author: Paul Ward, Justice. John A. Fogleman, Justice.

text:
    J. W. Shafer, et al v. Donald L. Akers, et al
    4670
    433 S.W. 2d 142
    Opinion Delivered October 21, 1968
    [Rehearing denied November 25, 1968.]

      Charles W. Garner for appellant.

      Lightle & Tedder for appellees.
   Paul Ward, Justice.

This litigation is over the ownership of a strip of land eighty feet wide and approximately 1300 feet long. Since this parcel will be mentioned frequently it will, for brevity and clarity, be referred to as parcel (X). It lies between Lot B and Lot 2 in the old town (now abandoned) of Georgetown, in White County.

IHeadings. On March 15, 1965 Donald L. Akers and George Leroy Akers and their wives (appellees) filed a complaint in chancery court against J. W. Shafer and Robert O. Shafer (appellants), alleging: (a) They are the owners of forty acres of land described by metes and bounds, and including parcel (X); (b) Appellants are trespassing upon their land and are threatening to erect a fence thereon; (c) Plaintiffs have. already planted crops on the land being fenced by defendants. The prayer was that appellants be enjoined from such actions. A temporary injunction was issued on Mav 3, 1965.

On May 21, 1965 appellants filed an Answer to the above complaint, denying “each and every material allegation”, and asking that the complaint be dismissed. Following a Motion by appellants to strike the description of land from the complaint, appellees filed an “Amended Complaint” and attached a copy of the deed under which they claimed title. (The deed, dated June 10, 1964 and filed for record July 28, 1964, shows a conveyance by the Arkansas Game and Fish Commission to appellees of forty acres — described by raetes and bounds).

On September 26, 1966 appellants filed an “Answer and Cross-Complaint”, consisting of thirteen pages. The Answer, in substance, states: (a) general denial; (b) there is a defect in appellees’ chain of title; (c) the subject of this action is parcel (X) which lies within the corporate limits of Georgetown and has grown up in weeds and is unimproved, and appellants and their father have paid taxes on said parcel since 1950. In the Cross-Complaint appellants detail the conveyances through which they acquired title to parcel (X). On November 1,1966 appellants also, by amendment, alleged that they had a constitutional right to parcel (X) under the “doctrine of Stare Decisis”. To the above pleadings appellees entered a general denial.

The issues raised by the above pleadings were presented upon a full hearing, and on January 23, 1967 the Court held: (a) That the parcel of land involved in this cause lies between Block 2 and B on the recorded plot of the townsite of Georgetown (Unincorporated), filed December 11, 1908 and designated as a railroad right-of-way; (b) appellees acquired color of title to said strip under a deed from the Arkansas Game and Fish Commission which acquired title to said Blocks 2 and B in March 14, 1958; (c) that thereafter the Commission (by its agents and employees) exercised open, adverse, and uninterrupted possession of all the land, including said Blocks; that such possession, together with the possession of appellees, was for more than seven years; (d) that no part of parcel (X) was at any time used as a railroad right-of-way, but at all times for fifty years said parcel has been used by the owners of the adjoining land, ‘‘to-wit, Blocks 2 and B”, and; (e) appellees are the owners of parcel (X) by adverse possession, and appellants are enjoined as prayed.

On appeal appellants argue ten points for a reversal. It is unnecessary to discuss all these points because we have concluded that the trial court’s decree must be affirmed for the reasons hereafter mentioned.

Appellants attempt to establish their title to parcel (X) in three different ways. (1) By a series of conveyances beginning as far back as December 12, 1908 Stoneman-Zearing Lumber Co. of Arkansas executed a deed to the Missouri & North Arkansas Railroad Company conveying several pieces of land. By succeeding conveyances title is traced to R. E. Shafer by a deed dated January 7, 1950. It is here pointed out that appellants are concededly the heirs of R. E. Shafer. (2) R. E. Shafer died, testate, in March, 1960, and his will was probated. Later, in 1961, the Chancery Court quieted title to said lands in appellants. (3) Appellants claim .they (together with their father) have paid taxes on parcel (X) since 1960 and up to 1965.

A careful examination of the many conveyances and orders in appellants’ chain of title fails to show, to our satisfaction, a definite description of parcel (X). For instance, the collector’s certificate shows Joseph W. Shafer paid taxes on: “All former M. & A. Ry. Co. r/o/w/ in Georgetown, Ark., Section 20, Township 6 North, Range 4 West, 22.70 acres”.

It is not disputed that the record shows an unbroken chain of title to certain lands (including parcel (X) in the Arkansas Game and Fish Commission. The deed to the Commission was executed March 14, 1958 and conveyed, among other lands, said Block 2 and Block B. It is not disputed that parcel (X) lies between the above blocks. Later the Commission exeanted a deed to appellees conveying forty acres of land, described by metes and bounds, in which parcel (X) is situated.

In view of what we have pointed out heretofore, we are unable to say the trial court erred in holding appellees acquired title to parcel (X) by adverse possession. The weight of the testimony shows that appellees and their predecessors in title have been in open, actual, and adverse possession for more than seven years under color of title.

Affirmed.

George Rose Smith, Brown and Fogleman, JJ., concur.

John A. Fogleman, Justice.

I would affirm the decree of the trial court. I do not think that either party sustained his burden of proof of adverse possession by a preponderance of the evidence. I would affirm because of appellants’ noneompliance with Buie 0(d). That section of our rules requires that an appellant reproduce and attach to his abstract all exhibits which must be examined for a clear understanding of the testimony, unless this requirement is waived by this court on motion. There are numerous deeds in both chains of title that refer to maps for identification of key points in land descriptions. Beferences are also made to survey stations on certain maps. In addition, the Bill of Assurance refers to a plat. None of these are reproduced. The abstract of the land descriptions in certain of the deeds exhibited cannot be followed or compared with descriptions in other deeds in the manner they are set out in the abstract.

While appellees have supplied certain deficienees in land descriptions in some of the conveyances to the extent necessary to show that part of the lands conveyed to the railroad company were conveyed as a right-of-way only and not in fee simple, even these descriptions cannot be properly identified without reference to a map or plat. I have been unable to understand the issues as to record title on the abstracts before us. The exhibits in question are not such as could not be reproduced practically.

The burden of proving the strength of their own title was on appellants. Consequently, I would affirm the trial court’s decree.

I am authorized to state that George Rose Smith and Brown, JJ., join in this concurrence.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    Richard Carlie Hooton v. State of Arkansas
    5380
    432 S.W. 2d 766
    Opinion Delivered October 21, 1968

      Howell, Price & Worsham for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   Lyle Brown, Justice.

Appellant instituted proceedings in the trial court under our Criminal Rule I. He appeals from that court’s refusal to vacate sentences imposed in 1966. He alleges that his guilty pleas were induced by violations of his constitutional rights. Specifically, he contends that the pleas were coerced by (1) threats and promises of leniency, (2) mistreatment while in jail awaiting trial, and (3) possession by the Pulaski County authorities of a statement taken by the FBI without Plooton being advised of his rights.

In September 1964, Hooten and his confederate were arrested in Florida with a stolen car, for which they were sentenced for violation of the Dyer Act. The body of the car owner was found in Pulaski County. That resulted in the questioning of the two men by the FBI, following which they were brought to Little Rock and charged with the death of the car owner. While Hooton was incarcerated, a jailer was viciously attacked while the two men were trying to escape. That incident resulted in a charge of assault to kill. After a mistrial as to Hooton’s confederate and a number of other factors resulting in delay, both men entered pleas of guilty to murder and to assult to kill. They received concurrent sentences of twenty-one years each. Hooton’s appeal stems from those sentences.

Under the holding in Machibroda v. United, States, 368 U.S. 487 (1962), Hooton urges us to set aside the pleas of guilty. The facts in that case are substantially foreign to the facts here. But irrespective of the facts, that decision pronounces the law to be that a guilty plea induced by promises or threats is void. Machibroda cites with approval Kercheval v. United States, 274 U.S. 220 (1927), where it is said that a plea of guilty is as conclusive as a jury verdict. For that reason and out of just consideration for the accused, “courts are careful that a plea of guilty shall not be accepted unless made voluntarily after proper advice and with full understanding of the consequences.” We approach appellant’s three points in light of the principles set out in the two cited cases.

Threats and Promise of Leniency. Petitioner claims that he was told his co-defendant would receive capital punishment unless he (Hooton) entered a plea of guilty; and further, that if Plooton would plead guilty, the latter would get only twenty-one years. We quickly dispose of the threat charge. Attorney Allan Dishongh, who worked diligently with both men as their court-appointed attorney, categorically denied making any such representations to Hooten. Now as to the promise of leniency, these facts are fairly undisputed. Attorney Dishongh was informed by the prosecuting attorney that the latter would be agreeable to accepting pleas of guilty from both men, whereup'on the prosecutor would recommend that the sentences of each would run concurrently. Dishongh passed this information along to the defendants for them to make the decision. Dishongh says he explained the nature of the plea and the consequences. The attorney expressed the opinion at the Rule I hearing that the offer was a good one for the defendants. They were to plead guilty to second degree murder and assault to kill and receive concurrent sentences of twenty-one years ¡each. The practical result of the proffered compromise was. that Hooton would escape the possibility of capital punishment in return for accepting a sentence of twenty-one years.

Alleged Mistreatment While in Jail. Hooton testified that after being in jail for some two years, during which time he was harassed and beaten, he entered a plea of guilty to escape the close confinement and mistreatment. Jail incarceration for two years while awaiting trial is a long time. "We have examined the record to ascertain the reasons. Hooton was timely brought before the court for arraignment. Upon entering a plea of not guilty by reason of insanity, he was committed to the State Hospital for observation. His first attorney obtained a delay to see if Hooten could raise money for ¡employment of a private psychiatrist. Those facts apparently caused a delay in trial beyond two sessions of court. A severance was asked for and granted; Hooton’s companion was tried and a mistrial resulted. Hooton became dissatisfied with his attorney and another was appointed. About midway in their incarceration Hooton and his companion attempted an escape which resulted in new charges of assault with intent to kill the jailer. The recited factors naturally caused numerous delays, particularly in a court with a congested docket. We are convinced that the delay of two years was mostly of Hooton’s own making and certainly there is no evidence that the State was dilatory in bringing him to trial.

Hooton testified to numerous acts of physical mistreatment and was corroborated in some respects by his companion and another prisoner, both being returned from the penitentiary to testify. Petitioner represented himself as a man of nonviolence. For example, he described the altercations with the murder victim and the jailer, but he insisted that all the violence was committed by Hooton’s companion. Those statements are inconsistent with the several joint ventures of lawlessness of the two men and doubtless so impressed the experienced trial judge. Furthermore, two jailers and two sheriff’s deputies, whose experiences in attending prisoners covered the full period of incarceration of Hooton, denied having mistreated the prisoners or having seen evidence of mistreatment administered by others. In fact it was testified that Hooton and his companion were good prisoners and gave trouble only once. That involved the attempted escape. The prisoners were on several occasions removed from their cells, taken to a telephone, and allowed to make long-distance calls. In the attempted escape the State’s evidence showed that one of the jailers was “beaten, stomped, and stabbed,” and temporarily blinded in one eye. That jailer was able to retrieve his gun and stop the escape. The manner in which the jailer held his temper is not only commendable but is corroborative of the State’s witnesses’ denial of mistreatment.

Hooton’s Statement to the FBI. Before Hooton was transferred to Pulaski County for prosecution, a written statement concerning the homicide was taken by the FBI and forwarded to the prosecuting attorney. In that statement Plooton maintained that his companion ‘ ‘ was the man that strangled him, struck him, and rolled him.” Hooton denied having touched the victim. The only action to which Hooton confessed was the theft of the victim’s car. Petitioner maintains that the statement was taken without his being advised of his constitutional rights and that his knowledge that the authorities in Pulaski County possessed the statement was a coercive factor in making involuntary his plea of guilty to murder. Such reasoning is wholly illogical and unimpressive. First, if the statement was taken without constitutional warnings, it could never be used against him; second, the statement was in fact a denial of complicity in the murder; and third, it was never presented to the trial court which imposed the sentences. Since the statement was never used against him the formalities of advice to the accused recited in Miranda are not of particular importance. Blake v. State, 244 Ark. 37, 423 S.W. 2d 544 (1968).

The trial court filed its findings of fact and conclusions of law reflecting a comprehensive evaluation of the proceedings. The findings of fact there made are amply supported by the evidence and, after examing the record, we conclude that those findings should be affirmed.

It is so ordered.


text:
    Arkansas State Highway Commission v. George Poteete
    4633
    432 S.W. 2d 774
    Opinion Delivered October 21, 1968

      Thomas B. Keys and James K. Biddle for appellant.

      Gordon, Gordon & Eddy for appellees.
   Lyle Brown, Justice.

This is an eminent domain proceeding instituted by the Arkansas State Highway Commission in connection with the construction of Interstate 40 through the town of PlumervilLe, Conway County. The taking traversed a substantial portion of a subdivision owned by appellees, George Poteete and wife. The Highway Commission’s principal point on appeal concerns the fact that the jury was permitted to consider possible damages to twenty-eight lots, no part of which was in the actual taking.

Sixty full lots and portions of thirty-three lots were within the new right-of-way. The Commission contended that those 93 lots were the only lots to be considered in awarding compensation. It was the landowners’ theory that 28 lots outside the actual taking were diminished in value because they were so interdependent with the parcels taken. The trial court submitted to the jury the described controversy in this manner: If the jury found that each of the 121 individual lots (60 taken, 33 partially taken, and 28 not touched by taking) constituted a single unit of value, then the Poteetes could not recover for any depreciation in value of the 28 lots; on the other hand, if the jury found there was a connected or wnity of use of the 121 lots, then the entire 121 lots should be taken as a unit of value and used in calculating compensation.

The Commission relies principally on Arkansas State Highway Comm’n. v. Taylor, 238 Ark. 278, 381 S.W. 2d 438 (1964). That case involved lots in a subdivision. ¥e held that where the only use shown for the lots was a separate and distinct use and the holding of each lot by itself, each individual lot constituted a unit of value. In that event those lots not in the actual taking could not be considered in calculating compensation.

The fact situation in Taylor hardly makes it applicable to the case at bar. There it was emphasized that no testimony showed that any one of the lots in the subdivision was used, or would be used, in connection with any other lots. We hasten to reaffirm the law in Taylor, but it does not encompass every situation in which there is a partial taking of a subdivision. Long* before Taylor, our Court made this pronouncement in Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S.W. 375 (1908) :

“This court has frequently held that in a proceeding by a railroad company to condemn a right of way the assessment of damages is not restricted to the injury done to the legal subdivision of land described in the petition, and that if the tract described is part of a larger connected body of land the owner may recover for the injury done to the tract as a whole. It follows from this that where the whole of a tract of land is taken it should be valued as a whole, and not according to the legal subdivisions as distinct and separate parcels of land.
“ ‘Whether a particular lot of land constitutes an independent parcel is a question which cannot be determined in the affirmative by the mere fact that it is separated from other land by a highway or street, or by paper lines, or by fences; nor can it be determined in the negative by the mere fact that it is all in one ownership and is not divided by streets or by paper lines.’ Wellington v. Boston & Main Bd., 164 Mass. 380; ...”

In general terms it may be said that the controlling principle is “separate and independent” utilization as opposed to a “connected or unity of use.” That is the essence of the test in Boles. See Nichols Em. Dom. Supp. V. 4, § 14.31; USA v. 26.81 Aeres, 244 F. Supp. 831; State v. Jay Six Cattle Co. (Ariz.), 353 P. 2d 185; U.S. v. Powelson, 118 F. 2d 79.

An examination of the lots, including the utilities, reveals these elements of interdependence or evidence of the same:

1. A substantial number of the “untouched” lots on the north of the interstate are dependent, for sewage purposes, on Wall Street, which was taken, that being the natural outfall of a sewer line;

2. Access to the “untouched” lots on the north:

(a) Lots 1-12 in the northwest corner have no access except through lots that were in the taking (saving two lots bordering on Highway 92);

(b) Lots 2-6, Block 2, and Lots 13, 14, Block 3, are dependent for access on streets and lots in the taking;

(c) Lots 1, 2, and 3, Block 1 could not be reached except by traversing several adjoining lots (excepting Lot 1 which is bordered by a street on the east side) ;

3. “Untoucher)” lots in the southwest corner:

(a) Lot 25, which was partially taken, abutted Highway 92. Lot 26 abuts Lot 25 on the east. Testimony was to the effect that Lots 25 and 26 needed to be joined in a single sale to make an attractive unit with highway frontage;

(b) The highest economic value of Lots 26-30 was said to be dependent on the top tier of five lots adjacent on the north, which tier was partially taken;

(c) A partial taking of Lot 40, which abuts Highway 92, allegedly destroyed the marketability of Lot 39; those two lots would have been combined to make an ideal building unit with highway frontage;

(d) The taking closed the west end of a ten-foot alley running behind Lots 26-30. Appraiser Barnes testified that none of those lots could ever be serviced by the dead-end alley;

4. Appraiser Barnes pictured the highway right-of-way as running the full length, east and west, of the subdivision and roughly cutting a wide swath through the center. He reasoned that the street pattern serving most of the “untouched” lots had been destroyed. (A majority of the streets in the affected area now “dead-end” into the new highway.) He also asserted that the right-of-way would have to be utilized to run sewer lines to the “untouched” lots on the north. That was the route laid out by the town of Plumerville. Presently, according to Barnes, the cost of laying those facilities would be prohibitive;

5. There was also evidence that a number of the lots would necessarily be sold in groups of “three-lot-deep tiers”; and others would be sold in two-lot units. Witness Pearce testified that a normal homesite in Plumerville required two or more lots of the general size of those in the subdivision.

Nichols summarizes the rule in this manner, which we consider applicable here:

“In many cases the court can, as a matter of law, determine that lots are distinct or otherwise, but ordinarily it is a practical question to be decided by the jury or other similar tribunal which passes upon matters of fact, which should consider evidence on the use and appearance of the land, its legal divisions and the intent of its owner and conclude whether on the whole the lots are separate or not.” Nichols Em. Dom. Supp., V. 4, § 14.31.

We hold that the trial court acted properly in submitting the matter to the jury and we have summarized evidence which we think made the question one for the jury to resolve.

One other contention is urged for reversal. The Commission contends that testimony regarding compensation for the twenty-eight lots, no part of which was taken, would be in the nature of an assertion for special damages; that special damages were not pleaded and therefore no recovery is allowable. The answer is that the landowners here tried their case on the theory that the 121 lots had a unit of use and that the taking of a-part of the unit diminished the value of the residual, or the twenty-eight lots. Diminution in value of part of an individual tract- — if it is a unit — is not classified as special damages. Arkansas State Highway Comm’n. v. Lewis, 243 Ark. 943, 422 SW. 2d 866 (1968).

Affirmed.

Byrd, J., dissents.


author: John A. Fogleman, Justice.

text:
    Clarence D. Brown v. Elmo Taylor, Judge, Lee Circuit Court
    5358
    432 S.W. 2d 751
    Opinion Delivered October 21, 1968

      Gary L. Eubanks for petitioner.

      Joe Purcell, Atty. Gen. and Don Langston, Asst. Atty. Gen. for appellee.
   John A. Fogleman, Justice.

Petitioner, who was convicted of burglary and grand larceny in the Circuit Court of Lee County on November 2, 1966, seeks a writ of mandamus to require that court either:

(1) conduct a hearing for post-conviction relief at which he would have the assistance of counsel and the proceedings would be reported;
(2) conduct an evidentiary hearing from the record of which this court might determine whether he had been accorded all his constitutional rights; or
(3) grant a new trial.

The petition was filed on April 5, 1968. No response has ever been filed, but the brief filed by the Attorney General has adequately set out the position of respondent on the allegations of petitioner.

Petitioner is in custody at the Arkansas State Penitentiary under commitment from the circuit court to a sentence of 12 years on his conviction there. His conviction was not appealed at the time he was sentenced. He filed a petition for mandamus in the trial court 20 days after having been sentenced, asking that a record of. his trial be furnished him as a pauper without cost to him in order that he might prepare an appeal. While no formal order was entered of record, a hearing on petitioner’s pleading was held on March 8, 1967. The court’s docket entry substantiates the circuit judge’s statement that petitioner’s pleading was considered as a motion for new trial and overruled. An appeal was granted to petitioner and the court stated that he would be furnished a transcript of the record without cost to him. The attorney employed to represent petitioner at his trial was appointed to represent him in further proceedings.

At this hearing, petitioner only testified as to his poverty and the fact that he had not employed counsel for an appeal, after having identified his pleading. He stated that he had discussed the matter of an appeal with his attorney right after the trial, but that he did not then appeal because he was not able to pay the expense involved. There is nothing in the record to show why the appeal granted was not perfected. In petitioner’s brief here it is stated that the transcript was not furnished by the court reporter until May of 1968, in spite of repeated demands by the petitioner, his attorney, and his relatives. There is nothing in the record to substantiate these statements, but the court reporter’s certificate is dated April 25, 1968, and the clerk’s certificate is dated May 29, 1968.

On December 18, 1967, appellant filed a verified pleading in the circuit court labeled “Petition for Writ of Habeas Corpus,” asserting Criminal Procedure Eule I as jurisdictional authority. He advanced eight points as grounds for collateral attack on his conviction and sentence, among which was an allegation that he was, in effect, denied his right to appeal. His verification included an affidavit as to his poverty, which is not controverted. Petitioner included a motion for process for certain witnesses along with his petition for post-conviction relief. On February 16, 1968, the circuit court denied petitioner any further hearing, even in post-conviction proceedings. According to the court’s order, this denial was based upon petitioner’s failure to perfect the appeal granted March 8, 1967, and upon a finding that the record in the case disclosed that all of the rights of petitioner had been properly adjudicated in the circuit court. There was no specification by the trial court of the parts of the files or records relied upon to sustain the court’s findings, as required by Criminal Procedure Rule 1(C) whenever the record shows conclusively that a petitioner is entitled to no relief. While some of the points asserted in petitioner’s pleading do not seem to raise issues which would subject the judgment of conviction to collateral attack, we have been unable to find from the record any showing that there was no merit in some of petitioner’s contentions, e.g., that his arrest was unlawful, that he was, in effect, denied his right of appeal, or that he was denied due process of law by the court’s having permitted the sheriff to enter the jury room during jury deliberations on his case.

The United States Supreme Court has made it quite clear that any action or omission on the part of a state or any of its officers, which, in effect, denies to a defendant an appellate review because of his poverty, constitutes a violation of the equal protection clause of the Fourteenth Amendment to the United States Constitution. Dowd v. Cook, 340 U.S. 206, 71 S. Ct. 262, 95 L. Ed. 215, 19 ALR 2d 784 (1950); Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, 55 ALR 2d 1055 (1955); Eskridge v. Washington State Board, 357 U.S. 214, 2 L. Ed. 2d 1269, 78 S. Ct. 1061 (1958); Burns v. Ohio, 360 U.S. 252, 79 S. Ct. 1164, 3 L. Ed. 2d 1209 (1959); Douglas v. California, 372 U.S. 353, 83 S. Ct. 814, 9 L. Ed. 2d 811 (1963); Lane v. Brown, 372 U.S. 477, 83 S. Ct. 768, 9 L. Ed. 2d 892 (1963); Draper v. Washington, 372 U.S. 487, 83 S. Ct. 774, 9 L. Ed. 2d 899 (1963); Rinaldi v. Yeager, 384 U.S. 305, 86 S. Ct. 1497, 16 L. Ed. 2d 577 (1966); Anders v. California, 386 U.S. 738, 87 S. Ct. 1396, 18 L. Ed. 2d 493 (1967). Conclusion of a trial judge that there was no error in the proceedings is not permitted as a substitute for full appellate review. Eskridge v. Washington State Board, supra; Lane v. Brown, supra; Anders v. California, supra.

Writ of mandamus directing the Lee Circuit Court to conduct an evidentiary hearing for post-conviction relief sought by appellant’s petition filed December 18, 1967, pursuant to Criminal Procedure Buie 1(E) is granted. In such hearing, the circuit court shall, among other things, determine whether petitioner has, in effect, been denied the right of appeal, considering developments subsequent to December 18, 1967, as well as prior thereto. The transcript of the record filed here will be considered a part of the record in any further proceedings relating to petitioner’s conviction of the charges in the matter now before the court.

Writ granted.


author: J. Fred Jones, Justice.

text:
    H. A. Turner v. State of Arkansas
    5370
    432 S.W. 2d 757
    Opinion Delivered October 21, 1968

      Shaver, Tackett & Jones and Nicholas E. Patton for appellant.

      Joe Purcell, Atty. Gen. and Bon Langston, Asst. Atty. Gen. for appellee.
   J. Fred Jones, Justice.

The question presented on this appeal is whether the appellant, under post-conviction relief, is entitled to a new trial as a matter of law when he was sentenced to the penitentiary on a plea of guilty at preliminary hearing on arraignment and no stenographic record was made of the proceedings, resulting in the absence of a transcript of the record. The trial court answered the question in the negative and we sustain the trial court.

On February 1, 1965, the appellant, H. A. Turner, was charged by information with the crimes of burglary and grand larceny in Miller County, Arkansas. Upon arraignment in circuit court on February 8, 1965, he entered pleas of guilty and on March 19, 1965, he was sentenced to three years in the penitentiary with two of the three years suspended during good behavior. After the appellant was sentenced, but before he was transferred to the penitentiary, he escaped from the Miller County jail, and released other prisoners in the process. He was later apprehended in the state of Mississippi, brought back to Miller County and on March 23, 1965, he was charged with the rescue of a felon, which is a crime in Arkansas, and was also charged with burglary committed after his escape and before apprehension. When arraigned on these charges on March 26, 1965, the appellant again entered pleas of guilty, and the previously suspended sentence was revoked. Appellant was sentenced to three additional years on the rescue charge and two additional years on the additional burglary charge, the three sentences to run consecutively.

On October 30, 1967, appellant filed petition for habeas corpus alleging violation of his constitutional rights in connection with his first arrest, pleas of guilty and conviction. Appellant’s petition was treated as a petition for post-conviction relief under Criminal Procedure Rule No. 1 and he was granted a trial court hearing on January 3, 1968. Appellant was represented by court appointed counsel at this hearing and he testified in his own behalf.

The substance of appellant’s testimony was to the effect that he was arrested by a Miller County, Ai’kansas, police officer on the Texas side of Texarkana without a warrant and placed in the Miller County jail; that he was not mistreated or threatened in any manner, but that some two or three weeks after his arrest, and after he was interrogated eight or nine times, he signed a written confession to burglary and grand larceny in connection with breaking and entering the Elks Club in Texarkana, Arkansas.

On cross-examination appellant testified that he was not guilty of the Elks Club burglary but pleaded guilty because of the confessions he knew that two co-defendants had signed and one he had himself signed, and the further fact that the sheriff and the prosecuting attorney indicated that he would get less time under a sentence on a plea of guilty than if convicted on a plea of not guilty.

In this connection appellant testified in part as follows :

“Q. Why did you enter a plea of guilty at that time, Mr. Turner?
A. Because I had two statements signed against me, and I thought I was going to the penitentiary, and they told me I was going to get off lighter if I pled guilty.
Q. When you are talking about two statements signed against you, are you talking about your own statements, or the statements of other persons ?
A. Statements of other people that were involved in th'e alleged event.
Q. Did yon at any time sign a statement evidencing your guilt?
A. Yes, I did.
# ft #
Q. Who did the interrogating, Mr. Turner?
A. Yirgil Faulkinbury, the sheriff at the time, and Mr. O’Neal, was the ones that was questioning me.
Q. Did they ever at any time advise you. whether or not you had a right to an attornev?
A. Well, I have never yet been told that I had a right to an attorney.
Q. Were you told by Judge Brown at the hearings, or do you recall?
A. I don’t recall.
Q. Were you told when you went to Mr. Good-son’s office whether or not you had the right to an attorney, or whether or not you could remain silent?
A. He told me I could remain silent. He did not tell me I could have an attorney. ■
Q. All right, why did you give this statement, again?
A. Because they told me I might get off lighter if I give them a statement.
Q. Who told you this?
A. Well, the sheriff, and the deputy sheriffs, and the prosecuting attorney.
Q. All right, what happened after you were formally arraigned and entered pleas before Judge Brown?
A. Well, they locked me back up, and I went to court, I don’t remember the date I went to court, but they give me three years.
Q. Tou went back to court for sentencing?
A. I believe it was.
Q. At that time what was your sentence?
A. Three years, two suspended and one to do.
Q. All right, tell the court what subsequently occurred after that?
A. I broke out of jail, and I was caught in Mississippi, and they brought me back and charged me with another burglary, and give me three years on it. They revoked the suspended sentence and give me the full three years, and give me another three years, and give me two years for jail escape.
Q. For rescue of a felon?
A. Yes.”

The prosecuting attorney testified that he advised appellant of his constitutional rights, including right to counsel, before taking his written confession and that the trial court always advised every defendant of his constitutional rights, including right to court appointed counsel, before accepting a plea of guilty. The prosecuting attorney admitted that he very often made recommendations of clemency to the trial court upou pleas of guilty, but that in no case did he ever bargain with a defendant to trade his influence with the court for a plea of guilty and that he did not do so in this case.

In the cases of Orman v. Bishop, 243 Ark. 609, 420 S.W. 2d 908; Medley v. Stephens, Supt., 242 Ark. 215, 412 S.W. 2d 823, and Oldham v. State, 242 Ark. 479, 414 S.W. 2d 610, we clearly pointed out the desirability of having stenographic records made of proceedings on preliminary hearings and arraignments when pleas of guilty are to be accepted, but we have not gone so far as to hold that the absence of such record entitled a defendant to a new trial as a matter of law, and we refuse to do so now.

The absence of such record simply places a tremendous, and sometimes embarrassing, burden on the state, when it is forced to rely on the memory of court officials to rebut the evidence of a petitioner. The court official’s memory is sometimes clouded by many other routine cases that have intervened, whereas the petitioner, though immensely interested in the outcome, is under no such handicap. It should not be necessary for a trial judge to leave the bench and match memories with a prisoner as to facts and circumstances surrounding a sentence imposed by the judge a year or two years previously. There is no evidence that the right of a prisoner to a hearing on petition for post-conviction relief is not here to stay, so we assume that by now, the importance of a stenographic record is obvious to every trial judge in the state.

Now as to the case at bar, appellant’s confession, either written or oral, was not used against him. He entered his plea of guilty in open court. He says that he entered his plea of guilty because he and his co-defendants had signed written confessions and because he was promised a lighter sentence than he would likely receive if convicted on a plea of not guilty. The penalty for burglary in Arkansas is not less than two nor more than 21 years, and for grand larceny not less than one nor more than 21 years — so a sentence of three years with two years suspended was certainly no heavy penalty for burglary and grand larceny. The appellant testified that he knew he would have been released in four months.

The record made on arraignment, when the suspended sentence was revoked, lends credence to the prosecuting attorney’s testimony as to the procedure followed by the trial court. This record is as follows:

“BY THE COURT: How old are you?
BY DEFENDANT TURNER: Twenty-four.
THE COURT: Would you like to have the advice of counsel, or attorney, before you tell me whether you are guilty of this charge?
DEFENDANT TURNER: I am guilty, sir.
THE COURT: All right. I wanted to offer you the advice of an attorney if you so desired.
DEFENDANT TURNER: Yes, sir.”

From the overall record in this case, we are of the opinion that there was substantial evidence to support the trial court’s finding of fact that appellant’s constitutional rights had not been violated and that appellant’s petition should be denied.

The judgment of the trial court is affirmed.

Brown, J., disqualified.


author: Conley Byrd, Justice.

text:
    Juanita Thomas v. Raymond Dean, et al
    4626
    432 S.W. 2d 771
    Opinion Delivered October 21, 1968

      Sam Sexton, Jr., for appellant.

      McMath, Leatherman, Woods & Youngdahl for appellees.
   Conley Byrd, Justice.

The issue on this appeal is whether an action at law, as distinguished from an action in equity, may be brought against an unincorporated association or club pursuant to Ark. Stat. Ann. § 27-809 (1962 Repl.). That statute provides:

“Where the question is one of a common c general interest of many persons, or where the parties are numerous, and it is impracticable lo bring all before the court within a reasonable time, one or more may sue or defend for the benefit of all.”

Appellant Juanita Thomas brought this action for tort damages against Raymond Dean, Wilma Hill, Patsy Bowles, Pearl Taylor, Tressie Cook, Harlena Legg, Champ King, Ruth Perkins and Herbert Bingaman, individually, and as representatives of International Union, United Automobile, Aerospace and Agricultural Implement Workers of America (UAW-AFL-CIO) and Local 716. With respect to the union, she alleged that the members were too numerous to be sued individually and that the union should be brought in on a class action. She alleged that Herbert Bingaman, International Representative; Raymond Dean, President of Local 706; Wilma Hill, Secretary of Local 706; and Patsy Bowles, Pearl Taylor, Tressie Cook, Harlena Legg, Champ King and Ruth Perkins were members of the union and as such afforded adequate representation of the union as a class.

The defendants demurred upon the ground that there was a defect of parties defendant. After a non-suit was taken to the individual liability of the named defendants, the trial court sustained the demurrer as to the union and dismissed the complaint.

The right of an unincorporated association to sue or be sued in a class action has been before this court in Baskins v. United Mine Workers, 150 Ark. 398, 234 S.W. 464 (1921); District 21, United Mine Workers v. Bourland, 169 Ark. 796, 277 S.W. 546 (1925); Smith v. Arkansas Motor Freight Lines, 214 Ark. 553, 217 S.W. 2d 249 (1949); and in Massey v. Rogers, 232 Ark. 110 334 S.W. 2d 664 (1960).

In Baskins, suit was brought against a union in its society or organizational name for the alleged negligent killing of John Baskins. We there held only that such an action could not be maintained against a union in its societjr or organizational name. In so doing, we pointed out that Ark. Stat. § 27-809, supra, being ^ 33 of the Civil Code, was not applicable since no attempt had been made to comply with it.

In Bourland, we construed the action as one in tort for unliquidated damage over which chancery had no jurisdiction and held that the doctrine of virtual representation was unavailable as a method of obtaining service in a case in equity where there was no jurisdiction of the subject matter.

In Smith, the union, by its president and secretary on behalf of themselves and its other members, filed an action to compel specific performance of an agreement in which Arkansas Motor Freight Lines, Inc., had agreed not to retain non-union employees for more than 30 days. The trial court dismissed the union’s complaint on the basis that the president and secretary as representatives of a class lacked the capacity to sue. In reversing we said:

“We think the union officials could properly bring a representative action, without joining all members of the organization. Such a suit is auth orized when the parties are numerous and it is impractical to bring all before the court. Ark. Stats. (1947) § 27-809. While we have not passed upon this particular question, it is generally held that suits by or against unincorporated labor unions may be cast in representative form.”

The Rogers case was a suit by the trustee in bankruptcy for Leach-Bogers Funeral Home, Inc., against the Frank Leach Burial Association, an unincorporated association, for $3,225.00 alleged to be due to the funeral home. We reversed the trial court in dismissing the complaint and held that snch a cause of action could be maintained as a class action.

Appellant points to § 780 of- the Civil Code (Ark. Stat. Ann. § 27-102 [Eepl. 1962]), which provides that the Civil Code “shall regulate the procedure in all civil actions and proceedings in the courts of this state”, and argues that by the very terms of the code, the provision for class action is applicable to an unincorporated association both at law and in equity. Appellee argues that the doctrine of virtual representation is an equitable doctrine restricted to actions in chancery. We hold that the statutory provision for class action applies to both actions in equity and actions at law.

We are led to this conclusion by several reasons. In the first place, § 3 of the Civil Code, Ark. Stat. 27-204, provides that the proceedings in a civil action are of two kinds, i.e., at law and in equity. In addition, §§ 780 and 796 of the Civil Code, Ark. Stat. Ann. §§ 27-102 and 27-103 (Repl. 1962), provide that the Civil Code regulates the proceedings of “All civil actions” and proceedings in “all the courts in the State”. Therefore, as we read the Civil Code the same procedure for the bringing of parties before the court is applicable to both actions at law and in equity. In the next place, were the rule otherwise, an unincorporated association itself would be unable to sue to collect funds belonging to it or for the conversion of its property.

Other jurisdictions have readily applied the doctrine of virtual representation in suits for the collection of assets belonging to an unincorporated association. See Executive Committee v. Tarrant, 164 La. 83, 113 So. 774, 53 ALR 1233 (1927), and 6 Am. Jur. 2d, Associations and Clubs, § 55,

Appellees in contending that Ark. Stat. Ann. § 27-809 applies only in equity, have placed great stress upon the alleged non-entity status of a labor organization. In view of decisions of the United Supreme Court such as United Mine Workers v. Coronado Coal Co., 259 U.S. 344, 66 L. Ed. 975, 42 Sup. Ct. 570, 27 ALR 762 (1922) and recent legislation (Public Law 86-257, 29 USCA 401 through 531), requiring all labor organizations to file their constitutions and bylaws with the Secretary of Labor, we seriously doubt that a la,bor union can any longer be considered a non-entity. However, in construing our class action statute we have considered a labor organization as any other unincorporated association such as a congregational church or a historical society.

Of course, a class action as such does not impose personal liability on any individual member of the unincorporated association, but only reaches common assets, Massey v. Rogers, supra.

Reversed.

Harris, C.J. and Jones, J., dissent.


text:
    Jack Bland, et al v. Jerry Mahan
    4740
    432 S.W. 2d 827
    Opinion Delivered October 21, 1968

      Joe Purcell, Atty. Gen.; Don Langston, Asst. Atty. Gen. for appellants.

      Highsmith, Harkey & Walmsley for appellee.
   Conley Byrd, Justice.

The appellants, Conway County Clerk Jack Bland, Attorney General Joe Purcell and Ruth Clements, J. C. Stroud and J. C. Oliger, the Conway County Board of of Election Commissioners, appeal from a judgment declaring Ark. Stat. Ann. § 3-841 (Supp. 1967) (Acts 1965, No. 68, § 1), invalid and directing’ the return of $800 paid under protest by appellee Jerry Mahan, an independent candidate for Sheriff in the 1966 general election. The sole issue is the constitutional validity of § 3-841, supra.

The record shows that the Conway County Republican Party fixed its primary ballot fee for the office of County Sheriff at $500, and that the Conway County Democratic Party fixed its fee for the Sheriff’s office at $800. Ark. Stat. Ann. § 3-205 (Supp. 1967), recognizes that a person seeking to qualify as a candidate for party nomination must “pay such ballot fees as may he required by said party.”

Under Arkansas law a person may qualify as a candidate for public office in any one of three ways:

1. As the nominee of a political party holding a primary election;
2. As an independent candidate by the filing of petitions signed by 15% of the total number voting for Governor at the preceding general election; and
3. As a write-in candidate by giving written notice to the County Board of Election Commissioners 30 days prior to the election.

A candidate qualifying as a party nominee, in addition to presenting Ms certificate of nomination, must pay a fee of three dollars required by Ark. Stat. Ann. § 3-261 (Supp. 1967). An independent candidate, in addition to filing his petitions, must also pay the three dollar fee and comply with § 3-841, supra, the validity of which is here in question. No fees are required of write-in candidates.

The record shows that appellee first qualified as a Republican candidate for Sheriff, but withdrew and qualified as an independent candidate. Although he was defeated in the 1966 general election, we still have the issue of the validity of the statute before us because of the $800 paid under protest to the County General Fund.

Section 3-841, supra, here in question provides:
“Hereafter, any person who shall file as an independent candidate, as authorized by Act No. 352 of 1955 (Arle. Stats. (1947) Sec. 3-836 through 3-840), for election as United States Senator or Congressman, or for any state, district, or county office in this State shall pay a filing fee in the same amount charged by the appropriate officals of the political party in this State charging the greatest filing fee for nomination for such office at the primary election of such political party preceding the general election at which such person is a candidate. Such filing fee shall be paid by such independent candidate at the time of filing petitions required by said Act 352 of 1955, but in no event later than sixty (60) days preceding the date of the general election at which such person is to be a candidate. Such fees shall be credited to the county general fund.”

In Crowly v. Thornbrough, Comm’r of Labor, 226 Ark. 768, 294 S.W. 2d 62 (1956), we had before us an act delegating to the Secretary of Labor of the United States the right to fix the minimum wage scale on public construction contracts to which the State was a party. In holding that act invalid, we said:

‘ ‘ The Act fails to -establish a standard or formula by which a wage scale may be formulated; but rather delegates to the Secretary of Labor of the United States the right to fix the minimum wage scale to be paid in a particular area of this State. The State retains no control over the Secretary of Labor of the United States, therefore, the Act violates Article 4, Sections 1, 2 and Amendment 7 to our State Constitution. Numerous decisions from other states have held similar legislation to be unconstitutional delegation of legislative authority to an agency of the United States Government.”

Here, too, § 3-841, S'uq>ra, fails to establish a standard or formula by which the fees for independent candidates are to be fixed. Therefore, we hold that the statute is invalid because it is an unconstitutional delegation of the legislative authority.

Affirmed.


author: Carleton Harris, Justice.

text:
    B. Bryan Larey, Commissioner of Revenues, State of Arkansas v. O. C. Morris
    4663
    432 S.W. 2d 861
    Opinion Delivered October 28, 1968

      Lyle Williams, John F. Gawtney and Hugh L. Bronm for appellant.

      Lems & Schulse for appellee.
   Carleton Harris, Justice.

A motor vehicle accident, involving O. C. Morris, appellee herein, and James Stewart, occurred near Cabot on November 19, 1965. Ten days later, pursuant to the provisions of the Arkansas Financial Responsibility Law (Act 347 of 1953), Morris filed an accident report with the Commissioner of Revenues, the report reflecting' that he and his vehicle, which he was driving at the time of the accident, were covered by liability insurance with the Republic Casualty Company of Little Rock. On February 4, 1966, Stewart filed similar proof of financial responsibility, and tbe commissioner closed bis file on tbe accident. On February 27, 1967, a judgment was entered against Morris in favor of Stewart in tbe Circuit Court of Lonoke County, and in tbe amount of $7,045.00. Appellee failed to pay tbe judgment, and Stewart’s attorney discovered that Morris’ insurance carrier, Republic Casualty Company, was in receivership; accordingly, it was no longer financially able to pay the judgment. On August 16, 1967, in compliance with tlie provisions of Ark. Stat. Ann. § 75-1450 (Repl. 1957) Stewart filed a certified copy of tbe unsatisfied judgment and certificate of fact with tbe commissioner. Thereupon, tbe commissioner, under tbe provisions of Section 75-1452 suspended tbe license and registration of Morris. Appellee appealed to tbe Pulaski County Circuit Court (under tbe authority of Section 75-1416), and that court reversed tbe order of tbe commissioner and reinstated Morris’ license and registration. From tbe judgment so entered, tbe Department of Revenues brings this appeal.

Appellant relies upon Section 75-1455, which provides :

“No license, registration, or nonresident’s operating privilege of any person shall be suspended under tbe provisions of this article [§§ 75-1443 — 75-1477] if the department shall find that an insurer was obligated to pay the judgment upon lohich suspension is based, at least to the extent and for the amormts required in this act [§§ 75-1401— 75-1493], but has not paid such judgment for any reason. A finding by the department that an insurer is obligated to pay a judgment shall not be binding upon such insurer and shall have no legal effect ivhatever except for the purpose of administering this section. Whenever in any judicial proceedings it shall he determined by any final judgment, decree or order that an insurer is not obligated to pay any such judgment, the department, notwithstanding any contrary finding theretofore made by it shall forthwith suspend the license and registration and any nonresident’s operating privilege of any person against whom such judgment was rendered, as provided in Section 52 [$ 75-1452].”

In the case before us, the commissioner upon being' advised that the judgment was unsatisfied, made a finding that the insurer was not obligated to pay the judgment. It will be noted that this particular language is not contained in the preceding section, but appellant states that, if it is authorized to find that an insurer was obligated to pay the judgment, it certainly had the authority to find that the insurer was not obligated to pay same.

There is no point in discussing the authority of the commissioner to make the rulings provided for in the section, nor to go into the question of the procedure, or quantum of proof necessary to overturn a ruling by the commissioner, since we think it is obvious that error was made in the commissioner’s ruling at the outset.

The record reflects that Morris purchased the insurance from Republic on October 3, 1965; that this policy was in force at the time of Ihe accident which occurred on November 19, 1.965; further, it also appears that it was in force (by renewal) at the time the judgment was rendered against him on February 27,1967. Morris receivecl notice from the Insurance Commissioner that Republic Casualty Company had been placed in receivership. As far as the record shows, the litigation against Republic is still pending, hut, at any rate, Stewart’s judgment was apparently obtained before Republic was declared insolvent. We know of no Arkansas court decision, nor until 1959, any Arkansas statute, which holds or provides that, when an insurance company has gone into receivership, it is no longer liable for previous judgments rendered against its policyholders. Of course, a judgment creditor probably would bo able to collect only a small portion of the amount due him under a judgment — but this fact has nothing to do with the company’s actual liability. However, in 1959, the General Assembly enacted the Arkansas Insurance Code. A part of that code, Ark. Stat. Ann. § 66-4829 (Repl. 1966), deals with the allowance of claims against delinquent insurance companies. Subsection (1) deals with contingent and unliquidated claims. Sub-section (2) deals with the rights of a person who has a cause of action against an insured, the insurer having been adjudicated insolvent, and Subsection (3), pertinent hereto, reads as follows:

“No judgment against such an insured taken after the date of entry of the liquidation order shall he considered in the liquidation proceedings as evidence of liability, or of the amount of damages, and no judgment against an insured taken by default, or by collusion prior to the entry of the liquidation order shall be considered as conclusive evidence in the liquidation proceedings, either of the liability of such insured to such person upon such cause of action or of the amount of damages to which such ■person is therein entitled '”.

Tlie italicized portion is here pertinent, Stewart’s judgment having been rendered prior to the delinquency proceeding against Republic, the judgment, however, being obtained by default.

We think the language in Section 75-1455, “obligated to pay a judgment,’’ or under appellant’s reasoning, “not obligated to pay a judgment,’’ means legally obligated. Except for Section 66-4829, this would be definite, but even under that section, as of now, the judgment stands — -and will continue to stand until the receiver holds that Morris was not liable to Stewart, or Stewart was not entitled to the amount of damages awarded. Of course, the receiver’s findings are subject to review by the Circuit Court.

The department argues that an adverse ruling to its position will seriously hinder effective enforcement of the act. From its brief:

“The suspension of the judgment debtor’s license and registration for nonpayment of the judgment is a powerful lever to aid in collection of the judgment, at least to the limits provided for under the financial responsibility law. To deprive a person of his privilege to operate or register a motor vehicle is to place him under severe financial and personal handicaps. Assets may be converted into liquid form and concealed from execution, but if the defendant is placed afoot for life or until he satisfies the judgment sooner or later he will do so if at all possible.
Therefore, the Department is the last resort of any plaintiff whose unsatisfied judgment has arisen from a motor vehicle accident. If the Department indulges in the legal fiction that the insurance company is obligated to pay this judgment, then in effect, the Department has denied any recovery to the plaintiff. He, the plaintiff, will then have suffered a wrong without a remedy.”

It is asserted that when the insurance company becomes insolvent, as in the case at hand, the commissioner should find that the insurer was not obligated to pay the judgment, thus requiring the judgment debtor himself to pay or suffer the suspension of license and registration.

We agree that to deprive a person of his privilege to operate or register his motor vehicle is to place him under a severe handicap, but under the circumstances herein, the judgment debtor, like the plaintiff, will also have suffered a wrong without a remedy. Here, appellee purchased liability insurance, and thought that he was fully covered. There was no reason for him to think otherwise, for at the time he purchased it- — and at the time of the accident — and even at the time of the judgment rendered against him, Republic Casualty Company was authorized by the State Insurance Department to do business in this state. The Revenue Commissioner himself accepted appellee’s proof of financial responsibility when he reported, ten days after the accident, that he was covered by liability insurance with Republic. What did Morris do — or fail to do— that justifies the loss of his license? The average citizen does not demand a financial sheet from an insurance company before he purchases a policy. The most that could have been done would have been for Morris to make inquiry from the State Insurance Department —and, if this had been done, he would evidently have learned nothing that would have put him on guard against purchasing a policy, since the company was authorized at that time to do business.

Of course, Stewart cau still collect Ms judgment against Morris if the latter has sufficient property, or sufficient income beyond exemption, upon which to levy an execution. No protection has been afforded appellee in this respect. He has simply been restored the privilege of operating his veMcle, a dump truck used by appellee in earning his livelihood.

Affirmed.

      Then sued, Morris, according to the appeal filed with the Circuit Court, notified Republic of the suit, and was advised that the matter would be taken care of. An answer was filed by Little Rock attorneys at the instance of the company. Apparently, the attorneys withdrew from the case, and Morris set out that he was never notified of the date of trial. A default judgment was rendered.

      This company was apparently placed in receivership after proceedings were instituted in the Circuit Court of Pulaski County against it by the State Insurance Commissioner.

      Emphasis supplied.

      An exact quote of the notice is set out in appellee’s brief, as follows: “As of March 13, 1967, your insurance policy with the Republic Casualty Company is without benefit to you regarding law suits or claims occurring after the date of receivership.” Oral testimony of Morris was taken in the present litigation before the Circuit Court, but was not reported, and. this notice was; apparently introduced at that time.

      Emphasis supplied.

      Let it be remembered that this is not a bankruptcy proceeding in the Federal Court. However, it might be pointed out here that, under Section 75-1457, a discharge in bankruptcy following the rendering of a judgment does not relieve the judgment debtor from any requirements fround in Sections 75-1443 — 75-1477.


author: Carleton Harris, Chief Justice. J. Fred Jones, Justice.

text:
    Arkansas Power and Light Co. v. Lewis Cash, et al
    4629
    432 S.W. 2d 853
    Opinion Delivered October 28, 1968

      Joe W. McCoy and House, Holmes & Jewell by Robert M. McHenry Jr., and Philip K. Lyon for appellant.

      James C. Cole for appellees.
   Carleton Harris, Chief Justice.

Arkansas Power & Light Company, appellant herein, brings this appeal from a judgment entered in the Hot Spring County Circuit Court in favor of numerous landowners who successfully contended that their lands had been damaged by the negligence of appellant company in its operation of Remmel and Carpenter Dams. The judgments totaled $18,541.07. Three points are urged for reversal, including alleged erroneous instructions, but under the view that we take, it is only necessary that we discuss the first point, vis., that the trial court should have directed a verdict in favor of the company.

On the morning of June 16, 1963, between the hours of 2:00 and 3:00 A.M., it began to rain in the area of Carpenter and Remmel Dams and continued until approximately 12:00 noon on the same date. Total rainfall at Remmel Dam (which formed Lake Catherine) during this period was 6.14 inches, and the total rainfall at Carpenter Dam (forming Lake Hamilton) during this same period was 4.56 inches. The maximum elevation at which water may be contained in Lake Catherine is 305 feet, and the maximum in Lake Hamilton is 400 feet. Both dams contain flood gates for the purpose of channelizing the water.

Appellees, in their complaint, alleged that appellant on July 16, 1963, carelessly and negligently raised flood gates under its control, and permitted excessive water to flow into the Ouachita River below Remmel Dam, causing such water under its control to overflow lands on which the appellees had crops, destroying and damaging such crops. It was specifically asserted that appellant failed to obtain weather reports from the United States Bureau showing rainfall predictions, and that such failure amounted to negligence. Their main contention was set out in their answer to the company’s Interrogatory No. 4, wherein the question was propounded relative to how the Power and Light Company held back water and prevented it from flowing naturally down the Ouachita River. The answer to this interrogatory states:

“It had water stored held back by its dams prior to any Act of God causing an unusual inflow. After discovering and recording the rise coming on its lakes, including the rate of rise, it delayed opening of gates to let the water flow down the river naturally and then after seeing that it was getting more water than could be handily handled, it opened its gates and turned water down the Ouachita River in a larger volume than would have gone down the river naturally. After releasing sufficient volumes of water to cause a flood on the lands below the dam. it continued to release larger volumes of water than were naturally flowing into its lakes, lowering the water level of its lakes while so doing and thus held flood waters on crops of the plaintiffs a longer period of time than the water would have remained thereon by natural flow.”

The lands of the appellees are located in the Ouachita River bottom area below Rockport, near Malvern, and are downstream from both Remmel Dam, and Carpenter Dam, which is about 11 miles farther away. Elevation maps reveal that there is a 95-foot drop from Carpenter to Remmel Dam and a 47-foot drop from Remmel to Rockport. There is a further drop from Rockport Bridge to Morrison Island where most of the appellees were farming) of 39 feet, making a total drop in elevation from Carpenter Dam to Morrison Island of 181 feet. It is thus apparent that the lands of appellees are very low.

One of the principal witnesses for appellees was Lewis Cash, who lives in the Midway community, and has farmed in the Ouachita River bottoms for many years. Cash has observed various floods in the vicinity throughout the years, and the witness testified that the flood in question was different from the others in that the water remained on the lands longer than usual. “Normally when it crests, it peaks, and within 3 or 4 hours it goes to falling pretty fast. This time it hung on when the main part of the water left there.” Cash said that his land remained under water for 40 or 45 hours. The witness stated that when flood waters run off quickly without the property being subjected to a hot sun, there is but little effect on the crops; however, if the water stays on for a long period of time under hot sunshine, the crops will sour. Cash said that the 17th of June was a “real hot day,” and that the water was still over the crops at that time. This appellee testified that 10 or 12 hours of hot sun would ruin the crops, but that water staying on overnight probably would have no adverse effect. “I don’t think it would just staying-on it overnight, a short period of time, if it was cool.” He “couldn’t say definitely” what time period alone (for the water to remain on the crop) would kill the corn.

Doyle Cook, a farmer in the area, received the report of a flood about 8:00 A.M., and he testified that he forthwith checked various creeks and streams, some running into the Ouachita River below the dam at Lake Catherine, and some of the streams running into the lake above the dam. According to the witness, most of the creeks and streams were “normal,” and others indicated that they might have been a little out of their banks (because of debris that was observed), but the witness found no creek or stream out of its banks. This included Tigre Creek and G-ulpha Creek, and this evidence is rather strange in light of the testimony of other witnesses which will subsequently be quoted. As to Tigre Creek, Cook stated that it had been up some, but was down when he crossed it around 10:30 or 11:00 A.M.; there was no debris in the road or highway at Grulpha Creek. Cook even stated that there were places where it appeared there had been no rain at all (Cooper Creek, which empties into Lake Catherine), and there were other creeks where the rain did not “amount to anything.” Some of this testimony is confusing, but the purport of his evidence was that the water, about which the appellees complained, came from Remmel Dam.

E. C. Stewart, presently retired, but at the time of the flood, Systems Operator for the Middle South System, and whose office was in Pine Bluff, was called by both appellees and appellant. Mr. Stewart had control over opening the gates, including the determination of which gates would be opened, at both Remmel and Carpenter Dams. The witness said that the drainage area between Blakely Dam and Carpenter Dam was 300 square miles; from Carpenter to Remmel was 120 square miles; in other words, all the water in this area flowed into Lakes Hamilton or Catherine. He testified that on a normal day, his office would be in touch with personnel at the dams not less than once an hour, but that when something unusual happened, communications were increased. Flood records for July 16 were introduced, and these reflected the following facts:

When the water level in Catherine exceeded the 305-foot elevation, employees of the company began opening the gates, the first opening being 4 feet, and occurring at 6:08 A.M. At 8:47 A.M., the same action occurred at Lake Hamilton. Subsequently, the gates at Remmel were opened to 10 feet.

The evidence offered was voluminous, but a summary reflects that at Remmel Reservoir for the 24-hour period from 12:01 A.M. to 12:00 midnight on July 16, 48,934 acre feet came into the reservoir, and 45,085 acre feet were discharged. On July 17, 11,325 acre feet flowed into Remmel, and 14,792 acre feet were discharged. In other words, during this 48-hour period of July 16 and 17, the total inflow was 60,259 acre feet, and the total discharge was 59,877 acre feet; i.e., approximately 400 acre feet more came into Lake Catherine than went ont. On July 16, 28,116 acre feet flowed into Lake Hamilton and 18,490 acre feet flowed out. Prom midnight until noon on the 16th, more water flowed into Hamilton than was discharged at the dam, but from noon on more water was discharged than came into the lake. There were no figures on the intake and discharge at Hamilton on the 17th. A flood record sheet for Carpenter Dam on the 17th was not kept because it was considered that the flood was over.

Appellees contend that the power company, although it had the capacity to do so, did not maintain the smoothest possible flow of water; that though appellant at Bemmel Dam had the gate capacity to let out all water coming in, as it came in, the company failed to do this, but instead, held the water, discharging it hours later. It is asserted that appellant should know that:

“* * * unnecessarily discharging water into the main channel of the Ouachita Biver at a time flood water was out over the crops would hold the crops under water a longer period of time and thereby destroy them, when if the water had come on through naturally, even if it peaked at a higher point, would have cleared from the crops much sooner than it did in this case.”

Unquestionably, the rainfall at the sites of the dams, and the general surrounding area, was unusually heavy, conditions being described by some witnesses as being the worst that they had seen.

G-len Teeter, a vocational teacher and resident of Magnet Cove, testified that when he awakened around 6:00 A.M. on the morning of July 16, it had rained to the point that Stoney Creek, which flows through his field and empties into Ouachita Biver about 4 miles below Bemmel Dam, was up enough that the creek ran knee deep through a neighbor’s house which was just across a road adjoining the creek; he also determined the amount of rain by checking a 5-gallon bucket that he had emptied the night before and left in the back yard. Teeter stated that the bucket had straight sides and was 12 inches deep, and that on the morning of the 16th it was full. He said that it did not rain prior to his going to bed on the night of the 15th which was 9:00 or 10:00 P.M. The weather record at Malvern shows rainfall of 5.20 inches on the 16th.

Barney Roark testified that there had been a big flood on G-ulpha Creek (which empties into the upper end of Lake Catherine) on the morning of the 16th, and that the water flowed over the bridge on Highway 270, and washed away the Rock Island Railroad tracks for % of a mile; big gum trees were “snapping” as though they were toothpicks. Roark owns a building approximately 40 yards from the creek, with a 7-foot ramp built around it, and the water reached 24% inches in this building. The witness also lost other property in the flood, including a trailer parked on his property: “It was a big show trailer and well equipped, and I had a new, brand new Evinrude motor in there, and I haven’t found one part of it yet.” This occurred around 7:00 A.M.

Yal Hall, Superintendent of the Municipal Water System at Hot Springs, testified that he was called to the plant about 8:00 A.M. on the 16th because there were indications that the dam used for the Hot Springs water supply (Lake Dillon) might wash out. The water was running over the dam about 5 feet deep:

“Well, on the way out I had a little trouble getting through town. Town was flooded down Central Avenue. As soon as I got out to the plant, the -engineer wanted me to come out there. I don’t know what I could have done if it had washed out. But anyway, water was in the end of the pump-house. We never experienced anything like it on that watershed, not since we have been there. When I got out there, water was everywhere and I asked how much rain we had since midnight. We always read the gauge at midnight. We went out to the rain gauge and checked the rain gauge and had 9.98 rain since the meter was read at midnight. It was about 9:30 or ten o’clock a.m. when I read the meter. ’ ’

The witness stated that the next day he went down to the basin known as Bull Bayou, which empties into Lake Hamilton, to see what damage had been done.

* * But in going down to the basin, it looked like a dozer had gone in down there. Trees were washed up. I never seen trees with bark peeled on them before, or since. It had washed up trees, washed bark off. It was really a fierce deal down in that basin. * * *
“On Grulpha Creek we had ten inch cast iron pipelines across Grulpha Creek and it washed three lengths out of it. One length we found about six months later, on down stream where it lodged on a little dam on Grulpha Creek. Part we never did find. But, there was three lengths that washed out. ’ ’

These lengths were of 10-inch inside diameter, 18 feet long, and weighed 1150 pounds each. Mr. Hall testified that a daily log of rainfall was kept at the pump station; that the record reflected no rain at all on July 15, but on July 16 there was recorded 9.98 inches.

Ernest Echols testified that in 1963 he lived above Remmel Dam near Wilson Mineral Springs Creek (also known as Potash Sulphur Creek), which empties into Lake Catherine. Echols testified that he had a boat landing at the point where this creek runs into the lake, and that this boat dock was severely damaged by the flood:

“Well, when I got home from work right after seven o’clock that morning, during the flood, when I drove into my landing, I seen the boats was all washed away and the boat dock, big dock, had washed out and my gasoline pump washed away.”

This occurred about 7:30 A.M. on the 16th, and Mr. Echols also testified that on his way home he crossed Tigre Creek, which also empties into Lake Catherine, and that this creek was the highest that he had ever seen it — “way out of banks.”

“The Pierson house sets on the right just before you get to the bridge. Water was running in the windows of the house, and a car setting out in the yard, water was running in the glass on the door of the car. That’s how high it was.”
As to the force of the water, the witness said:
“Coming down, well, it was real high and a lot of force and the water coming in that G-ulpha Creek, coming in at my landing, comes under the railroad trussle, this big bridge, they have a trussle, it was round about twenty foot of water was coming through that and hitting the lake water in such force, it was like a water spout or a nozzle, bouncing as high as this ceiling, washing my boats and bouncing through there. Water was bounding fifteen feet or higher from the creek.”

Echols said the water was up all day; that he had lived in the area for 22 years, and had never seen Gulpha or Potash Creeks up to the extent that existed on this occasion.

Don McGrew, who operated a store and court near Glazypeau Creek (which empties into Lake Hamilton) was called to testify, and counsel for appellees stated:

“We will agree there came the biggest rain he had ever seen since he had been living up there and the biggest flood on Glazypeau since he had been there and it washed his cabins off and he hasn’t seen them since and also the water went down into Lake Hamilton.”
When asked where he was during the flood, McGrew replied:
“Part of the time on top of them [cabins] trying to help a man get out.
“It was washing a big long trailer away on the east end of the cabin and a fellow was there that couldn’t swim out and I was helping him. We decided we better get him on top.”

The witness stated that the water rose to approximately 6 feet inside the cabins which are about 75 yards from Glazypeau Creek. This occurred about 8:00 A.M., and McGrew said that it rose about 10 feet from daylight until that hour.

County Judge Lon Warneke testified that the heaviest rains in Garland County were from the Mountain Pine area, east, and between the town and the mountain range just north of Hot Springs, and that all this water emptied into either Lake Hamilton or Lake Catherine. It was the heaviest rain, and more damage was suffered, than at any time since Warneke had been County Judge.

It appears that it would be extremely difficult to find in the record sufficient evidence to make a jury question on the issue of negligence. In Ark Power and Light Company v. Beauchamp, 184 Ark. 698, 43 S.W. 2d 234, also a case involving Carpenter and Remmel Dams, the court commented that employees at Remmel Dam had means by which they could communicate with the weather bureau, and thus obtain information concerning rainfall and the volume of water likely to come down Ouachita River, but that this precaution was not taken. In the present case, there was an effort to obtain information from the United States Weather Bureau at Little Rock, but this agency had no information relative to rainfall in the Hot Springs area (which it had not predicted) and, in fact, the weather bureau asked the company for information. Appellees state that there is no evidence that company employees endeavored to utilize the services of television, radio or otherwise obtain other weather information — but there is no indication of what would have been shown or disclosed by such information. Apparently, the rainstorm was of a very sudden nature, taking .everyone by surprise. The company was confronted with an emergency. Who can say that, if the water from the creeks and streams, described in the testimony heretofore set out, had been permitted to go immediately through the dams, that an even greater flood might not have resulted?

In Beauchamp, the court said that the circumstances warranted the inference that the water came from Lake Catherine, and that the flood gates had been opened negligently, thus precipitating within a few hours the water which had been flowing naturally, and more slowly, downstream. We held that the jury was justified in concluding that the company had opened the flood gates more than necessary, and to such an extent that the flood resulted. Here, actually, the contention of appellees is in reverse, for they state that, if the company had permitted the water, occasioned by the terrific rainfall, to flow unimpeded, the water would have moved much faster, and though perhaps reaching a higher crest, would still have flowed off more quickly. Mr. Stewart, who had long years of experience in operating dams, and Colonel Charles Maynard, who has spent 24 years with the Army Engineers (the latter conceded by appellees to be an expert on flood control and the movement of water), testified emphatically that the manner in which the gates were operated under the circumstances of July 16, was entirely proper. Colonel Maynard stated that the water removal from the dams was consistent with the best principles. It was his view that the lands belonging to appellees received less damage than would have been done had the two dams not been in existence.

There really is no necessity in discussing at length the question of negligence, for even though it should be established that appellant’s employees were negligent, there is another factor which is of equal or greater importance, vis., whether the negligence of the Power and Light employees was the proximate cause of the damages suffered by appellees.

As to this phase of the litigation, appellees’ claim for damages is wholly predicated on the theory that the company, by holding the flood waters for several hours and then letting the water out in the amount heretofore set out, caused water to remain on the lands for a longer period of time, permitting the crops to be exposed to long hours of hot sun, and thus causing them to sour and ruin.

Lewis Cash testified that his corn was under water for 40 to 45 hours (entirely over the stalks of a lot of the crop), and that 10 or 12 hours of hot sun would ruin the crop. Cash testified that a few years back, the water came over his corn one evening, and went off the next morning, but he made a “fair” crop.

Bill Cook testified that he could not say exactly how long it would take for water to kill a crop, because of the fact that temperature would have a lot to do with it. The witness said that it was hot on July 16, and that he would estimate that it would take about 45 hours to ruin the crop. This estimate was apparently based on the fact that the water was on his crop for that period of time, but he had no idea whether water, standing for a lesser period would likewise have ruined the crop. This answer was given relative to his corn crop, but he said that the same answer would apply to soy beans and hay. The basis of the opinion of the witness was the fact that he had been flooded before, but the water had not remained on his land for that long a period of time.

Doyle Cook stated that the water was off the bulk of the crops by the night of the 17th.

C. C. Bozeman testified that his corn, which was in the tasseling stage, was entirely covered by the water, but he was unable to say how long water would have to stay on corn before it would be damaged.

Glen Teeter testified that corn begins to be damaged after water stays on it for 5 or 6 hours, and that in 10 or 12 hours the crop would probably be destroyed. He was of the opinion that a soy bean crop would be destroyed within 10 hours.

It will be observed that the witnesses pretty well agreed that the flood waters remained on the crops from 40 to 45 hours. However, the testimony reflects that if the lands were under water for a much lesser period (10 to 12 hours under hot sun, according to Cash; 10 or 12 hours under water, according to Teeter), the crops would be totally destroyed anyway. In other words, even though appellant’s operation of its dams caused the water to remain on the crops for a considerably longer period, the company would not be liable if the water would have remained on the lands long enough to ruin the crops, had it been permitted to flow unimpeded through the dams. Thus, the 40 to 45 hour period would appear to be immaterial, for the maximum damage had been reached many hours previously. The question therefore is, “Did the manner by which appellant company released water from the dams cause the crops to remain under water for the first 15 or 20 hours after being flooded?” Here, we come upon a blank wall — for there is no evidence that this was true. Prior experiences of the witnesses have but little evidentiary value for the reason that it seems established that previous floods did not compare with this flood in magnitude.

Stewart testified that this was the heaviest and most sudden downpour of rain that had been experienced since the dams had been constructed, and the rise was much sharper than prior rises.

Appellant presented a graph prepared by Stewart, the purpose of which was to show that the flood would have been greater, i.e., much more water would have gone below Remmel Dam if the Ouachita River had flowed uninterrupted. According to the witness, the presence of the dams prevented the flood from reaching the peak that would have occurred had the dams not been present.

From the record:
“Q. In regard to the rate of flow that yon have talked about on this chart, will you state whether or not — Let me ask you this: What was the measurement in acre feet per hour that would have gone down had there been no dam at that particular point as shown on your chart, Exhibit No. 26?
A. The highest point is 8,653 acre feet per hour.
Q. What is the feet, the discharge as it actually occurred?
A. That occurred at 10 A.M. and was 4,655.”
Further:
Q. What was the time interval from the time, beginning of the flood in the Ouachita at that point without any dam, the red line, ’til it got below flood stage at that point?
A. It was eighteen hours.
Q. What was the time intermal from the time, with the two dams, it got in the flood stage to the time it got out of flood stage?
A. * * * Eighteen on the red line without the dams and twenty-one on the blue with the dams.”

At any rate, for appellees to establish their contention that appellant was responsible for the loss of the crops, it must be shown that the water would not have remained on the lands long enough to occasion the damage except for the actions of appellant. Such a conclusion can only be reached through speculation, for there is absolutely no evidence that this happened — nor is there any evidence that would tend to support this as a reasonable conclusion. In Kapp v. Sullivan Chevrolet Company, 234 Ark. 395, 353 S.W. 2d 5, we said:

“* * * Appellants’ entire case rests upon conjecture and speculation. Several possible causes of the break are argued, but in truth, there are only possibilities, and do not reach the status of probabilities.”

In that same case, quoting from Henry H. Cross Company v. Simmons, 96 F. 2d 482 (a decision under Arkansas law), we said:

“ ‘To submit to a jury a choice of possibilities is but to permit the jury to conjecture or guess, and where the evidence presents no more than such choice it is not substantial, and where proven facts give equal support to each of two inconsistent inferences, neither of them can be said to be established by substantial evidence and judgment must go against the party upon whom rests the burden of sustaining one of the inferences as against the other.’ ”

Here, it is not sufficient to show that the crop damage could have been caused by the manner in which the water was released from the dams. Proximate causation must go far beyond guesswork. Who can say that the damage would not have occurred if the water had been permitted to flow unhampered and unhindered? Unquestionably, more water would have descended upon appellees, and logic dictates that the larger the body of water, the longer it would take it to run off. Who can say — or who did say — that, except for the manner of operation of appellant’s dams, the water would only have stayed a few hours? To this most pertinent question there is a total absence of substantial evidence. That being true, appellees must fail.

Reversed.

Jones and Byrd, JJ., dissent.

J. Fred Jones, Justice.

I am of the opinion that the appellees made out a jury question in this case even though the negligence and causal relationship border on the speculative.

It appears that there is little question that appellees suffered damage to their crops because of high water. The alleged damage was not based on the volume of water covering the crops; the alleged damage was based on the length of time the water remained on the crops.

Piad there been no dams maintained by the appellant on the Ouachita River, the appellees would have been confronted with a situation commonly referred to on the Ouachita River as a “head rise.” In the normal flow under such conditions as is evidenced by this case, the water would have flowed down the Ouachita River basin in one tremendous volume, receding as fast as it rose, carrying away obstructions and leaving debris in its wake, as occurred on Grulpha Creek and in the Bull Bayou basin under the testimony in this case.

So it appears to me, that the appellant was confronted with two alternatives; it could release the water from its reservoir in the same volume and over the same period in which it fell, thereby permitting a higher, faster and possibly more devastating flood below Remmel Dam on the Ouachita River; or it could release less water than fell in the first twenty-four hours and more water than fell in the second twenty-four hours, thus regulating and controlling the height of the flood below the dam but maintaining it over a longer period of time.

I recognize the speculative nature of what the damage might have been had the appellant released the flood waters in the same volume and over the same period they were impounded, but it is my opinion that all of this was presented to the jury under proper instructions so I would affirm the judgment rendered on the verdict.

I am authorized to state that Byrd, J., joins in this dissent.

      Mr. Stewart explained in detail the calculations on the chart, and how they were arrived at. He stated that he had a gauge on the Ouachita River before the dams were ever built which enabled him to determine how long it took for water to flow down the stream naturally to> Remmel Dam.


author: George Rose Smith, Justice.

text:
    Peggy Jo Williams v. Herbert Williams
    5-4704
    432 S.W. 2d 830
    Opinion Delivered October 28, 1968

      Little, Enfield & Lawrence for appellant.

      Jeff Duty for appellee.
   George Rose Smith, Justice.

This appeal is from a decree granting' a divorce to the appellant on the ground of three years separation, awarding her the custody of the parties’ three children, increasing a prior support allowance from $70 to $100 a month, reducing the husband’s previous delinquent payments to judgment, dissolving the tenancy by the entirety that formerly existed as to the family homestead, and directing that the homestead be sold and the proceeds be divided between the parties.

The appellant makes two contentions for reversal. First, she argues that the monthly support allowance should have been increased to $150 instead of to $100. This argument is based upon the appellee’s testimony that it takes at least $150 a month to provide support for the children. That, however, is not the sole pertinent consideration. The husband’s ability to pay must also be taken into account. Williams testified without contradiction that he earns only $56.01 a week and that his own living expenses exceed that amount. The decree requires him to pay $100 a month for the children’s support and to carry hospitalization coverage for their benefit, which costs $12.55 a month. We are unable to say that the chancellor’s decision is against the weight of the evidence. His division of the available income appears to be as fair as the circumstances permit.

Secondly, the appellant contends that her money judgment for delinquent support payments should have been declared to be a lien upon the appellee’s share of the proceeds to be derived from the sale of the homestead. The court was right in rejecting that contention. The constitution is specific in declaring that the homestead shall not be subject to the lien of any judgment or decree, with certain exceptions that do not apply here. Ark. Const., Art. 9, § 3. In Massengale v. Massengale, 186 Ark. 917, 56 SW. 2d 763 (1933), we held that a judgment for accrued alimony “was of no more force than any other judgment, and had no more validity against the homestead than any other judgment.” The principle of that case is controlling, because neither a judgment for alimony nor a judgment for child support is among the enumerated exceptions to the homestead exemption.

Affirmed.