the church to which they (appellants) carried the keys.

On the same day that appellants filed their answer, the case was tried and a decree was rendered in favor of appellees. The Chancellor’s decree, in substance, sets out the following findings:

“I find that the meeting of the church in February and its actions at that meeting was legal; I hold too that the April meeting was valid, and that the exclusion of the five members was legal. I further hold that the meeting of the church on May 21 was a legal and valid meeting, and that the church record shows that the action of the church on May 21, to reinstate the five members who had been excluded, was legal and valid, and at that meeting the will of the majority of the church is shown by the record here produced to have dismissed the Pastor, M. E. Ford, and that the action of the church in dismissing Dobbins was legal and that the church effectively dismissed these two men from holding services in the church.

“I further hold that plaintiffs, M. W. Yancey, G. W. Hammett, Earl McVey, and Noel Simmons are the duly elected trustees of the Pleasant Ridge Missionary Baptist Church and are entitled to the control of the Church property until displaced by the church, and although the burden of proof is on the plaintiffs they have discharged that burden, and are entitled to a restraining order against the defendants named in the suit. First, the defendants, M. E. Ford and L. E. Dobbins, from holding services there; second, against the Defendants, Troy Bush, Amerson Chadwick, Biley Gilbert, Dennie Neal and Bessie Bains from interfering in any way with the church worship. . . . They are not restrained from attending church there but they are restrained from interfering with the management of the church. The restraining order will apply only to the named defendants as I have set out.”

For reversal, appellants rely upon five points.

Their first and second points contend that the Chancery Court had no ground to intervene in this case and that appellants should not have been enjoined.

As early as 1885 in the case of Hatchett v. Mt. Pleasant Baptist Church, 46 Ark. 291, this Court in an almost identical case to the one at bar settled the questions here presented. The Court then laid down the rule from which there has been no deviation that where a minister of a congregational church is dismissed by action of the majority of the church, and thereafter usurps the pastoral duties, such majority are entitled to an injunction to restrain him, and to prevent him and his adherents from occupying and using the church without consent of the majority. See also: Chambers v. Jones, 222 Ark. 596, 262 S. W. 2d 285; and Monk v. Little, 122 Ark. 7, 182 S. W. 511.

Appellants’ third point contends that the Chancellor abused his discretion in granting the injunction. In Elston v. Wilburn, 208 Ark. 377, 186 S. W. 2d 662, the rule is reiterated that “In congregational groups the affairs are determined by the vote of the majority of the members. ’ ’ From the church records, minutes of the Church meetings and other evidence in the record, we cannot say that the Chancellor abused his discretion.

Appellants’ fourth point contends that injunction was not proper because no one knows the property owned by the Church. As we view the matter, the title to the Church property was not in issue but only the right of each faction in the Church to the use of the property. This being true, the case must rest on who constituted the legal majority faction. Since appellants made no effort to stand on any other title, the law is plain and citations unnecessary that an adversary must recover on the strength of his own title rather than the defects of the other party. The Church records, minutes, and testimony reflect that appellees represented the majority and/or legal faction and they had the right to control the church property and manage the affairs of the church.

Appellants’ fifth and last point contends that the record is in such condition it cannot be told who is right.

After carefully reviewing the whole case, on trial de novo we find that the records of the Church, the minutes of the meetings, the record and testimony are sufficient to show that the appellees are the legal majority faction of the Church and are entitled to the management and control of the church property.

Therefore, since the findings of the trial court will not be disturbed unless clearly against the preponderance of the evidence, the decree is affirmed.


author: Neill Bohltnger, Associate Justice.

text:
    National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc.
    5-2447
    349 S. W. 2d 672
    Opinion delivered September 25, 1961.
    [Rehearing denied October 23, 1961.]

      Louis Tarlowski, for appellant.

      Roy Finch, for appellee.
   Neill Bohltnger, Associate Justice.

The appellant is a corporation engaged in the transportation of mobile bornes and has authority to operate interstate in all states and intrastate authority in 35 states. It made application to the Arkansas Commerce Commission for authority to. operate intrastate as a common carrier by motor vehicle, trailers in initial and secondary movements, the initial movement being defined as the movement of a trailer from point of assembly or manufacture to a dealer, and secondary movement covers all other movements.

The appellee, Chandler Trailer Convoy, Inc., is a corporation operating under authority from the Arkansas Commerce Commission to move trailers intrastate in both secondary and initial movements over major highways in Arkansas and also has interstate authority. The appellee, Wendell Chandler, operates as the Wendell Chandler Trucking Company and has been engaged in moving mobile trailers intrastate since 1958.

The commerce commission denied the application of the appellant and upon appeal to the circuit court, that court also denied the application and the case is presented here on an appeal from that adverse judgment.

At the outset we are mindful of the fact that when the legislature has set up a fact finding body which is authorized to issue or withhold permits, and that body has had the advantage of hearing the witnesses testify, the courts are slow to set aside its findings, but “an appeal from the decision of the commerce commission is tried do novo [here] on the record,” Arkansas — Best Freight System v. Missouri Pacific Freight Co., 233 Ark. 685, 348 S. W. 2d 694, which pronouncement is bottomed upon Ark. Stats., § 73-134, “# * * the Supreme Court may and shall review all the evidence and make such findings of fact and law as it may deem just, proper and equitable. ’ ’

The law that governs this case has been concisely stated over a number of years without modification or deviation and while it is said in Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S. W. 2d 512, “The law does not grant a monopoly, nor does it intend to permit competition not required by the public convenience and necessity. Thepe are questions of fact which the commission has the Authority to investigate and determine, subject to the} review by the courts to which appeals may be takdn,” the finding of the Commission and lower court should be affirmed unless it appears to be contrary to the preponderance of the testimony. The general rule is stated by this court in Missouri Pacific Railroad Com pany v. Williams, 201 Ark. 895, 148 S. W. 2d 644, as follows : ‘ ‘ The general rule is that a certificate may not he granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.” See also Southeast Arkansas Freight Lines, Inc. v. Arkansas Corporation Commission, 204 Ark. 1023, 166 S. W. 2d 262.

Pond on Public Utilities, 4th edition, § 913, states: “In granting certificates, the public convenience and necessity should be the first consideration, and the interest of public utilities already serving the territory secondary, while the desire of a new applicant for a certificate is relatively a minor matter for the consideration of the commission.”

In the case of Santee v. Brady, 209 Ark. 224, 189 S. W. 2d 907, this court quoted from 42 C. J. 687 the following: “The convenience and necessity which the law requires to support the public service commission’s order for the establishment or extension of motor vehicle transportation service is the convenience and necessity of the public distinguished from that of an individual or any number of individuals, and this is the primary matter to be considered in determining what constitutes such public convenience and necessity in a particular case, and the propriety of granting a certificate to that effect. The necessity for the proposed service must be considered as well as the added convenience thereof, although the word ‘necessity’ is not used in this connection in the sense of being essential or absolutely indispensable, but in the sense that the motor vehicle service would be such an improvement of the existing mode of transportation as to justify or warrant the expenses of making the improvement.” See also 60 C.J.S., Motor Vehicles, § 90.

The court in the Santee case, supra, concisely summed up the things which must be found if the oijder of the commerce commission is to be reversed. In order to reverse the judgment before us, we must find that, notwithstanding already existing service, ‘ ‘ * * * the present service is inadequate; or * * * that additional service would benefit the general public # * *.” We do now so , find.

Eeviewing the testimony in the light of the pronouncement in Santee v. Brady, wherein Pond on Public Utilities is quoted, we direct our attention first to the public convenience and necessity, secondly to the interest of public utilities already serving the territory and the desire of the new applicant for a certificate is a relatively minor matter.

In arriving at the “public convenience and necessity,” we view the public in these segments:

(1) As a matter of sequence, and not with reference to weight or importance, there are the dealers in mobile homes. There are mobile home plants in this state located at Walnut Eidge, Newport, Jacksonville, Camden and Arkadelphia. The movement of mobile homes from these plants to dealers within the state must be made by those having intrastate licenses or authority. There are a large number of trailer and mobile home dealers in the State of Arkansas and they must of necessity have the mobile homes brought to their concentration points and delivered from there to the locations selected by the purchasers. It appears that there are also movements involved in the repossession of trailers.

(2) Another segment of the public which is concerned in this matter is those that use the mobile homes. The record reflects that there is a concentration of mobile homes at Hot Springs, at the University and colleges where they are utilized by married students, and extensive use is also made by military personnel, construction workers and people who visit the recreation areas, as well as others who utilize them as more or less permanent dwellings.

(3) A third segment of the public, whose convenience and necessity is involved, may be defined as those who travel the highways. The record in this case reflects that trailers, over the years, have increased in size and weight from small compact vehicles, easily towed behind a passenger automobile, to where at the present time trailers are being built 10' wide and in excess of 50' in length and weighing from 16 to 18,000 pounds. These vehicles require a public transportation system to transport them, and their size precludes their being towed behind a passenger automobile and requires that they be moved by trucks which are prepared for this purpose of towing mobile homes and which contain the safety requirements as promulgated by the U. S. Interstate Commerce Commission and the Arkansas Commerce Commission, as well as Ark. Stat., Anno., § 75-806, which sets up statutory safeguards, and that skilled personnel is a necessary adjunct in such movements. That movement, except under the licensing and regulation of the commerce commission, constitutes a potential hazard on the highways.

We find, from the testimony in this case, that the president and general manager of the Chandler Trailer Convoy, Inc., one of the appellees, and Wendell Chandler, who testified that he is the owner of the Wendell Chandler Trucking Company, are relatives and occupy the same office in Little Rock and have the same telephone. Beyond the office in Little Rock, we do not find that the appellees maintain places of business at other locations and of the 30 trucks used by the Chandler Trailer Convoy, Inc., but one truck is owned by the •company, the others being rented, and appellee Wendell Chandler testified that he owns two pieces of equipment.

The plan of operation of appellees seems to be that their drivers store the equipment used in the business of the appellees at their homes. The appellees have no telephone listed in the state except at the office at Little Rock but their drivers, in returning from a trip, call Little Rock and are given instructions about any moving to be handled in their locality. If the appellee finds it necessary to dispatch trucks some distance from Little Rock, an extra charge is made for the distance the equipment travels without the load.

Whether or not the manner of conducting the business of transporting mobile homes has been the best that the appellees could do under, the circumstances we are not advised, but the record contains much testimony that the service in the transporting of mobile homes and trailers has been so inadequate that dealers and owners of mobile homes have had to resort to'the use of services from unlicensed or ‘wildcat’ operators, although they prefer doing business with legal operators. The record further shows that passenger cars, trucks without safety equipment, even a butane truck and farm tractors, have of necessity been used in this transportation which should only be undertaken by those that have the proper equipment and trained personnel, and are licensed.

The burden of showing that the service being rendered is inadequate and that additional service would benefit the public is upon appellant. We think the appellant has made the showing that entitles it to relief.

We have searched the record and find no statement in which the appellees have expressed a willingness or any plans to remedy the defects in this service.

We are of the opinion that additional service will benefit the general public and we do not feel that either the Commission or the circuit court have given proper weight to the convenience and necessity of the public generally. For the reasons herein stated this cause is reversed and remanded to the Pulaski Circuit Court with directions that it direct the Arkansas Commerce Commission to grant the application of the appellant herein.


author: Carleton Harris, Chief Justice.

text:
    Powell v. Woolfolk.
    5-2450
    349 S. W. 2d 657
    Opinion delivered October 2, 1961.

      Donald Poe, for appellant.

      J. E. Evans, for appellee.
   Carleton Harris, Chief Justice.

This is a child custody case. Appellant, Troy Gene Powell, shortly before entering the United States Navy, obtained a divorce from his wife, Winnie Sue James Powell, in the Scott Chancery Court, said decree being entered on September 29, 1958. The custody of the two minor children, born of the marriage, Debra, age three, and Rebecca, age five, was placed in Mrs. Powell. Appellant obtained an allotment for the benefit of the children, which presently amounts to $97.50 per month. On June 4, 1960, appellee married James Woolfolk. On November 10, 1960, appellant filed a motion asserting that his ex-wife had married Woolfolk; that the latter had been confined to the Arkansas Tuberculosis Sanatorium, but was away without leave, and was living in the home with the children; that the condition of Woolfolk “is such to endanger the health and lives of the children; the condition has changed to such an extent to warrant a change of custody to benefit the children.” A hearing on the motion was apparently set for December 15th. According to testimony of Mrs. Woolfolk, sometime prior to that date she consulted with her attorney, who advised her to turn over the children to S. E. and Lillie Powell, parents of appellant herein. She notified the Powells to send for the children, stating that her reason for doing so was “because I did not have any witnesses. They were sick.” The Powells took the children to their home. On January 27, 1961, a hearing was held on the motion. At the conclusion of such hearing, appellant’s motion to modify the decree as to custody was denied, and dismissed, the court ordering that the custody of the two children remain in appellee, and directing that the Pow-ells deliver the children to Mrs. Woolfolk by noon on January 30th. From such decree, comes this appeal. Four separate points are raised in urging a reversal of the decree, but we shall only fully discuss one, inasmuch as we are of the opinion that the evidence warranted a change of custody.

The most noteworthy evidence related to James Woolfolk, husband of appellee. Dr. T. H. Lipscomb, superintendent of the Arkansas Tubercular Sanatorium, testifying from the records at the sanatorium, stated that Woolfolk, who was born in 1929, had been admitted to the hospital on several occasions. First admission was on July 17, 1959, and Woolfolk remained until August 31, 1959; he was readmitted on September 15, 1959, and left on October 6, 1959; again readmitted on January 29, 1960, and left the first part of June. The record reflected that he left in October against medical advice; also that he left the Veteran’s Hospital on two occasions against medical advice. Dr. Lipscomb diagnosed Woolfolk’s condition as “pulmonary tuberculosis, far advanced, bi-lateral cavities,” that Woolfolk has “a positive sputum,” and “when the sputum is positive, he is dangerous.” The doctor testified that Woolfolk was admitted to the sanatorium under Act 161 of 1955. He further stated that the patient had left the hospital on several occasions without permission. Lipscomb testified that when Woolfolk left the early part of June, 1960, the latter had been given a three-day pass to go to Port Smith, but had not returned at the expiration of the three days. He was returned on November 16th, and was still in the hospital at the time of the hearing, except for “a few minutes when he and another patient broke out and left, but they were picked up here in Booneville and brought back to the sanatorium.”

Dr. Gr. M. Pierce, Medical Director of the Arkansas Tubercular Sanatorium, testified that Woolfolk constituted a danger to people with whom he was associated, and that his association with his stepchildren in the home would be detrimental to their welfare. When asked as to the “outlook or prospectus of his condition,” the doctor answered:

“I believe, all facts being considered, would list this as being guarded, in other words, considering the various fac„ts, and his actions and the manner in which he has acted and how he acts at the best would make this a very-guarded situation. One does not feel to be encouraged about the final outcome.”

The proof reflected that Woolfolk had been transferred to the surgery building in contemplation of an early operation, and Pierce testified that improvement “will depend on how his surgery turns out and on how he conducts himself in the future.” Further proof on the part of appellant reflected that appellee and her husband had lived, together with the children, in a four-room house, heated by a wood heater. Water came from a well. The drinking water was kept in a bucket with a dipper, and according to Mrs. Powell and Mona Faye Wilson, a sister of appellant, Mr. Woolfolk and the children used the same water bucket. They both testified that he spat in cans on the floor. They likewise testified that the home was not well taken care of, unsanitary, and the children were undernourished and not properly looked after. The testimony in the preceding sentence was disputed by appellee and her witnesses.

Herman McCormick, sheriff of Tell County, testified that he had arrested Woolfolk for drunkenness in October, 1960, and found a bottle of “moonshine” whiskey on the latter. According to the sheriff, Woolfolk was fined $99. McCormick stated that he later received a call from a druggist, advising that Woolfolk “was giving him a lot of static about wanting some light narcotics.” Further, that Woolfolk had given several checks that were not good.

According to appellee, she had given the little girls proper care, and while working at the sanatorium (from October 7, 1959, to March 27, 1960), left them in the care of a Mrs. Sharp. She paid the latter $60 per month to take care of the children. Mrs. "Woolfolk stated that her husband receives $100 a month (apparently for service disability), and though her husband gave her most of the proceeds from the check, the amount was not sufficient for her needs. Appellee pointed out that her husband “has children by a former marriage and they are supported.” She admitted that the entire family stayed in the same house, ate at the same table, and the children were closely associated with her husband while they were living together. Mrs. "Woolfolk testified that she, of course, knew that Mr. Woolfolk was afflicted with tuberculosis, but she did not know he was “positive.” It was her view that her husband would leave the hospital if he were able to get away, but she stated that she did not intend to live with him as long as he had tuberculosis. She testified that she was not presently planning to get a divorce, but subsequently stated, “I will if it is necessary to get my children.”

Ellen James, mother of appellee, testified in appellee’s behalf, and stated that her daughter took good care of the children. Mrs. Belle May testified that Mrs. Wool-folk’s home was clean on the occasions when she was present, and that Mrs. Woolfolk was good to the children and took proper care of them. Mrs. Lucille Pledger, worker for the Welfare Department, testified she had made an investigation of the home life and living conditions relating to appellee, and that such investigation showed that the children were not being neglected by their mother; that Mrs. AVoolfolk loved her children; that her morals were good, and that she was the daughter of a highly respected family. She stated that prior to Mr. Powell’s enlistment in the Navy, he did not support the children. Admittedly, she did not visit the home in the process of making the investigation, though she stated she had, in the past, been in the home. She testified that the purpose of her investigation was to determine whether the people in the community thought the minor children were being neglected. The witness stated that the report she had submitted to the court did not show that Woolfolk was suffering from active tuberculosis. By Mrs. Pledger’s own statement, her testimony was based on what people had told her, in her words, “from reliable people in the community.” While it has no bearing on the conclusions reached in this cause, it might be pointed out that most, if not all, of Mrs. Pledger’s evidence was inadmissible because it was hearsay. The report itself was admittedly based on hearsay evidence, and we have held this evidence inadmissible. See Trannum v. George, 211 Ark. 665, 201 S. W. 2d 1015.

Appellant’s parents testified that they would be glad to take the Powell children into their home, and that they had agreed with their son to take care of Debra and Rebecca while he was in naval service. They stated that they were financially able to provide a good home, and would like to have the opportunity to do so. The proof reflected that the Powells had kept the children for a period of about six weeks in 1959. Mr. Powell is employed by the United States Forest Service.

We are firmly of the view that the best interests of the children require a change of custody. This conclusion is reached, not on the basis of immorality or incompetence to care for the children on the part of the mother, but rather, because of the health hazard occasioned by her marriage to Woolfolk. Of course, while it would appear from the testimony of the sheriff that Woolfolk would not be a proper influence in the home, our principal concern relates to the constant and daily exposure to tuberculosis. Though appellee stated that she would not live with Woolfolk again while he was still so afflicted, we are not persuaded that this simple statement solves the problem. After all, though cognizant of his illness, Mrs. Woolfolk did permit these children, for a considerable period of time, to live in the home with her husband, and eat and drink at the same table. The record clearly reflects that it is extremely difficult to keep Mr. Woolfolk in the sanatorium, and appellee agreed that her husband would likely leave the hospital if he were able to get away. It is true that we have stated that custody should not be taken from a mother unless there are compelling reasons for so doing. See Perkins v. Perkins, 226 Ark. 765, 293 S. W. 2d 889. But there is a stronger consideration- — -that of the welfare of the children. In Sindle v. Sindle, 229 Ark. 209, 315 S. W. 2d 893, we said, “As has been so often stated by this Court, the paramount and controlling consideration in all custody cases is the child’s best interest and welfare.” The welfare of the children being of prime importance, it is felt to be essential that Debra and Rebecca be removed from any possible association with Mr. Woolf oik, and we hold that the second marriage so altered circumstances (under which the original decree was entered) as to justify a change in custody.

Appellee points out that the grandparents are not parties to the record, and that accordingly, no proper order can be entered giving to them the custody. We do not agree. The petition was filed by appellant, Troy Gene Powell, and his parents testified that they had agreed to keep and take care of the children while he was in service. Of course, appellant is not in a position to' physically care for the children until his naval service has ended. In French v. Graves, 205 Ark. 409, 168 S. W. 2d 1108, the father filed a petition for change of custody. His parents, who were not parties to the record, testified that if the court should award the custody to their son, they were willing to take care of the child as their own. The court approved this arrangement, and awarded custody to the father.

For the reasons herein set out, the decree of the Chancery Court is reversed, and the cause is remanded with directions to award the custody of the two minor children, Debra and Rebecca, to their father, Troy Gene Powell; however, with the provision that they shall remain within the jurisdiction of the court, in the home of Mr. and Mrs. S. E. Powell, parents of appellant, and, of course, with visitation rights to the mother.

It is so ordered.

       A response was filed by Mrs. Woolfolk denying that there had been such a change of conditions as to justify awarding the custody of the children to appellant. According to the record, this response was not filed until three days after the hearing, January 30th.

       Ark. Stats., § 82-612. “When the state or any county or city health officer shall have reasonable grounds to believe that any person has tuberculosis in active state or in a communicable form, and who will not voluntarily seek a medical examination or treatment, then it shall be the duty of said health officer to make an investigation of such person to determine whether the environmental conditions of the person, or the conduct of the person, is suitable for proper isolation, or contagious control of the case by any type of local quarantine.
      § 82-613. “If the health officer finds that the circumstances are not suitable for proper isolation or contagious control of the case by any type of local quarantine, and said person will not voluntarily seek medical treatment and is a source of danger to others, he shall petition the Probate Court of the county where said person is found, to order the admission of the person to any state owned and operated tuberculosis hospital or sanatorium.
      § 82-614. “The health officer shall set forth in a petition a summary of the factual basis of the determination that the circumstances are not suitable for proper isolation or contagious control of the case by any type of local quarantine, and that said person will not voluntarily seek medical treatment and is a source of danger to others.
      § 82-617. “If upon hearing of the petition the court finds that the circumstances are not suitable for proper isolation, or contagious control of the case by any type of local quarantine, and that said person will not voluntarily seek medical treatment and is a source of danger to others, the court shall order the commitment of said person to a hospital or sanatorium as petitioned for.”

       Also, a child was born of the marriage between appellee and Wool-folk on November 26,1960.

       Of course, Mr. and Mrs. Powell were present in person before the court, and subjected themselves to the jurisdiction thereof.


text:
    Selig v. Barnett.
    5-2375
    350 S. W. 2d 176
    Opinion delivered October 2, 1961.
    [Rehearing denied November 6, 1961.]

      Gene Bairn and John Harris Jones, for appellant.

      House, Holmes, Butter & Jewell, Henry W. Gregory, Jr., Hillsman Taylor and H. Murray Glaycomb. Edward L. Wright, Trustee Ad Litem, for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal concerns the Estate of the late Ben J. Altheimer, who died testate, a resident of Jefferson County, Arkansas, on May 29,1946; and is a “three-cornered” suit between (a) the Guardian of the incompetent son of the Testator; (b) the Foundation Trustees; and (c) the Testamentary Trustees. The appellant in the present litigation is Elsie J. Selig, co-guardian of the person and estate of Ben J. Altheimer, Jr., an incompetent. In her capacity as co-gnardian she is referred to herein as “Intervenor” or “Appellant.” The appellees in the present litigation are the “Foundation Trustees,” the “Testamentary Trustees,” and the “Trustee acl litem.” The Trustees of “The Ben J. Altheimer Foundation” are K. S. Barnett, Jr., Frank L. Webb, John N. Stern, and Hillsman Taylor; and they are referred to as “Foundation Trustees.” The Trustees of the Will of Mr. Altheimer are Charlotte Mills, Frank G-. Bridges, Jr., and Leonard L. Selig; and they are referred to as “Testamentary Trustees.” In the course of the litigation it developed that there was some conflict between the individual interest and the trustee interest of some of the Testamentary Trustees. The Court thereupon appointed Edward L. Wright as Trustee ad litem to act for the Testamentary Trustees in this litigation; and, in such capacity as Trustee ad litem, Edward L. Wright is also an appellee. The present case in this Court is an appeal by the Intervenor from a decree of the Jefferson Chancery Court adverse to her claim; and the Foundation Trustees have cross-appealed to protect their theory of the case.

Mr. Ben J. Altheimer was a citizen of Jefferson County, Arkansas. On April 2, 1942, he executed a Declaration of Trust by which he created “The Ben J. Altheimer Foundation.” Both charitable and private purposes were expressed in the Trust instrument. On the same day he attempted to convey to himself, as Trustee for the said Foundation, certain interests in real and personal property; and he also undertook to designate certain persons as Trustees in Succession to himself, and also to name certain persons and organizations to be beneficiaries of the Foundation. On June 2, 1942, Ben J. Altheimer executed his Will, in which he stated that if his previous conveyances to the Foundation should for any reason be deemed insufficient, then he directed that the said Foundation receive one-half interest in all of his property. He also named certain persons as Trustees of the Will, and certain other persons as beneficiaries under the Will. Mr. Altheimer had previously created the Ben J. Altheimer, Jr. Trust for the benefit of his son. But in his Will, Mr. Altheimer provided that his said son would also receive during his lifetime a substantial portion of the net income from the Testamentary Trust.

As aforesaid, Mr. Altheimer died May 29, 1946; John N. Stern qualified as Executor; the Estate was duly administered, and finally closed in the Jefferson Probate Court on September 12,1950. Ben J. Altheimer, Jr. (hereinafter referred to as “Altheimer Junior”) was declared incompetent on July 2, 1946, and still is; and Elsie J. Selig and R. S. Barnett, Jr. are now, and have been at all times since July 2,1946, the co-guardians of the person and estate of Ben J. Altheimer; Jr. In the course of the administration of the Ben J. Altheimer Estate, questions arose as to what assets belonged to the Altheimer Estate; what assets would go to “The Ben J. Altheimer Foundation;” and whether certain attempted conveyances and gifts by Ben J. Altheimer had been completed. In 1947 the Executor of the Altheimer Estate brought suit against (a) the Trustees of the Foundation; (b) the Trustees of the Will; (c) the co-guardians of Ben J. Altheimer, Jr.; and (d) certain other parties. The suit was for construction of the Will of Ben J. Altheimer and a determination as to what properties would belong to the Foundation and what properties would go to other parties. It was Case No. 24988 in the Jefferson Chancery Court, and a decree— subsequently to be discussed in some detail — was rendered by that Court on September 21, 1948, finding that the Foundation was entitled to one-half interest in certain assets. Thereafter, the Estate of Ben J. Altheimer was duly closed in the Jefferson Probate Court on September 12, 1950, as aforesaid.

It was subsequently discovered that the Altheimer Estate owned an interest in some other property, herein referred to as the “Twin City Property.” The interest of the Altheimer Estate in this property was unknown to the Foundation, and probably also to the Executor and the Testamentary Trustees, until several years after the 1948 decree. In 1957, the Foundation Trustees brought the present suit against the Testamentary Trustees, seeking to reopen the 1948 decree and have the Chancery Court award to the Foundation Trustees an undivided one-half interest in the Twin City Property as subsequently discovered assets which would pass either under the deed or the will of Altheimer, one-half to the Foundation Trustees, and one-half to the Testamentary Trustees.

Elsie J. Selig, as co-guardian of the person and estate of Ben J. Altheimer, Jr., an incompetent, intervened in the present suit and alleged: (a) that the Foundation was void; (b) that all of the assets of the Ben J. Altheimer Estate held by the Foundation Trustees should be held by the Testamentary Trustees; (c) that the 1948 decree (in Case No. 24988 in the Jefferson Chancery Court) was a consent decree and could not bind the incompetent Altheimer Junior and his Guardians; and (d) that the 1948 decree should be set aside and the Foundation’s assets should pass to the Testamentary Trustees so as to result in a substantial benefit to her ward. There was thus presented to the Jefferson Chancery Court in Case No. 31322 (from which comes the present appeal) a “three-cornered” lawsuit between (a) the Intervenor; (b) the Foundation Trustees; and (c) the Testamentary Trustees; but the bulk of the lawsuit involved the questions raised by the Intervenor against the Foundation Trustees. An enormous record was developed: there are more than two thousand typewritten pages of evidence, and the printed briefs contain hundreds of pages. In deciding the case the learned Chancellor wrote an opinion of forty-five pages, discussing and disposing of every possible contention in the case. It is an erudite opinion and has proved of great value to us.

The trial in the Chancery Court resulted in a decree finding (a) that the Intervenor was not estopped by the 1948 decree; (b) that the Intervenor could question the validity of the Foundation; (c) that the Foundation was valid because the Declaration of Trust creating the Foundation was adopted by reference into the Will of Altheimer; (d) that the Foundation should have received the property that it did receive in the 1948 decree; and (e) that the Foundation Trustees should recover half of the Twin City Property as against the Testamentary Trustees. There was no appeal by the Testamentary Trustees or the Trustee ad litem; but the Intervenor has appealed; and the Foundation Trustees have cross-appealed to protect their theory of the case in the event the theory adopted by the Chancery Court should be held erroneous.

The 1948 decree sustained the validity of “The Ben J. Altheimer Foundation” and declared that the Founelation Trustees would receive approximately one-half of the total Altheimer Estate. To avoid the validity of the Declaration of Trust that created “The Ben J. Altheimer Foundation” it became necessary in the present litigation for the Intervenor to attack the 1948 decree, since that decree found and declared the said Foundation to be valid. The Foundation Trustees claimed, inter alia, that the 1948 decree was res judicata, and that the Intervenor was bound by that decree.

I. The Rule Of Res Judicata. The threshold question, therefore, is whether the Intervenor is barred by the rule of res judicata and thereby prevented in the present litigation from successfully questioning the validity of the 1948 decree, i. e., the decree in Case No. 24988 in the Jefferson Chancery Court. In Missouri Pacific Rd. Co. v. McGuire, 205 Ark. 658, 169 S. W. 2d 872, we quoted from and adopted as our own the statement then found in 30 Am. Jur. 908:

“ ‘Briefly stated, the doctrine of res judicata is that an existing final judgment rendered upon the merits, without fraud or collusion, by a court of competent jurisdiction, is conclusive of rights, questions, and facts in issue, as to the parties and their privies, in all other actions in the same or any other judicial tribunal of concurrent jurisdiction.’ ”

In 30A Am. Jur. 376, “Judgments” § 328, it is said that the doctrine of res judicata is a branch of the law of estoppel; and that estoppel is frequently used in connection with the rule which precludes the relitigation of particular facts and issues. The 1948 decree in the Jefferson Chancery Court was a decree rendered in a court of competent jurisdiction. To escape the rule of res judicata, the Intervenor claims: (a) there was fraud in the 1948 decree; (b) the 1948 decree was by consent (collusion); and (c) there was no proper service on the ward of the Intervenor. We proceed, therefore, to examine the Intervenor’s attacks on the 1948 decree.

II. There Was No Fraud In The 1948 Decree. In the pleadings, the Intervenor claimed that the 1948 decree was obtained by fraud, but the Trial Court found that there was no fraud of any kind in the 1948 suit and decree. The Chancellor’s opinion incorporated in the decree contains this language: ‘ ‘. . . the Court finds that there has been no fraud, either actual or constructive, committed by any of the parties to this or the 1948 case.” We agree with the Chancellor: there is not the slightest scintilla of evidence of any fraud in the obtaining of the 1948 decree.

ITT. The 1948 Decree Was Not A Consent Decree. The Intervenor urges that the 1948 decree was a consent decree; but we find this claim to be without merit. “A judgment by consent is in effect an agreement or contract of the parties, acknowledged in court and ordered to be recorded, with the sanction of the court.” 30A Am. Jur. 353, “Judgments” § 144. “A judgment by consent of the parties is a judgment, the provisions and terms of which are settled and agreed to by the parties to the action in which it is entered, and which is entered ■of record by the consent and sanction of the court; . . . A consent judgment is not a judicial determination of .any litigated right, and is not the judgment of the court except in the sense that the court allows it to go upon "the record and have the force and effect of a judgment; . . .” 49 C. J. S. 308, “Judgments” § 173. The 1948 ■decree was not a consent decree. The record shows that the Court heard evidence and made specific findings: •some of the evidence heard in the 1948 case is in the record now before us. There is no merit to the Intervenor’s argument that the 1948 decree was a consent ■decree.

IY. The Guardians Of Altheimer Junior Ashed .And Obtained Affirmative Relief In The 1948 Case. The Intervenor argues that there was no service of process on the insane defendant, Ben J. Altheimer, Jr., in the 1948 suit; and that, therefore, the decree is void as to the said insane defendant under our holding in Wilder v. Wilder, 208 Ark. 521, 186 S. W. 2d 933. But the distinguishing difference between the Wilder case and the case at bar is that in the Wilder case the insane defendant sought no relief on the original action; whereas, in the case at bar, the co-guardians of the insane Ben J. Altheimer, Jr. sought and obtained affirmative relief in the 1948 case. Those co-guardians of Ben J. Altheimer, Jr. stood before the Court in 1948 the same as plaintiffs, because they sought affirmative relief and obtained it: and as plaintiffs service of process on the ward was not necessary. Evans v. Davis, 146 Ark. 595, 226 S. W. 520. The extent of the relief that they obtained was enormous.

By their affirmative action, the guardians obtained for their ward, Altheimer Junior, free of any administrative costs, (a) conveyances to hundreds of acres of land, (b) promissory notes and bonds for thousands of dollars, and (c) corporation stock certificates for thousands of shares.

Y. Altheimer Junior, And His Guardians, Are Estopped From Attaching The 1948 Decree. Having held, as we have, that the 1948 decree was free of fraud, that it was not a consent decree, and that the guardians stood as plaintiffs in that case, we go further and consider whether, under such circumstances, the insane ward and his guardians are estopped from attacking the 1948 decree; and we conclude that such estoppel exists.

In Woodall v. Moore, 55 Ark. 22, 17 S. W. 268, Arthur IVoodall became of age in 1884 and in 1885 he instituted suit to re-open a former case, claiming that he was a minor in the former case and was not bound by it. It was shown that in the former case the minor’s guardian had intervened and filed a cross bill for relief. In holding that Arthur Woodall could not successfully attack the decree in the former case, even though rendered during the minority of Woodall, Mr. Justice Hemingway used this language: “When infants by their guardian or next friend go into Court to assert their rights, they proceed under the eye of the Court, and are supposed to enjoy its care and protection, and conclusions therein reached are as binding upon them as upon persons sui juris. 1 Herman on Est., sec. 164; Corker v. Jones, 110 U. S. 317; Tyler on Infancy, p. 172; Winchester v. Winchester, 1 Head 484; see Bickel v. Erskine, 43 Iowa 213; 1 Black on Judg., sec. 198.”

In Fidelity & Deposit Co. v. Meyer, 197 Ark. 42, 121 S. W. 2d 873, both the guardian and the wards were held estopped by the guardian having acted for her wards in a previous judicial proceeding. The guardian had in 1931 sued for and obtained property for • her wards. Years later the guardian and the wards sought to hold others liable. We held that the former action by the guardian estopped the guardian and the wards from the second action six years later; and, after quoting from Woodall v. Moore, supra, we said:

“Every proceeding in the course of the administration relative to the property in question was done under the eye of the court and under its care and protection, and in view of this fact the action of the guardian in holding and treating this asset as valuable for all these years under such supervision is attributable to the minors, and that both the minors and the guardian are clearly estopped in good conscience from prosecuting this suit, especially is this true in view of the fact they have not produced any evidence of actual fraud which caused them to lose anything, and simply upon the ground that an order to make the investment was not first procured from the probate court.”

The holdings in other jurisdictions are in accord with our cases. In 34 C. J. 1023, “Judgments” § 1446 cases are cited from many jurisdictions to sustain this text: “A ward is concluded by the judgment in any action concerning his interest in which he was legally represented by his guardian. . .” In discussing the binding force of a judgment against a person under disabilities it is stated as regards insane persons in 50 C.J.S. 295, “Judgments” § 766: “The ward is bound by a judgment in an action properly brought by his committee.”

Reflection shows the necessity of such a holding: a guardian for an insane person brings action for and on behalf of his ward and the action is fairly and legally tried and concluded and the judgment paid; if the insane person be not bound by that proceeding, then at any time during the life of the insane ward a subsequent proceeding could be instituted and there would be an unending number of actions. Common sense and fairness demand that the first action when fairly and legally concluded should be final and binding.

VI. Conclusion. In the case at bar, the guardians of the insane Altheimer Junior sought and obtained for him substantial relief in the 1948 suit. That suit was fairly and legally tried and concluded. The 1948 decree is final and the guardians and their ward are bound by it; and cannot in this present case successfully attack the 1948 decree. The fact that the Foundation Trustees were able to obtain from the Testamentary Trustees an interest in subsequently discovered assets (from which decree the Testamentary Trustees have not appealed) gives the Guardian-Intervenor no standing to assail the entire 1948 decree. Since the Intervenor cannot attack the 1948 decree it becomes unnecessary for us to discuss the many other points presented in the excellent briefs.

Affirmed.

Harris, C. J., not participating.

       The other guardian with Elsie J. Selig is R. S. Barnett, Jr., but as co-guardian he did not join in this suit.

       In Selig v. Morrison, 230 Ark. 216, 321 S. W. 2d 769, we affirmed the action of the Chancery Court in appointing Mr. Wright as Trustee ad litem.

       In November 1945 Mr. Altheimer executed a Codicil to the Will which changed the name of the previous Executor to that of John N. Stern.

       The trust instrument recited in Art. VII, Section 7: “§ 7. The settlor of this trust has provided only a limited life income in this trust for Ben J. Altheimer, Jr., the son of the settlor, by reason of the fact that the said Ben J. Altheimer, Jr. has independent means and has substantial interests in other trusts and estates. It is nevertheless the desire of the settlor that the trustees of this trust shall take unto themselves the responsibility for the well-being of said Ben J. Altheimer, Jr. during his lifetime, and that the trustees shall make it their duty to accord to him their care in his personal well-being and in his financial affairs, with relation to his other interests as well as his interests in this trust.”

       The Foundation Trustees claim: res judicata, estoppel, and limitations; that the 1948 decree was not a consent decree; that the Intervenor selected her own counsel to represent her in the 1948 litigation; that the Foundation was a valid inter vivos Trust; and that at all events the Declaration of Trust creating the Foundation was incorporated by reference into the Will of Ben J. Altheimer.

       The 1948 decree contained this finding: “The Declaration of Trust creating the Ben J. Altheimer Foundation was duly executed by the Testator on April 2, 1942, at which time he also executed a conveyance of the properties intended to be transferred to himself as Trustee for said Foundation, which conveyance was attached to said Trust Declaration and should be considered and construed by the Court along with the provisions of the Trust Declaration; that said Trust Declaration and the conveyance attached thereto created a valid trust known as The Ben J. Altheimer Foundation, which became at that time a valid and effective trust as between the said Ben J. Altheimer and those parties hereto who claim an interest under the will; . . .”

       The statement may now be found in 30A Am. Jur. 371, “Judements” § 324.

       If the Intervenor could have established that the 1948 decree was ■a consent decree, then the Intervenor could have next argued that the ■.insane ward was not bound by such consent decree.

       Another case similar to the Wilder case is Floyd v. Isbell, 211 Ark. 631, 201 S. W. 2d 755.

       In the complaint, Stern, as Executor of the Altheimer Estate, said that there was a question as to whether stock certificates, deeds, and other conveyances found in the Testator’s possession had ever been delivered so as to constitute completed gifts. The co-guardians of Altheimer Junior, in their pleadings, prayed inter alia: “That the respective properties, securities, and cash hereinabove claimed . . be established and confirmed as effectively donated gifts . . . that the executor ... be authorized and directed ... to convey, pay over, and deliver . . . such property . . .”


text:
    Cox v. Berry.
    5-2454
    349 S. W. 2d 661
    Opinion delivered October 2, 1961.

      R. W. Raster, for appellant.

      J. Fred Jones, for appellee.
   George Rose Smith, J.

The appellant and the appellee own adjoining ten-acre tracts in Pulaski county. On December 2, 1959, the appellant brought this suit to recover damages resulting from the appellee’s action in digging a drainage ditch along the boundary line between the two tracts. After a hearing upon the merits the chancellor held that the suit was barred by the three-year statute of limitations governing actions for trespass upon land. Ark. Stats. 1947, § 37-206. The correctness of that conclusion is the issue on appeal.

The ditch was dug at least five years before this suit was instituted. The appellee, who was preparing to subdivide his tract, employed a civil engineer to excavate a channel that would drain the land in accordance with the governing planning regulations. The engineer meant to put the ditch entirely on the appellee’s property, but by mistake the excavation encroached slightly upon the appellant’s land. Through the years the ditch has been widened by erosion. According to a survey made shortly before the trial the intrusion upon the appellant’s land varied from about two feet to a maximum of eight feet at one point.

The chancellor’s conclusion was correct. The statute of limitations has evidently run as far as the original encroachment upon the appellant’s land is concerned. As to the additional damage by erosion there is nothing to indicate that this widening of the channel was not the natural and foreseeable result of ordinary rainfall and surface drainage. Thus the injury to the land was certain and permanent rather than uncertain and recurrent. The case falls within our holding in Turner v. Overton, 86 Ark. 406, 111 S. W. 270, 20 L. R. A. N. S. 894, where with reference to a situation similar in principle we said: “The evident object of digging the ditch was for the purpose of straightening the channel of the creek across the lands through which it runs, and thereby draining the lands. It was obvious that water would flow faster through a straight than through a crooked channel. That the velocity of the water in the channel of the ditch was greater than that in the old channel of the creek must have been perceptible from the first. That the swifter current would cause the banks of the ditch to be worn away, and thus make it deeper and wider, was also apparent. The present and future effect upon the land could have been ascertained with reasonable certainty, and the injury complained of was permanent in its character.

“Therefore we are of the opinion that the action is barred by the statute of limitations.”

Affirmed.