author: CakletoN Harris, Chief Justice.

text:
    Carl W. WIDMER v. Roy G. WOOD et ux
    5-4346
    421 S. W. 2d 872
    Opinion delivered December 4, 1967
    [Rehearing denied January 15, 1968.]

      Carl W. Widmer, pro se.

      Hardm, Barton & Jesson, for appellees.
   CakletoN Harris, Chief Justice.

On February 8, 1967, Carl W. Widmer, appellant herein, instituted suit against Roy G. Wood and Helen L. Wood, appellees, asserting that he had purchased certain lands from the appellees on October 19, 1961, and since that date had been the equitable owner of these lands (which were described in a contract of sale filed with the complaint). It was alleged, inter alia, that appellees encroached upon the lands by bringing cattle to graze thereon, by making enclosures and other structures, and by cutting and removing numerous trees. Appellant asserted that he had suffered damages in the amount of $60,150.00, and he prayed for treble damages, or a total judgment in the sum of $180,450.00. Appellees thereupon filed a motion to dismiss the complaint, asserting that appellant had previously filed a lawsuit against them, alleging and setting forth the identical matters that appeared in the present complaint; that the court had, on September 13, 1966, entered its judgment dismissing Wid-mer’s complaint for the reason, inter alia, that the court was without jurisdiction to adjudicate matters of trespass regarding lands located wholly within another state. The motion contended that the court’s judgment had become the law of the ease and was res judicata to the instant complaint. No proof was ever taken on the motion. A few days later, appellant served a “request for admission of 'facts” (22 different requests) upon the attorney for appellees. Four days later, appellees filed a “motion to quash,” setting out their objections to answering the requested admissions, asserting, inter alia, that ‘ same were irrelevant and otherwise improper. These requests were not answered, and on February 21, appellees’ motion to dismiss the complaint was granted, the court holding that its judgment of September 13, 1966 (on a complaint filed September 2, 1964), had become the law of the case, and was res judicata to the current complaint; the complaint was thereupon dismissed without prejudice. Subsequently, appellant filed a motion to vacate this order of dismissal, and also moved for summary judgment against appellees on the basis that there remained no genuine issue of any material fact to be passed upon. The court denied both motions, and from the judgment so entered, appellant brings this appeal.

For reversal, it is urged that the trial court erred in not granting appellant’s motion to vacate such order; further, that the trial court erred in not granting appellant’s motion for summary judgment.

As to the first point, appellant is correct. While this cause of action was founded upon the same sales contract which was the basis of the action in the earlier case (complaint filed 'September 2, 1964), and though the complaint contains many of the same allegations that appeared in the former pleading, the court erred in granting this motion to dismiss. In Bolton v. Mo. Pac. Rd. Co., 148 Ark. 319, 229 S. W. 1025, a similar motion was filed, as follows:

“ ‘MOTION TO DISMISS ON GROUND OF FORMER ADJUDICATION.
“ ‘Comes the defendant and moves the court to dismiss the action of the plaintiff herein, because it was a party to a former suit filed in this court in which all the matters that are now set up and complained of were in issue, and the court sustained a demurrer to that complaint, which was affirmed by the Supreme Court of this State; and that there are no new matters arising, and that all of the issues and questions have been adjudicated, and the plaintiff is bound thereby.’
“This motion was sustained, and the cause dismissed, and this appeal is prosecuted to reverse that action. ’ ’

In reversing, this court said:

“The plea of former adjudication is one which, to be available, should be pleaded by answer as a defense. Adams v. Billingsley, 107 Ark. 38. The answer tendering that plea should set out the facts upon which it is based, and the issue is not properly raised by a motion to dismiss which does not recite the facts upon which the plea is based.”

In Kendrick v. Bowden, 211 Ark. 196, 199 S. W. 2d 740, we said:

“A further argument for reversal is that their plea of res judicata should have been sustained. We have copied above the exact language of this alleged plea, as set out in appellants’ abstract. We think this so-called plea is wholly insufficient to raise the question of a former adjudication of the same subject matter between the same parties. This court follows the general rule, supported by the weight of authority, ‘that one relying on the doctrine of res judicata must plead the prior adjudication.’ 30 Am. Jur., p. 984, § 255. In Bolton v. Mo. Pac. Rd. Co., 148 Ark. 319, 229 S. W. 1025, we said: ‘The plea of former adjudication is one which, to be available, should be pleaded by answer as a defense. Adams v. Billingsley, 107 Ark. 38, 153 S. W. 1105. The answer tendering that plea should set out the facts upon which it is based, and the issue is not properly raised by a motion to dismiss which does not recite the facts upon which the plea is based.’”

See also Southern Farmers Assn., Inc. v. Wyatt, 234 Ark. 649, 353 S. W. 2d 531.

We do not, however, agree with appellant that he was entitled to summary judgment. This contention is based on the fact that the requests for admissions were not answered, and appellant therefore contends that they stand admitted. It is true that no answers were filed, but the motion heretofore mentioned constituted written objections.

Because of the court’s error in dismissing the complaint on the basis that the prior judgment was res judicata„ the judgment herein is reversed, and the cause remanded for proceedings not inconsistent with this opinion.

      Nearly all of the requests for admissions were similar to those set forth in the earlier case.

      The judgment of the Sebastian Circuit Court in this case, styled Carl W. Widmer v. Roy G. Wood, et ux, was affirmed by this court on September 18, 1967; however, a substitute opinion was handed down affirming the trial court on November 13, 1967.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    J. D. WALTHOUR et al v. L. Julian ALEXANDER et al
    5-4335
    421 S. W. 2d 613
    Opinion delivered December 4, 1967
    [Rehearing denied December 18, 1967.]

      II. B. Stubblefield, for appellant.

      Thomas J. Bonner, for appellee.
   George Rose Smith, Justice.

This is a zoning dispute. The appellee Alexander owns a triangular piece of property on the southwest corner of the intersection of Van Burén and Club Road in Little Rock. Alexander uses the little building on the property as a pick-up and delivery station for patrons of his laundry business. In 1965 the Board of Zoning Adjustment granted Alexander’s application for permission to add 300 square feet to his building, making it about 850 square feet in all. This suit to review the Board’s action was brought by the appellants, neighboring landowners who had opposed the issuance of the permit. The chancellor sustained the Board. For reversal the appellants contend that the Board’s action was (I) illegal, (II) arbitrary, and (III) barred by limitations.

I. Illegality. Apparently the Board reclassified Alexander’s property as “F Commercial” back in 1959. The appellants insist that under the governing statute and the Little Rock zoning ordinance (which was marked Exhibit 11 at the trial) the Board had no power to rezone the property and that therefore the permit now in dispute violated a zoning restriction applicable to nonconforming uses. The appellee’s answer to this contention is that the zoning ordinance (as well as several, allied-exhibits) was not put in evidence at the trial and so cannot be considered here.

We do not take judicial notice- of city ordinances. Campbell v. City of Hot Springs, 232 Ark. 878, 341 S. W. 2d 225 (1960). Nor can we consider a document that was not received in evidence even though it may have been in the courtroom, as, for example, an exhibit to a pleading. Wright v. Midland Valley R. R., 111 Ark. 196, 163 S. W. 1151 (1914); National Annuity Assn. v. McCall, 103 Ark. 201, 146 S. W. 125, 48 L.R.A. (n.s.) 418 (1912).

Thus the question is, was Exhibit 11 put in evidence at the trial? We have suffered much anxiety in the study of this question, but we cannot conscientiously say that the exhibit was actually introduced. We may explain our conclusion by referring to pertinent parts of the record.

During the examination of the plaintiffs’ first two witnesses five exhibits were received in evidence. In each instance the court made a ruling. This excerpt is typical:

Mr. Stubblefield: Could I have the one that shows both marked as Plaintiffs’ Exhibit No. 2 and the second one as Exhibit No. 3?
The Court: Let them be introduced.
(Thereupon, said pictures were marked for identification and received in evidence.)

A few minutes later, after the plaintiffs’ fourth witness left the stand, the record reflects the following:

Mr. Stubblefield: Your Honor, Mr. Bonner and I mentioned before the trial that each of us had some exhibits we would like to have marked for identification, and I believe we said we would let them be marked for identification without conceding their relevancy or competency. The reason we are doing it at this time, the witnesses who testified wanted to get áway, and he was kind enough to consent we could do that.

Counsel for the plaintiffs then produced and described five pieces of documentary evidence, which were marked for identification as Exhibits 6 through 10. Counsel for the defense then, in the same manner, produced and described eight exhibits — the zoning ordinance and seven pictures — which were marked for identification as Exhibits 11 through 18.

Thereafter the reporter’s transcribed record of the trial contains no .additional reference to Exhibits 6 through 11. When defense counsel, in questioning his own client, sought to use the picture marked as Exhibit 12 this occurred:

Mr. Bonner: I hand you here Exhibit No. 12 and ask you to identify that.
A. This is a front view of my building taken from the west side of Kavanaugh Boulevard . . .
Mr. Bonner: Do you want me to place each of these in evidence again? We have had them marked for identification purposes.
Mr. Stubblefield: No, sir.
Mr. Bonner: These will be considered in evidence. That is Exhibit No. 12.

Continuing his direct examination, Bonner successively showed all seven pictures to Alexander, who explained what each one portrayed.

All exhibits except No. 11 are contained in the bound record, which is certified by the reporter and the chancery clerk. Exhibit 11, which is bulky, was sent up in a separate envelope bearing a certificate by the reporter that it “was introduced during the course of the trial in the above styled cause of action.”

Taking the record as a whole, we must conclude that Exhibit 11 was not put in evidence. With respect to the first five exhibits the chancellor made a ruling in every instance: “Let it [them] be introduced.” By contrast, Exhibits 6 through 18 were presented in quick succession and marked for identification only, “without,” in the words of counsel, “conceding their relevancy or competency.” Clearly it was contemplated, as is usually the case with reference to exhibits marked for identification, that a definitive ruling would be made as each exhibit was actually offered in evidence. Exhibit 11 was never so offered. The omission is understandable, for the exhibit was produced in the first instance by defense counsel. There was no reason for him to put the zoning ordinance in evidence, because it was essential only to his adversaries’ case — not to that of his own client.

We should point out that Exhibits 12 through 18 stand in a different position. Those pictures were shown to the witness Alexander and commented on by him. In such circumstances a formal ruling by the court was not necessary. J. W. York & Sons v Powell, 125 Ark. 597 (mem.), 187 S. W. 628 (1916); School Dist. No. 68 v. Allen, 83 Ark. 491, 104 S. W. 172 (1907). But there was no similar actual use of Exhibit 11 in the examination of any witness. Nor does the reporter’s certificate on the envelope containing the ordinance, stating that the exhibit was “introduced,” cure the defect. That certificate does not purport to be a transcription of the reporter’s notes. The reporter’s personal belief that the exhibit was introduced cannot take the place of a ruling by the court.

Counsel for the appellants did not file a reply brief; so we do not know what his answer to the appellee’s argument might be. We have not overlooked, however, the possible contention that (a) Exhibit 11 was produced by the appellee, (b) he thereby avouched its accuracy, (c) the appellants make no objection to the exhibit, and (d) therefore it should be considered by this court.

We recognize the force of that reasoning and do not imply that it is unsound. The trouble is that the appellants, in presenting their argument on the issue of illegality, also rely upon Exhibits 6, 7, 8, and 9 in their effort to show that the appellee’s pick-up station constitutes a nonconforming use with respect to which structural alterations are prohibited. Exhibits 6 through 9 were, like Exhibit 11, not put in evidence. But, unlike 11, Exhibits 6 through 9 were produced by the appellants and therefore were not avouched by the appellee. Hence even a holding that Exhibit 11 is properly before us would not dispel the uncertainty that confronts us with respect to the true zoning classification of the property in issue.

II. Arbitrariness. This and' the third point do not call for an extended discussion. The plaintiffs attempted to prove that the proposed addition to the pickup station would create a traffic hazard at the intersection and would prevent passing motorists on Kava-naugh from seeing the plaintiffs’ places of business, with a consequent loss of patronage. The plaintiffs’ testimony about the traffic hazard, given by lay witnesses, was more than offset by the testimony of the only expert witness who testified, DeNoble, who appeared for the defense. We can attach no weight to the fact that the enlargement of Alexander’s building may obstruct the public’s view of the appellants’ shops, for, in the absence of proof that the addition is illegal, there is no basis for saying that Alexander is not entitled to use his property in the way that is proposed.

III. Limitations. It is argued by the appellants that a petition similar to this one was denied in 1959, that Alexander took an appeal from that denial, that he took a nonsuit in the circuit court, and that he failed to refile his suit within a year. A sufficient answer to this contention is that a zoning board may .entertain successive applications for the same relief, especially when there is a showing of changed conditions. McQuillin, Municipal Corporations, § 25.275 (1965). It appears that Alexander’s present application is for permission to construct an addition materially smaller than the one involved in the prior proceeding. That difference may well have been the change in conditions which induced the Board to change its mind.

Affirmed.

Harris, C. J., and Byrd, J., dissent and would grant rehearing.


text:
    MORRILTON FEDERAL SAVINGS & LOAN ASSN. et al v. ARKANSAS VALLEY SAVINGS & LOAN ASSN. et al
    5-4352
    420 S. W. 2d 923
    Opinion delivered December 4, 1967

      Allen Laws Jr., Phillip H. Loh, Lester & Sbults, for appellants.

      Ben Allen, for appellees.
   George Rose Smith, Justice.

The appellees applied to the Savings and Loan Association Board for a charter under which they would do business as the Arkansas Valley Savings & Loan Association, in Russellville. The application was opposed by two Russellville banks and by three savings and loan associations — one at Russell-ville, one at Clarksville, and one at Morrilton. After an extensive hearing, at which much testimony was heard, the Board granted the charter. The circuit court affirmed the Board’s decision. Here the appellants insist that the appellees failed to prove four of the statutory conditions to the issuance of a charter.

For convenience we will discuss together the appellants’ two principal contentions, which are interwoven. It is argued that the proof fails to show that there is a public need for the new association and that its operation will not unduly harm other financial institutions in the area. Ark. Stat. Ann. § 67-1824 (Repl. 1966). It is conceded that the substantial evidence rule governs our review in a case of this kind. Section 67-1811; Izard v. Arkansas Sav. & Loan Assn. Board, 239 Ark. 670, 393 S. W. 2d 245 (1965).

"We find an abundance of proof to show that the new association is needed. The firm will operate mainly in Pope and Yell counties. Tbe applicants’ testimony forecásts a vigorous economic growth for that part of the state. With the impending navigability of the Arkansas river cheap water transportation is in sight. The huge Dardanelle Reservoir supplies electric power, recreation, and homesites for retired citizens. The section is served by rail and by an interstate highway. Natural gas, electricity, water, and coal aré available in liberal quantities, as attractions to new industries.

There is a need for another financial institution. It is not the policy of the Russellville banks to make long-term loans, which are required in the financing of residential subdivisions. Until the present application was filed the existing savings and loan association at Rus-sellville had hardly been energetic in seeking to'expand its business. Its advertising budget was small. Its share of the local outstanding loans was materially smaller than the national average for such institutions. There is proof that at times its available lending capital was inadequate. This comparative inactivity may have been due in part to the fact that of its seven directors three were also bank directors and a fourth was a substantial stockholder in a local bank. Moreovér, both the savings and loan association at Morrilton and the one at Clarks-ville have a substantial volume of loans in Russellville despite certain inconveniences, such as the matter of appraisals, in the making of out-of-county loans.

Similar considerations indicate that the Arkansas Valley association will not unduly harm the other financial institutions. In fact, the witness Harold Neal, president of one of the protesting banks, gave his reasons for believing that savings and loan associations do- not really compete with banks. There is proof that fears similar to those now expressed by the appellants were voiced when a second bank at Dardanelle was proposed in 1958 or 1959, but it turned out that both the old bank and the new one prospered. On the whole, the record contains more than sufficient proof to sustain the Board’s findings upon the first two points.

The pi'otestants ’ third contention is that the evidence does not show that the character, responsibility, and general fitness of the persons who will serve as directors and officers are such as to warrant belief that the association will have qualified full-time management. Section 67-1824. There is really no serious question about the character, responsibility, and general fitness of the appellees. They testified that a qualified and experienced full-time manager would be employed. We do not read the statute as requiring that the manager be employed before the charter is issued. That step would not ordinarily be practical, for, as in the case at bar, a year or two may elapse between the application for the charter and the commencement of business by the association. Too, the Board' could assume that simple self-interest on the part of those investing in the new venture would make it reasonably certain that they would seek competent management.

Fourth, it is said that there is no showing that the Arkansas Valley association has filed satisfactory evidence that its savings accounts will be insured by an appropriate federal agency. Section 67-1831. The statute, however, does not require such proof before the charter is approved. It merely states that the association shall not carry on business until such evidence has been filed. Hence the appellants’ present objection is premature.

Affirmed.


author: Geoege Rose Smith, Justice.

text:
    UNITED EQUITABLE INSURANCE CO. v. William G. KARBER
    5-4384
    421 S. W. 2d 338
    Opinion delivered December 4, 1967

      Francis T. Donovan, for appellant.

      Jones & Stratton, for appellee.
   Geoege Rose Smith, Justice.

This is an action brought by the appellee to recover hospital expenses of $433.29 under an insurance policy issued by the appellant. The plaintiff attempted to obtain service of process on the defendant under the Unauthorized Insurers Process Act. Ark. Stat. Ann. §§ 66-2903 to 66-2907 (ftepl. 1966). The defendant appeared specially to file a motion to quash the service, on the ground that the plaintiff had not complied with the statute. This appeal is from a judgment finding that the service was good and awarding a default judgment to the plaintiff. The sufficiency of the service is the question at issue.

The complaint, filed on July 1, 1966, alleged that the defendant was an Illinois insurance company. Apparently a summons was served on the Insurance Commissioner, because the record contains a copy of a form letter by which that officer sent a copy of a summons to the defendant on July 15, 1966. The only other pertinent parts of the record, as certified by the clerk of the trial court, are the defendant’s motion to quash the service, the judgment appealed from, and the notice of appeal. There is no testimony.

As far as this record shows, the plaintiff did not comply with the statute governing the service of process. That statute requires not only that the summons be served on the Insurance Commissioner but also that the plaintiff’s attorney send a copy of the summons to the defendant by registered mail and thereafter file with the clerk of the court (a) the defendant’s return receipt for the registered letter and (b) the attorney’s affidavit showing compliance with the statute. Section 66-2905. That section goes on to provide that the plaintiff shall not be entitled to judgment by default until thirty days after the filing of the affidavit of compliance.

Here there is no showing that the plaintiff’s counsel either gave the defendant the required notice by registered mail or filed the necessary affidavit of compliance with the statute. Thus, on the record before us, the motion to quash the service should have been sustained.

The appellee, in seeking to avoid the consequences of his failure to comply with the statute, makes two suggestions. First, he argues that the defendant waived its present contention by sending a letter to the Insurance Commissioner in which it was stated that the summons had been received and that the defendant would either dispose of the matter with opposing counsel or retain local counsel to handle the case.

There are two flaws in this argument. One, the letter to the Insurance Company was written by a firm of attorneys who are not shown to have been authorized to represent the insurance company. While it is true that an attorney who appears in court is presumed to be authorized to represent his client, Voss v. Arthurs, 129 Ark. 143, 195 S. W. 680 (1917), his authority in other respects must be proved. See Bank of Batesville v. Maxey, 76 Ark. 472, 88 S. W. 968 (1905). Here the attorney’s letter to the Insurance Commissioner did not amount to the filing of a pleading in the Faulkner circuit court and so did not carry any presumption of authority to represent the defendant.

Two, it is not shown that either the letter in question or several other documents relied upon by the ap-pellee were put in evidence in the court below. Those documents follow the clerk’s certification of the record and are authenticated only by a statement of the court reporter that they are correct copies “of the record introduced in open court on the 1st day of May, 1967, in the captioned case, no testimony being presented.” There is no showing whatever that the documents were offered in evidence or received in evidence by the trial court. On their face they are plainly inadmissible without having been identified by authenticating testimony. But the reporter states that no testimony was presented. With the record in such a seriously deficient condition we are unwilling to rest our decision upon the assumption that the interloping documents were properly before the trial judge.

The appellee’s second contention is that the controlling statute prohibits this defendant from filing its motion to quash service without first having qualified to do business in Arkansas or having filed bond securing the payment of any judgment that may be rendered. Section 66-2907.

We do. not so construe the statute when it is read as a whole. Section 66-2905 affirmatively declares that the plaintiff is not entitled to judgment by default until the attorney’s affidavit of compliance with the statute has been filed. Section 66-2907 (3) permits the unauthorized insurer to file a motion to quash service on the ground that it has not done any of the acts which the statute enumerates as a basis for the court’s jurisdiction. The statute does not affirmatively state that the defendant may file a motion to quash service on the ground that the plaintiff has not complied with the act in his attempt to obtain personal jurisdiction over the defendant.

Thus the statute contains an apparent conflict within itself, in that it requires the affidavit of compliance as a condition to the entry of a default judgment but does not expressly authorize the defendant to file a motion to quash service on the ground that the affidavit of compliance is missing. In this situation we are unwilling to say that the legislature’s positive command that the affidavit of compliance be filed is nullified by the statute’s failure to mention noncompliance as a basis for quashing service. It is the settled policy of our law to permit a defendant to question the sufficiency of the service of process by entering a special appearance for that purpose only. Smith Chickeries v. Cummings, Judge, 224 Ark. 743, 276 S. W. 2d 48 (1955); American Farmers Ins. Co. v. Thomason, 217 Ark. 705, 234 S. W. 2d 37 (1950); Leflar, Conflict of Laws, § 34 (1959). That policy is rooted in fairness and justice. We are not prepared to say that the General Assembly’s positive and explicit direction that the affidavit of compliance be filed was nullified by the statute’s failure to specify the absence of that affidavit as a basis for a motion to quash service.

The judgment is reversed and the cause remanded with directions to quash the service of process and to proceed further consistently with this opinion.


author: Paul Ward, Justice.

text:
    E. E. GREGORY et al v. Court GORDON et al
    5-4386
    420 S. W. 2d 825
    Opinion delivered December 4, 1967

      William M. Lee and George E. Pike, for appellants.

      Coleman, Gantt, Ramsey & Cox, for appellees.
   Paul Ward, Justice.

This is an action to invalidate the result of an election in Arkansas County which imposed a one mill tax on real and personal property to be used for the maintenance of a public library. The tax issue was submitted at the General Election held on November 8, 1966.

No testimony was introduced before the trial court, and the essential facts presently set out are either undisputed or were stipulated by the parties.

(a) The tax issue was not presented to the voters in Stuttgart because that Citv had already voted a tax to maintain a municipal library.
(b) A “proper” ballot, as prescribed by the Election Commissioners, should have been printed in this form:
FOR a one mill tax on real and personal property to be used for maintenance of a public county library service or system, (followed by a “box” to be used by the voter to indicate his choice.)
AGAINST (followed by the same words and “box” that follows “FOR” above).
(c) Some of the printed ballots were “proper” and some had no “box” after “AGAINST” and also omitted the word “system”. These ballots will be referred to as “defective” ballots.
(d) “Proper” ballots were distributed to all “absentee” voters and to one voting precinct.
(e) “Defective” ballots were distributed to the other twenty-one voting precincts.
(f) The compilation of the votes (under supervision of the trial judge) reflects:
—For the tax 1506,
—Against the tax 1035, and
—Not voting 1540.

On December .9, 1966 Court Gordon and others (residents and property owners of Arkansas County), appellees, filed a complaint in circuit court against E. E. Gregory et al (Election Commissioners), appellants, alleging in substance that the use of “defective” ballots “operated as an obstruction to'the free and intelligent casting of the vote” and created “a doubt as to how the election would have resulted if the ballots had not been defective”. The prayer was, in essence, that “the said one mill tax be set aside” as “void and illegal”. Appellants entered a general denial.

Following a hearing on the issue raised the trial court entered a judgment, holding: The relief sought by plaintiffs (appellees) is granted; the one mill tax is hereby set aside and held for naught, and; the one mill tax on real and personal property in Arkansas shall not be assessed.

For reversal appellants make two contentions: One, the suit was not filed in time; Two, the “defective” ballots did not affect “the free and intelligent casting of the vote”

One. It is here contended by appellants that the case must be reversed because appellees failed to comply with Ark. Stat. Ann. § 3-814 (Eepl. 1956), but we see no merit in this contention.

The mentioned section, in material parts, reads:
“Whenever it shall appear by affidavit that an error or omission has occurred ... in the printing of ballots, the Circuit Court . . . shall, upon the application of any elector, by order, require the County Election Commissioners to immediately correct such error ...”

It is admitted by appellants that appellees’ complaint was filed within the thirty-day period provided by law. The answer filed by appellants, in material part, reads:

“The defendants deny each, and every allegation contained in the complaint of the plaintiffs and the amendments thereto.”

As previously stated, no oral testimony was introduced. Consequently it definitely appears from the record that the matter of an “affidavit” was not raised by appellants in the answer or in the facts stipulated by the parties.

This Court has many times held that an objection not raised in the trial court cannot be raised for the first time on appeal. This rule is particularly applicable here. If the matter of an “affidavit” had been raised in the trial court or in the stipulations appellees might have been able to supply the same. This Court does not know, and will not presume, appellees could not have done so.

Two. The other point relied on by appellants is stated as follows:

“Errors appearing on the face of a part of the ballots . . . were insufficient to effect an obstruction to the free and intelligent casting of the vote or to the ascertainment of the result.”
Again, for reasons presently stated, we do not agree.

First, we call attention to the following statutes which are applicable here. They all appear in Ark. Stat. Ann. (Repl. 1956)

§ 3-811
“All election ballots provided by the County Election Commissioners of any county in this State for any election shall be alike . . (Emphasis Supplied).
§ 3-822
“Upon receiving his ballot, the voter shall proceed to mark it by placing an ‘X’ m the appropriate squares ...” (Emphasis Supplied).

It is not denied that about 95% of the voters in this election were furnished “defective” ballots. Also, the record reflects that there were 3970 - votes cast in the Governor’s race; that on five other issues the percentage of votes (based on 100% for Governor) ranged from 83% to 96%; and, that on the “tax” issue only 61% voted. The record further reflects that where “proper” ballots were furnished 87% voted on the “tax” issue, but where “defective” ballots were furnished only 60% voted.

In 29 C. J. S., Elections, § 173, page 486, we find this statement: >

“An Election for the submission of a proposition will be invalidated by failure to follow the prescribed form in a matter of substance, as, for example, failure to afford the voter an opportunity unmistakably to vote in the negative on the proposition submitted, and the defect cannot be cured by the statement of a majority of the electors that they voted in favor of the proposition.”

At page 487 it is further stated:

“. . . the test to be applied is' whether the ballot used gives the voter as clear an alternative to vote for or against the proposition as is given by the statutory form.” (Emphasis ours.)

The real issue before the trial court was whether the use of the “defective” ballots' caused, or reasonably may have caused, some voters not to vote or to vote for the “tax”. The trial court held this to be the result. We cannot say the trial court erred in so holding.

Affirmed.


text:
    Joe SKORCZ and J. H. HAMLEN & SON, INC. v. Mary HOWIE, Adm’x et al
    5-4358
    421 S. W. 2d 874
    Opinion delivered December 4, 1967
    [Rehearing denied January 15, 1968.]

      Wright, Lmdsey & Jennings and Bean B. Morley, for appellants.

      Bale Price and J. W. Barron Sr., for appellees.
   Paul Ward, Justice.

This is an action for damages resulting from a collision between a “log truck” and a “gravel truck”, where tbe driver of the gravel truck was killed.

The parties. Appellants are: Joe Skorcz (called Joe) and J. H. Hamlen & Son, Inc. Joe was driving his own log truck. Appellees are: Mary Howie, Adm’x of the estate of Jimmy Dale Hudson, deceased, who was driving the gravel truck, and Silas Kincaid who owned the gravel truck.

The issues. One is whether Joe was an “agent” of Hamlen. The other is a question of negligence, or what caused the collision.

Appellees sued appellants alleging Joe caused the collision, and that he' was an agent of Hamlen & Son, Inc. A jury trial resulted in a verdict in favor of appel-lees on both issues.

Some additional undisputed facts. On January 21, 1966 Joe was driving his truck loaded with logs in a westerly direction toward Little Hock on Highway 40. He was delivering the logs to Hamlen. Joe’s truck consisted of two connected units — the tractor and a trailer, joined together by a three or four inch metal pipe which ran from the wheels on the rear end of the trailer to the tractor. The logs on the trailer extended over onto the back portion of the tractor.

On the same day and time the deceased (Hudson) was driving the empty gravel truck (with a trailer) on the same highway in the same direction but to the rear of Joe.

The truck driven by the deceased ran into the rear end of Joe’s truck, causing the collision and resulting damage.

On appeal two main issues or questions are raised. One pertains to the status of Joe — was he an independent contractor or was he an agent of Hamlen? Two, is there .substantial evidence to support the jury verdict?

One. It is our conclusion ■ that Joe was an independent contractor, and there is no substantial evidence to support a finding he was an “agent” of Hamlen.

Hamlen, engaged in manufacturing wood products, purchased the timber of certain specifications on a certain tract of land. He contracted with Joe to cut, and deliver to his place of business in Little Bock, the timber for $35 per thousand feet. Joe, who had thirty-five years’ experience in this nature of work, used his own mules, tractors, chains saws, loading machine, and trucks. He had three employees, was not financed in any way by Hamlen who did not handle or assist in handling Joe’s payroll or records. There is not, and cannot he, any question about Joe being an independent, contractor under above stated facts.

Appellees, in attempting to show Joe was removed flom the above category and became an agent, rely upon the following facts disclosed by the record. About once a week a representative of Hamlen visited the tract to see if the operation was confined within proper boundary lines; if all trees of proper size were being cut; if stumps were too high, and if usable logs were being left. The record also reveals that Hamlen would tell Joe where to unload the logs when they were delivered at the yard in Little Rock. Appellees also rely on certain testimony tending to show Hamlen might have been able to discharge Joe if he, refused to do the things, mentioned above, as directed by Hamlen or his agent, and also on the fact that Hamlen and Joe had no written contract.

We find no merit in any of the above contentions on the part of appellees. In the case of J. L. Williams & Son, Inc. v. Hunter, 199 Ark. 391, 133 S. W. 2d 892, we find this language:

“It is common knowledge that hundreds of logging operations throughout the state are constantly handled under contract, both oral and written, which leave to the performing party complete independence in effectuating the purposes of such contract.”

In Pine Woods Lumber Company v. Cheatham, 186 Ark. 1060, 57 S. W. 2d 813, the pertinent facts were similar to those here — where the contractor cut and sawed trees into lengths directed by appellant’s foreman, this Court held the trial court was not warranted in submitting employer-employee question to the jury, See also, to the same effect, Moore and Chicago Mill & Lumber Company v. Phillips, 197 Ark. 131, 120 S. W. 2d 722, and Rice v. Sheppard, 205 Ark. 193, 168 S. W. 2d 198.

Tivo. A closer question is presented with regard to what caused the collision. Appellant presents an excellent and exhaustive brief to show the verdict (of liability by Joe) is “based on demonstrably false evidence and is contrary to the physical facts”. We agree with appellants’ contention (supported by citations) that substantial evidence is a question of law; that jury verdicts must not be based on conjecture or speculation, and; that, in some instances, physical facts outweigh oral testimony.

Here, it appears, appellant relies heavily on two gieneral grounds. One, the testimony of appellees’ witness, James C. Young, must be disregarded and, two, the physical facts show the grave! truck (driven by deceased) ran into the rear of Joe’s truck, causing the accident.

Young testified that he was an eyewitness to the accident; that the log truck “seemed to start stopping in the road and logs spilling all over the road and dump truck [gravel truck] coming pretty fast so he tried to swerve, hit his brakes and'he couldn’t miss it”, and that he was certain the logs started coming off the log truck before the dump truck ran into it.

For the purpose of this opinion, and to avoid unnecessary details, we admit that the jury could have very easily disbelieved the abov,e testimony and particularly other of his testimony. He was in a truck traveling east and was something like a half mile away from the accident when it happened. He says he went immediately to the scene of the accident and stayed some forty minutes, but didn’t see a policeman who was admittedly there. However, it is established that his truck was there. The jury could have found he was present.

Appellants’ main contention however appears to be that the undisputed physical facts show the accident could not have happened like Young said it did. Put another way, appellants contend the physical facts show that the gravel truck must have hit the log truck and caused the accident. This contention is principally based upon the following undisputed facts: (a) the connecting rod (joining the trailer to the tractor) was broken; (b) Joe was severely hurt by the collision, and; (c) the cal) on the gravel truck was demolished. The inescapable conclusion is drawn by appellants therefore that the said damages could not have occurred unless the gravel truck hit the log truck while it was traveling, in normal condition, along the road.

For reasons presently stated we are unable to agree with appellants’ contention.

(a) The connecting rod on Joe’s truck was broken at the point where it had been broken once before, and was re-welded. The jury saw pictures of the broken rod and could have found it was defective. They also could have found that vibration of the heavily loaded truck caused it to break, (b) They could have also found that the severe jolt (causing injury to Joe) was the result of the break in the connecting rod. This rod was bent, and part of it struck the pavement (as shown by pictures). This might have stopped the speed of the truck and thereby caused the logs to plunge forward against th;c cab in which Joe was seated. It is not denied that the logs extended onto the tractor, (c) Likewise the jury might have reasonably found that (even if the accident happened like Young said it did) the logs remaining on the truck could have caused the damage to the cab of t he gravel truck.

We also point out that when the case was tried before the jury model trucks were used to demonstrate how the accident happened- — an aid which we do not have. Taking all these things into consideration we are unwilling- to say the jury verdict was not supported by substantial evidence.

Three. The jury fixed the amount of damages as follows: $60,000 for the widow; $1,100 for the estate, and $5,277 for damage to Kincaid’s truck.

It is contended by Hamlen that the judgment in favor of the widow is excessive by pointing out that she is only eighteen years old; that she was married in August 1964; that she has no children, and that she is working and living with her parents. Hamlen, of course, will not be liable to pay the judgment;. We are therefore in no position, and are unable, to say the verdicts are excessive.

The cause is reversed in part and affirmed in part, and it is remanded for the trial court to enter judgment consistent with this opinion.

Harris, C. J., George Kose Smith and Byrd, JJ., dissent as to the affirmance.


author: Lyle Browk, Justice.

text:
    ASPHALT MATERIALS CO., INC. v. Hugo E. COLEMAN
    5-4362
    420 S. W. 2d 921
    Opinion delivered December 4, 1967

      Bridges, Young, Matthews & Davis, for appellant.

      John Harris Jones, for appellee.
   Lyle Browk, Justice.

This is a workmen’s compensation case. Appellee1, Hugo E. Coleman, claims temporary total disability as the result of a heart attack on July 12, 1966. His claim was denied by the commission, and that finding was reversed by the trial court. The only issue on appeal is whether there was any substantial evidence of a causal connection between the claimant’s work and the heart attack.

For some nine years Coleman, 48 years of age, had been employed by appellant. The company was in the business of asphalting streets, driveways, and parking facilities. In that operation an asphalt finishing machine was used to spread hot asphalt mix. Coleman’s principal job was to stand on a platform at the rear of the mixing machine and keep the valves, which controlled the flow of asphalt, properly adjusted to spread the mix evenly. Immediately in front of his platform were two fire boxes in which the heat was generated to keep the asphalt at about 300 degrees. The asphalt machine had a capacity of seven arid one-half tons. Coleman was also classified as a foreman in charge of the spreading crew in the absence of his supervisor. Those responsibilities were not too exacting because his supervisor testified the men in the crew knew what to do and how to do it.

July 12 was a hot summer day, with temperature approximately 100 degrees, and the crew worked that morning asphalting a parking lot. At 12:30 p.m. Coleman took an hour off for lunch and went home in the company’s pickup truck. He returned to the job site at approximately 1:30, and at-about the time he alighted from the truck he experienced a pain in the chest. He was taken to the hospital and was found to have suffered a heart attack.

It is not contended that Coleman experienced any unusual stress or strain on the job on July 12, or at any other date. Some two weeks prior to that date he left the job, complaining of a pain in the stomach, and did not return to work until July 5.

Three doctors gave medical testimony. One doctor was called by the claimant, and two doctors by the respondent. They were in agreement on a diagnosis of arteriosclerotic heart disease with coronary occlusion and posterior myocardial infarction. The claimant’s doctor found a causal connection between the work performed on July 12 and the heart attack; the conclusions of the respondent’s doctors were to the opposite effect.

The claimant’s doctor listed three factors which he felt established a direct causal relation between the stress of claimant’s duties and the onset of the spasm. They were: (1) emotional factors of supervision; (2) physical stress caused by temperature changes; and (3) chemical irritants from the asphalt. The doctor reasons that “a good number of people who supervise employment of others will tell you that they become aggravated, exasperated, and mad to the point that they get sick sometimes, because they can’t get the job done, because the people won’t work .... I think that is a factor in any supervisory type job; maybe not in him, I don't know. He may take it well.” (Emphasis supplied.)

As to physical stress, the doctor emphasized temperature changes. He pointed out that Coleman was working in a temperature of 100 degrees and in close proximity to the fire boxes. As to chemical irritants from the asphalt, the doctor said: “I bring in just this chemical relationship for thought because in my own mind I think that that, too, may be a factor. (Emphasis supplied.)

On cross-examination claimant’s doctor testified that from the standpoint of chemicals, he would place alcohol and nicotine in the same harmful category with chemicals from the asphalt. He advanced his theory that alcohol may be a causative factor in irritating the blood vessel wall, and that nicotine has a “basal spastic- effect. ’ ’

The doctor was asked about a written statement furnished respondent on August 16 in which he said: “His work may have precipitated the attack.”

“Q. What did you mean by that statement?
“A. Exactly what it said.
“Q. It ‘may’ have precipitated his attack?
“A. (Affirmative nod.) As far as I am concerned, the man upstairs is the only one that knows.”

With, reference to alcohol and smoking, Coleman had given his doctor a history of inveterate smoking and of being a “long term nser of alcohol.’’ The doctor’s case history showed that Coleman had consumed a considerable amount of alcohol over the weekend of July 4.

Opposed to the medical testimony we have just recited were the opinions of two doctors to the effect that there was no causal connection. As is usually found in heart cases before us, there were some inconsistencies brought out on cross-examination, but certainly not enough to destroy the credibility of the testimony of respondent’s doctors.*

After a careful examination of the record we are unable to say that there was no substantial evidence to support the unaniiAous conclusions of the commission. In a written opinion the commission laid stress on what they found to be weaknesses in the claimant’s medical evidence. This was their prerogative as fact finders. The testimony here recounted justifies those findings. Finally, they found the preponderance of the medical evidence favored the contention of the respondent.

In resolving the issue before us, we are mindful of those cardinal principles so well established as to need no citation of authority: (1) the compensation act is to be construed liberally in favor of the workman; (2) the burden is on the claimant to show causal connection between his heart attack and his employment; and (3) we give the evidence its strongest probative force in favor of the commission’s findings because those conclusions carry the weight of a jury verdict.

Reversed and dismissed.


author: Lyle Brown-, Justice.

text:
    Clint WALDEN and CAMPBELL-BELL, INC., v. Harold Ray HART and Clyde RATHER
    5-4368
    420 S. W. 2d 868
    Opinion delivered December 4, 1967

      Pearson & Pearson, for appellants.

      Putmcm, Davis & Bassett send, Shaw, Jones & Shaw, for appellees.
   Lyle Brown-, Justice.

This is a tort case arising out of an intersection collision between an ambulance and a passenger car. Appellees, plaintiffs below, occupied, the ambulance; they recovered judgment against Clint Walden, appellant, who was driving the passenger car. Campbell-Bell, Inc., owner of the car driven by Walden, intervened to recover property damages from Harold. Bay Hart, the ambulance driver. Campbell-Bell was denied recovery. The principal issue on appeal concerns the attack by appellants on the constitutionality of our statute which vests in the chief of police the power to authorize or designate certain ambulances as emergency-vehicles.

Harold Bay Hart, owner and operator of the ambulance, was carrying a heart patient from Westville, Oklahoma, to Veterans Hospital in Fayetteville, Arkansas. The vehicle was equipped with the statutory siren and mounted flashing lights. Appellee Bather was riding in the ambulance and seated beside the patient. At the intersection of College Avenue and North Street in Fayetteville, Hart was faced with a red light. Hart was proceeding through the red light, using his siren and flasher signals. Walden entered the intersection at about the same time from North Street, intending to drive across College Avenue. The vehicles collided in the southeast quadrangle of the intersection, Hart’s lane of travel. The chief of police of Fayetteville testified he was aware that Hart regularly brought patients to Fayetteville and the chief considered Hart’s ambulance an emergency vehicle. He had not been requested to specifically designate it an emergency vehicle but the chief testified he recognized it as such.

Appellants timely challenged the validity of Ark. Stat. Ann. § 75-402(d) (Bepl. 1957) which defines authorized emergency vehicles as follows:

“Vehicles of the fire department (Fire-Patrol), police vehicles, and such ambulances and emergency vehicles of municipal departments or public service corporations as are designated or authorised by the (commissioner) or the (chief of police of an incor porated city).” (Italics supplied.)

The recited provision is a part of the Uniform Motor Vehicle Code. The italicized portion of the act would fall if appellants’ contention of unconstitutionality is sustained.

We are aware that an act of the Legislature is presumed constitutional and should he so resolved unless it is clearly incompatible with the constitution; and that any doubt must be resolved in favor of constitutionality. Hickenbottom v. McCain, 207 Ark. 485, 181 S. W. 2d 226 (1944).

Under our constitutional doctrine of separation of powers the functions of the Legislature must be exercised by it alone. That power cannot be delegated to another authority. Ark. Const. Art. 4. Oates v. Rogers, 201 Ark. 335, 144 S. W. 2d 457 (1940). Had the Legislature, in delegating the power to the chief of police or state motor vehiclp commissioner, afforded reasonable guidelines, we would have a different situation. That is because the Legislature may delegate “the power to determine certain facts, or the happening of a certain contingency, on which the operation of the statute is by its terms made to depend.” State v. Davis, 178 Ark. 153, 10 S. W. 2d 513 (1928). But here the Legislature gave to the named authorities an unbridled discretion and that is fatal to the italicized provision of § 75-402 (d).

The motor vehicle code of the City of Dallas, Texas, contained a provision identical with our § 75-402 (d), except that it does not use the word “commissioner.” The Texas Supreme Court invalidated that section of the Dallas code insofar as it pertained to the power of the chief of police. Walsh v. Dallas Ry. & Terminal Co., 167 S. W. 2d 1018 (1943). That decision was based on the fact that no standard was set to guide the chief in administering his duties.

Typical of valid legislation in this field is an ordinance enacted by Utica, New York, and discussed in Rizzo v. Douglas, 201 N. Y. S. 194 (1923). That ordinance made it unlawful to operate a taxicab in Utica without first having secured a license approved by the commissioner of public safety. The court said if the ordinance had stopped at that point, the attack of unconstitutionality “would be of great force.” However, the ordinance set up these guidelines for the commissioner:

“The applicant must satisfy the said commissioner of public safety that he is over eighteen years of age; of good moral character; competent to drive a motor vehicle upon the streets of the city of Utica and has a thorough knowledge of the laws of the state of New York affecting or regulating the operation of motor vehicles, the traffic ordinances of the city of Utica and of this ordinance.”

In California State Automobile Ass’n. Inter-Insurance Bureau v. Downey, 216 P. 2d 882 (1950), the state insurance commissioner suspended appellant’s license to write automobile liability insurance in California. There the Supreme- Court said:

“There can be no doubt that it is the law that a valid statute cannot delegate unlimited powers to an administrative officer and that, to be valid, the statute must provide an adequate yardstick for the guidance of the executive or administrative body or officer empowered to execute the law.”

There are two situations in which the “guidelines rule” is substantially liberalized: first, when it is difficult to lay down a definite or comprehensive rule; and secondly, when the administrative officer is dealing with matters involving public morals, health, safety, and general welfare. But a statute or ordinance which “reposes absolute, unregulated or undefined discretion in an administrative body will not be upheld.” City of Florence v. George, 127 S. E. 2d 210 (S. C. 1962). See 12 ALR p. 1435 and 92 ALR p. 400.

■Since § 75-402(d) obviously provides no standards for the chief of police or commissioner, appellees point to Ark. Stat. Ann. § 75-725(b) and (c) (Supp. 1967). There it is required that emergency vehicles be equipped with a siren, whistle, or bell, and that certain other emergency vehicles mount on top of the car two alternately flashing red lights. Those are all the special requirements cited us which are imposed on emergency vehicles. To say that those two provisions establish sufficient standards for the licensing of an emergency vehicle is unreasonable. Certainly a competent administrative officer would take those two statutes into consideration in evaluating an application for a permit. But what other factors are to be considered by him? The legislation does not answer that question. That vacuum creates the constitutional defect.

The practical danger created by the absence of legislative standards is exemplified in this case. The chief of police at no time made a cheek of this ambulance. He was not aware of any affirmative responsibility reposed in him. He merely “considered” Hart’s ambulance as an emergency vehicle because (1) his ambulance was equipped with red lights and a siren, and (2) he knew Hart brought patients to Fayetteville hospitals. What about other factors so essential to protect the public from the inherent dangers of an emergency vehicle? For example, consider those essential standards quoted from the Rizzo case. Our statutes give no authority to the chief to ascertain any facts about the age of the driver, his character, his competency as a driver, or his knowledge of traffic laws.

Appellees argue that some nineteen other states and numerous municipalities have the same provision as our § 75-402(d) and that, excepting Texas, its constitutionality has never been attacked. However, a review of many statutes and cases in other -jurisdictions reveals that their legislatures have, in numerous instances, supplemented their statutes with additional safeguards that remove the constitutional infirmity found in our situation.

Arkansas adopted the Uniform Motor Vehicle Act, with some modifications, in 1937. Since that time it has been substantially amended by our Legislature to keep abreast of changing conditions. In the pocket part of Uniform — Act, § 1, 11 U. L. A., is found this statement: “The uniform and model acts constituting this volume were declared obsolete or were withdrawn by the National Conference of Commissioners on Uniform State Laws in August 1943.” That is understandable because the Uniform Motor Vehicle Code is of 1930 vintage. We point up these facts to show that the original act is not entitled to veneration. Our § 75-402(d) was in the code as first adopted.

In view of a possible retrial we shall briefly consider objections made by appellants to the giving, and refusal to give, certain instructions.

(1) Campbell-Bell asked for two instructions covering its theory that the driver Walden was a gratuitous bailee. Walden regularly drove the corporation’s car from work to his home, where he kept it overnight. We have examined those instructions and find them to be confusing and not understandable. Siee our per curi-am order of February 1, 1966, and reproduced inside the front cover of AMI. Had proper instructions been offered on that point we think they should have been given.

(2) The trial court gave AMI 2219, “Present Value — Definition.” That term was not used in any instructions, hence the instruction was inappropriate.

(3) Campbell-Bell requested, and was refused, AMI 701, “Agent — Employee—Definition.” Since the jury was called upon to decide the scope of Walden’s activities as they related to his employer, it would have been proper to give that instruction. AMI 702 and AMI 703 were given.

The effect of our holding that portion of § 75-402(d) which we italicized to be unconstitutional is to place Harold Ray Hart’s vehicle in the category of a private ambulance. See Buck v. Ice Delivery Co., 29 P. 2d 523 (Ore. 1934).

Reversed and remanded.


author: John A. Fogleman, Justice.

text:
    Delmeray JOHNSON v. Laverne Corine JOHNSON
    5-4360
    421 S. W. 2d 605
    Opinion delivered December 4, 1967
    [Rehearing denied December 18, 1967.]

      Roy Finch Jr., for appellant.

      Jones & Stratton, for appellee.
   John A. Fogleman, Justice.

This is an appeal from an order of the chancery court denying' appellant’s motion to dismiss a divorce action and holding him in contempt of court.

The parties had lived together in Little Rock until early July 1966 when the wife left and went to Faulkner County where she filed the ■ suit on July 12, 1966. She took their children with her and obtained employment in Conway. Appellant was served with summons in Pulaski County and filed an answer and an amended answer. In the latter pleading he admitted appellee’s allegation of residence in Faulkner County, denying only the alleged grounds for divorce. Appellant came to Conway where appellee was living on December 11th and the parties lived together as husband and wife in a house she had rented until December 16th when a hearing on her divorce petition had been scheduled. Appellee says that appellant asked her every night when he came home from work if she had called off the divorce action. On December 16th. at 8:45 A.M. she called her attorney, told him they “had gone back together” and asked that the case be dismissed. She said that appellant had asked her to take him back and that she did on his promise to be a hnsband to her and a father to the children. She asked dismissal of the suit on the basis of this promise. Appellant appeared in court on December 16th and represented that the parties had reconciled and that he had moved to Conway. The court then made a docket entry showing the case dismissed. Appellant testified that he left the courtroom about 11 A.M., went back to the house where he stayed a few minutes, and then went to Little Rock where he called his present attorney about 2 P.M. Thereafter a divorce suit was filed in his behalf in Pulaski County and a summons was served on appellee about 4 P.M. when she returned home from work. Appellant’s only explanation for these actions was: “I just got to thinking about it and decided I wasn’t happy and decided to contact my attorney.”

The chancellor, by order made on December 28th during the same term of court, vacated the December 16th docket entry. He also ordered appellant to show cause on January 6, 1967 why temporary support orders should not be reinstated and why he should not be adjudged in contempt. On that date appellant appeared and filed a motion to vacate the order of December 28th and reinstate that of December 16th, alleging that ap-pellee was not a resident of Faulkner County and that the Pulaski Chancery Court had jurisdiction of the subject matter and the parties. After a hearing on February 10th, the trial court denied the motion to vacate, reduced the amount previously fixed for child support payments, and held appellant in contempt of court. The order provided for a sentence of thirty days in jail and a fine of $100.00, both of which were suspended. Appellant gave notice of appeal from the court’s order and stated alternatively that he would ask this court for a writ of prohibition against the trial court from further proceeding in this matter because of jurisdictional questions. Appellant, however, has proceeded by appeal, seeking reversal of the action of the trial court and dismissal of the action. He has not asked for a writ of prohibition here.

The order of the trial court on appellant’s motion is not a final judgment and not appealable. For a judgment to be final and appealable, it must in form or effect: terminate the action; operate to divest some right so as to put it beyond the power of the court to place the s in their former condition after the expiration of the term; dismiss the parties from the. court; discharge them from the action; or conclude their rights to the matter in controversy. City of Batesville v. Ball, 100 Ark. 496, 140 S. W. 712; Piercy v. Baldwin, 205 Ark. 413, 168 S. W. 2d 1110. This court has consistently followed this rule. In State to Use of Ashley County v. Riley, 194 Ark. 485, 107 S. W. 2d 548, an order of a trial court requiring a plaintiff to proceed on an amendment to his complaint, rather than on the original complaint, was held not appealable. An order of a circuit court remanding a. case to the Workmen’s Compensation Commission for further development of facts was held not to be a final or appealable order. C. H. Nolan Lumber Co. v. Manning, 241 Ark. 422, 407 S. W. 2d 937. An a ripea] will not lie from an interlocutory order relating onlv to some question of. law or matter of practice in the course of the proceeding, leaving something remaining to be done by the court entering the order or by some court having jurisdiction to entertain the same and proceed further therewith. City of Batesville v. Ball, supra.

Even if we treat appellant’s motion as one to dismiss the action for want of bona fide residence of ap-pellee, as the learned trial judge apparently did, the order is not appealable. Wicker v. Wicker, 223 Ark. 219, 265 S. W. 2d 6. Furthermore, appellant’s position would not be helped if we treated his appeal as.a petition for a writ of prohibition. Where there is a dispute as to domicile in a divorce action, prohibition is not the proper remedy to test the correctness of a denial of a motion to dismiss. Clement v. Williams, 227 Ark. 199, 297 S. W. 2d 656. Nor is it appropriate in any case where more than one inference might be, drawn from the testimony. Coley v. Amsler, 226 Ark. 492, 290 S. W. 2d 840.

Appellant has also mistaken his remedy on that part of the order holding him in contempt of court. The proper remedy is by certiorari and not appeal. Ex Parte Butt, 78 Ark. 262; 93 S. W. 992; Whorton v. Hawkins, 135 Ark. 507, 205 S. W. 901; Ex Parte Johnston, 221 Ark. 77, 251 S. W. 2d 1012.

This order fails to state the facts constituting the contempt as it should. Ex Parte Davies, 73 Ark. 358, 84 S. W. 633. This failure does not render the judgment void, but the failure of the alleged contemner to ask that they be recited prevents review on certiorari. Ex Parte Chastain, 94 Ark. 558, 127 S. W. 973. Even if we said that these deficiencies were supplied by reason of the fact that the entire record in the case was designated and brought up, there is no basis for relief to appellant. The order itself discloses that the punishment for contempt was suspended. From the record, it does not appear that the suspension was merely a postponement of sentence so it amounts to complete remission in case of criminal contempt such as this. Stewart v. State, 221 Ark. 496, 254 S. W. 2d 55. Thus, this question is moot.

The appeal is dismissed.

      His present attorneys were not representing him in the Faulkner County proceeding at that time. Appellant states that he first tried to contact the attorney who was representing him hut was unsuccessful.


author: JohN A. FoglemaN, Justice.

text:
    CHICAGO, ROCK ISLAND AND PACIFIC RAILROAD CO. v. ARKANSAS COMMERCE COMMISSION
    5-4381
    420 S. W. 2d 917
    Opinion delivered December 4, 1967
    [Rehearing denied December 18, 1967.]

      Wright, Lindsey & Jennings, for appellant.

      Edward H. Boyett, for appellee.
   JohN A. FoglemaN, Justice.

Appellant asks that we reverse the trial court’s judgment affirming the action of the Arkansas Commerce Commission denying to it authority to discontinue the operation of its agency station at Mansfield.

Notice of discontinuance by the railroad company was filed September 26, 1966. The governing statute in such cases is Act 203 of 1961, appearing as Ark. Stat. Ann. § 73-809 (Supp. 1967), which in pertinent part reads:

“b. Any railroad operating in this State may file with the Arkansas Commerce Commission a notice of discontinuance, * * * of any of its agency stations together with a statement certified by a proper officer of the railroad to the effect that such agency station had been operating at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding, or that operating economies would result consistent with public convenience and necessity; and such agency station may thereupon be closed or modified ninety [90] days after date of filing of such notice unless a petition for the re-establishment of such discontinued, * * * agency station, signed by at least twenty-five [25] qualified electors residing in the city, town or political subdivision where the same is located, is filed with the Arkansas Commerce Commission within sixty [60] days after date of filing of the notice aforesaid. The Arkansas Commerce Commission is authorized, empowered and required to hear and consider all petitions for the re-establishment of any agency station discontinued, * * # by the railroad under authority of this Act [section], which hearing shall be held within sixty [60] days following filing of petition for reestablishment and following thirty [30] days written notice of such hearing to the railroad and petitioners. In determining whether an agency station should be discontinued, # * * the standard to be employed is whether the railroad has operated the agency station at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding the filing of the notice of discontinuance, * * * or whether operating economies would result therefrom.” [Emphasis ours]

Sufficient petitions protesting the discontinuance were filed. A hearing was held on October 26, 1966. The order of the Commerce Commission was dated January 17, 1967. The Commission found that appellant had not met its burden of proof and made the following findings:

1. The continued maintenance of an agency station at Mansfield, Arkansas, is required by the public convenience and necessity; that the facilities of the Chicago, Rock Island & Pacific Railroad Company would be inadequate to meet public necessity in the event the station at Mansfield be ordered closed.
2. Operating economies consistent with the public convenience and necessity as provided by Act 203 of the Acts of the Arkansas General Assembly of 1961 will not result from the discontinuance of the agency station at Mansfield, Arkansas.
3. Discontinuance of the agency station at Mansfield, Arkansas, should not be granted at this time. IT IS THEREFORE ORDERED, that the authority to discontinue the operation of an agency station at Mansfield, Arkansas, by the Chicago, Rock Island & Pacific Railroad Company be, and the same is hereby, DENIED.

The scope and extent of our review is outlined in Fisher v. Branscum, 243 Ark. 516, 420 S. W. 2d 882. Under the rules therein set out, we must 'determine* whether the judgment of the circuit court is clearly against the preponderance of the evidence. In doing- so, we accord due deference to the Oommission’s findings because of its peculiar competence to pass upon the fact questions involved and because of. its advantage in seeing and hearing the witnesses. We also keep in mind that the burden is on the appellant to show that the judgment is erroneous.

Appellant’s ease as to financial loss must fail for two reasons. First, there is no evidence to show whether there was financial loss for one year immediately preceding the notice of discontinuance, i. e., from September 27, 1965 to September 26, 1966. Secondly, there is nothing to show that the accounting procedures used in this case are “standard accounting procedures” in the sense of the Act.

In seeking to show financial loss, appellant offered an exhibit entitled “Chicago, Rock Island, and Pacific Railroad Company Statement Showing Revenues and Expenses Assigned to Station at Mansfield, Arkansas, For the Twelve Months Ending June 30, 1966, Including Operating Expenses Charged to Station Based on Cost of System Operation for the Year 1965.” It was prepared by Joseph Hyzny as the Chief Cost Research Analyst. This exhibit showed a loss of $6,214.95 for the operation of the Mansfield station. In order to arrive at this figure, the railroad accountants assigned to the station one-half of all revenues from freight forwarded to or received from all other points on the Rock Island lines, all revenues for freight forwarded or received from points on other lines, all p*<ssenerer revenue receipts, 40% of express receipts and certain miscellaneous revenues. They then deducted certain operating expenses. The total station expenses amounted to $8,-028.66, leaving a net station profit of $6,515.93, All these revenues and expenses were for a twelve-month period ending June 30, 1966. The alleged loss figures were obtained by determining the percentage ratio of expenses (other than station) to revenue over the entire system for the year 1965 and allocating this same ratio to the total revenues at Mansfield. By this process, $12,730.88 in indirect expenses were added to the direct expense. Other such computations showed similar losses for the years 1964 and 1965. No explanation is offered as to the reason for allocating only 40% of the express revenues to Mansfield. No receipts or revenues for handling mail are accounted for, although W. C. DeVries, appellant’s Superintendent of Station Service, offered an exhibit showing the method of handling United States mail off the passenger trains there and testified that the agent worked the mail. Among the items of indirect expenses allocated over the system were costs of maintaining the rails and right-of-way, < the cost of the engineer, conductor, brakeman, fireman, cost of maintaining the locomotives, the cost of salaries, accounting, cost of rate clerks, and attorneys’ fees.

There was no evidence of the amount of revenues received for the period between June 30, 1966, and the date of the notice of discontinuance, a period of approximately three months. No system expenses or expense/revenue ratio for twelve months preceding the date of the notice was shown. Clearly, appellant failed to make any showing of financial loss for a period of twelve months immediately preceding the filing of the notice. Mr. Hyzny testified that the only records available were up to June 30, 1966, and if there was a volume increase subsequent to that date, he had no record of it. The peculiar significance of this deficiency is illustrated by the following:

1. Only 154 carloads were shipped from Mansfield during 1965, but 151 cars had been shipped in 1966 during only 199 working days.
2. The cars of feed received by Williams Peed Company had increased from two in 1964 to three in 1965 and 38 in 1966. Mr. Earl Williams said that their cars received had more than doubled in twelve months.
3. The revenues assigned to the station had increased from $5,470.40 in 1964 to $11,622.86 in 1965 and for the twelve months ending June 30, 1966, amounted to $14,544.59.
4. A proposed cattle feéd lot for which a site adjacent to the railroad had been purchased would ship and receive cattle and feed.

If the G-eneral Assembly bad intended that the financial loss be determined for the preceding fiscal year or the preceding calendar year rather than the preceding twelve-month period, it would have clearly said so rather than using the language it did.

There was no testimony to show that the method used by appellant to determine gain or loss in this instance was according to standard accounting procedures required by Act 203 of 1961. Mr. Hyzny testified only that the exhibit offered by him: “UJs the standard procedure that we have used many times in presenting our exhibits on station closings in the state of Arkansas.” This testimony falls far short of establishing these approaches or methods as “standard accounting procedures.” This witness also admitted that the indirect cost percentage was not correct insofar as the station proper at Mansfield was concerned. He also said that under this system, the revenue assigned to Mansfield would have to be around $90,000.00 in order to show a profit.

Appellant also challenges the finding of the Commission that operating economies consistent with the public interest would not result from the closing of the station. It is admitted that the only economy would be the elimination of the direct cost of the station operation. The Commission made specific findings: that the closest agency stations would be at Howe, Oklahoma, a distance of 29 miles, and Booneville, Arkansas, a distance of 25 miles; that patrons who receive shipments would be required to post bond for expeditious unloading of cars delivered to Mansfield pending payment and surrender of bills of lading; that .passengers on trains would have to pay fares to conductors on the trains rather than purchase tickets from the station agent; that the operators of the proposed cattle feed lot would be seriously hampered. Evidence adduced by appellant substantiated the first three; findings. There was testimony on behalf of the protestants tending to substantiate the fourth finding. Testimony of appellant’s witnesses also shows that the two passenger trains stopping at Mansfield (both at night.) will bp continued; that as long as passengers boarded the train at the station at night, the railroad needed someone there to see that passengers boarding the trains are not bothered; that freight shippers would have to call long distance (at the expense of the railroad) to Booneville for bills of lading, but the bills would be forwarded to the agent by mail, executed by him and returned to the shipper by mail; that railway express would -no longer be handled through the railroad station; that passengers on interlined tickets would have to call the agent at Booneville and pick up their tickets, or have them mailed to them if there was time, board the trains at either Howe or Booneville, or purchase tickets at the stations in Little Rock or Memphis; that a lumber company in Mansfield had not been solicited for freight; 'that commencing in the month of April 1965 there was an increase in' carload shipments due to the commencement of shipment of wood chips; that there had been an increase in business over the period of 15 to 18 months that the station agent’s work hours had been at night instead of day.

On behalf of protestants, it was further shown: that there was no rail service between Mansfield and Fort Smith, 30 highway miles away; that Mansfield was totally dependent upon the Rock Island for rail service; that Williams Feed Company had increased the number of freight cars delivered to it from 2 to 38 from 1964 to 1966; and that a chamber of commerce had been recently organized for the purpose of inducing industry to come to the Mansfield area.

While there is no doubt that the railroad would effect operating economies by closing the station, we cannot say that the Commission’s findings that these economies would not be consistent with public convenience and necessity in keeping with § 73-809 are clearly against the preponderance of the evidence.

It is notable that the indirect operating costs allocated to the Mansfield system would continue and supposedly be allocated to the remaining stations. While appellant argues that the effect of this'particular closing on the ratio to be applied to these other stations would be insignificant, it is possible that shifts resulting-from a station closing such as this could produce a chain reaction having a “falling domino” effect on station closings. Thus, the importance of the legislative requirement that public convenience and necessity be considered in these matters is emphasized.

The judgment is affirmed.


author: J. Fred Jokes, Justice. Paul Ward, Justice.

text:
    Thelma Jean McCUISTON v. Donnie ROLLMAN
    5-4376
    420 S. W. 2d 925
    Opinion delivered December 4, 1967

      Thompson & Thompson, for appellant.

      Little & Enfield, for appellee. .
   J. Fred Jokes, Justice.

In August 1961, Paul CL Rollman died intestate in Bent oh County, Arkansas, leaving as his sole surviving heirs a daughter who is the appellant here, and a son who' is the appellee. The decedent’s estate was probated and appellee was appointed personal representative. The listed assets in the probate proceeding consisted of cash in banks, savings bonds, an automobile, a pickup truck, livestock and farm equipment. Distribution was made under a family settlement agreement whereby cash, bonds, and the automobile were distributed to appellant, and the remainder of the designated personal property, of approximately equal appraised value, was distributed to the appellee. A farm consisting of 230 acres was not listed as an asset of the estate, and was not mentioned -in the probate proceedings under the family settlement agreement.

In March 1963, approximately ten months after probation of the estate was closed, the appellant, for the recited consideration of One...Dollar and other valuable consideration, 'executed a quitclaim deed transferring to appellee and to his heirs and assigns forever, the described farm land. This deed contained a recitation that the grantor and grantee were the sole and only surviving heirs of Paul C. Rollman. In April 1964, ap-pellee executed, for the recited consideration of One Dollar and other good and valuable consideration, a warranty deed conveying an undivided one-half interest in the land to appellant, this deed contained a clause as follows:

“It is the sole cmd only purpose and intention of the grantors and the grantee in this deed to affect the title to the above described land in such manner that the grantors will not have any power to mortgage, sell, or otherwise convey said land or any part thereof without the approval and consent of the grantee.” (Emphasis supplied).

In August 1966, appellee brought this action alleging that the warranty deed given by him to appellant conveyed no rights in the property to appellant and was without consideration and void. Appellee prayed a declaratory judgment voiding the warranty deed for indefiniteness and for lack of consideration, and prayed that the deed be removed from appellee’s title as a cloud thereon.

Appellant answered with a general denial and with counterclaim for the $2,325.00 balance owed on a $2,-500.00 loan she made to appellee in June 1962. The chancellor found the warranty deed void and removed it as a cloud on appellee’s title, and gave appellant judgment for $2,325.00 against appellee. On her appeal to this court, appellant designated the following two points for reversal:

“1. The Chancellor erred in holding the Warranty Deed from Appellee to Appellant invalid and failing to give effect to it.
“2. The Chancellor erred in decreeing that the entire ownership of the involved property lay with Appellee and based the finding on the Quitclaim Deed from Appellant to Appellee.”

Appellant testified that she executed the quitclaim deed to appellant to keep him out of the Army and not as a part of the property settlement as contended by appellee. The appellee testified that he executed the warranty deed to appellant in order to defeat property rights his wife might have in the property in the event of an anticipated divorce. The avowed purpose of either party in the execution of the deeds finds no sympathy in equity, and neither would have been entitled to invoke the assistance of a court of equity in carrying out the avowed purposes in the execution of either deed.

As to the purpose of the quitclaim, deed, the evidence is in conflict. This deed isvyalid on its face and no fraud is evident in connection with its execution. The chancellor was also the prohate judge who approved the property settlement agreement, and we are unable to say that his decree that the quitclaim deed transferred good title is against the preponderance of the evidence.

In the case of Luther v. Patman, 200 Ark. 853, 141 S. W. 2d 42, this court said:

“We think a restatement of the law found in § 237, 16 American Jurisprudence, at bottom p. 570, is a correct general declaration of the law of the construction of deeds. Said § 237 is as follows:
“The modern and now widely accepted rule to determine the estate conveyed by a deed with inconsistent clauses has for its cardinal principle the proposition that if the intention of the parties is apparent from examination of the deed ‘from its four corners’ without regard to its technical and formal divisions, it will be given effect even though, in doing so, technical rules of construction will he violated. ” , _

The above quotation states the rule long adhered to by this court. See Osborne v. Clarkson, Ex’x, 237 Ark. 219, 372 S. W. 2d 622; Carter Oil Co. v. Weil, 209 Ark. 653, 192. S. W. 2d 215.

In applying the above principles to the case at bar, the conclusion is irresistible that the warranty deed in question is void. This deed, on its face, shows that there was no intent to convey title, but -the sole and only purpose and intent was to prevent appellee from disposing of the property without appellant’s consent.

The appellant contends that the deed was meant to reconvey to her an undivided ope-half interest in the property and also served as a first option to purchase appellee’s undivided one-half interest if, and when, he should decide to sell. Appellant’s contention is totally inconsistent with the plain language of the deed. The-testimony of both parties indicates that the sole purpose and intent in the execution of this deed was to do exactly what the deed purports to do, place a cloud on the title of the property described in the deed. We agree with the chancellor that the deed is void for lack of intent to convey any interest in the land and was only meant, to place a cloud on appellee’s title.

Appellant also contends that even if the warranty deed is void, appellee has failed to show a consideration for the quitclaim deed given by appellant to the appellee. Appellant testified that she executed the quitclaim deed in order to aid appellee in avoiding service in the armed forces and that no money changed hands in connection with the transaction. This deed recited consideration of “one dollar and other valuable consideration to us in hand paid” and the deed is good on its face. No fraud is alleged or proven in connection with the execution of the deed and since the deed was a present grant rather than a promise to he performed in the future, no consideration was necessary to the validity of the deed. (Ferguson v. Haynes, 224 Ark. 342, 273 S. W. 2d 23; Cannon v. Owens, 224 Ark. 614, 275 S. W. 2d 445.) The finding of the chancellor that the quitclaim deed is binding as against the appellant is not aganst the preponderance of the evidence.

The question was raised at the trial of this case as to whether the farm real estate was considered as part of the family settlement agreement in the course of the administration of the estate, or whether a deed to the farm was “delivered” to appellee by the deceased prior to his death. This question was rendered moot on both points by the validity of the quitclaim deed, and the invalidity of the warranty deed. The decree of the chancellor is affirmed.

Affirmed.

Harris, C. J., Ward and FoglemaN, JJ., dissent.

Paul Ward, Justice.

For reasons hereafter set out, I cannot agree with the majority opinion relative to the portion discussed herein. The material facts will he summarized.

Appellant is a sister to appellee. On March 26, 1963 appellant, for “One Dollar and other valuable consideration” executed to her brother a Quitclaim Deed conveying her entire interest in 230 acres of land. The majority hold the consideration sufficient even though appellant testfied she made the conveyance to keep her brother out of the army.

On April 23, 1964 appellee executed and delivered to his sister, by Warranty Deed, am, undivided one-half interest in the same 230 acres. The expressed consideration in both deeds were exactly the same. The majority holds this Warranty Deed to be void — giving the sister nothing.

The sole reason for the majority holding is based on a “clause” in the Warranty Deed, which clause is copied at page two of the opinion.

The majority cite and rely on three decisions of this Court for holding the Warranty Deed “void”. They say, on page four, “This deed, on its face shows that there was no intent to convey title ...” even though the deed itself contains these words signed by appellee: “. . . do hereby grant, bargain and sell” unto appellant; “We will forever warrant and defend the title ...”

The cases referred to above and relied on by the majority are no authority to hold the Warranty Deed absolutely void, but they, and many other cases, are authority for construing and modifying the deed. To the same effect are: Brawley v. Copeland, 106 Ark. 256, 153 S. W. 101; Mason v. Jackson, 194 Ark. 236, 106 S. W. 2d 610; Jenkins v. Ellis, 111 Ark. 220, 163 S. W. 524; Jackson v. Lady, 140 Ark. 512, 216 S. W. 505; Coffelt v. Decatur School Dist. No. 17, 212 Ark. 743, 208 S. W. 2d 1, and Chicago Rock Island & Pacific Railroad Company v. Olsen et al, 222 Ark. 828, 262 S. W. 2d 882. In the Jenkins case, supra, and the Jackson case, supra, (and in many other cases) the rule is clearly stated that deeds are most strongly construed against the grantor and in favor of the grantee.

The result reached by the majority is, in my judgment, not only judicially unsound but it is illogical and unjust. Illogical, because, if appellee didn’t intent to convey anything to his sister, he must have known she could not prevent him from selling his own land. Unjust, because it lets appellee take advantage of his own selfish scheme.

It is, therefore, my opinion that the deed here in question (concededly being executed for sufficient consideration) can be, and should be, construed — not held to be void.

Johít A. FoglemaN, Justice, dissenting. As I view this case, appellee Rollman invoked the jurisdiction of the chancery court for a declaratory judgment that his voluntary deed of April 23,, 1964, to his sister, appellant McCuiston, is void for indefiniteness and for lack of consideration and that she has no interest in the real estate conveyed by reason of said deed. He also asked that the deed be removed from his title as a cloud thereon and for general relief.

Appellant filed an answer which constituted a general denial and asked that the complaint be dismissed. Subsequently, she filed an amendment to her answer in which, she admitted execution of the deed but denied that it was vague and meaningless. She further denied that the deed constituted a cloud on plaintiff’s title and that there was no' consideration for the deed. This pleading contained a counterclaim for money loaned. A judgment, from which no appeal has been taken, was rendered thereon. The prayer in this amendment was that the complaint be dismissed for want of'equity, and for recovery of the money loaned with a lien upon her brother’s “undivided one-half interest.”

The chancellor saw and heard the witnesses and made detailed findings of facts. One of these: was that the primary, if not the sole, reason for the execution of the deed was to prevent the wife of appellee from acquiring some interest or ownership in the property by reason of then impending marital difficulties between appellee and his wife. He further found that the prime, if not the only, reason for the inclusion of the phrase in question was to make it impossible for his wife, under any circumstances, to acquire some proprietary interest in this tract of land. The chancellor was warranted in finding that these facts were undisputed, or virtually so.

Under these circumstances, I do not feel that the appellee is entitled to any relief in a court of equity, even though appellant was a party to the attempted fraud. In McClure v. McClure, 220 Ark. 312, 247 S. W. 2d 466, a chancery court’s decree, setting aside a deed executed for the purpose of defrauding a husband’s creditors on the ground that the wife was a party to the attempted fraud, was reversed. This court said that such a grantor was not permitted to invoke the assistance of equity in setting aside the deed because he did not come into court with clean hands. This court has held that a grantor who was agreeable to perpetrating a fraud on his wife and creditors by execution of a deed was barred by the “clean hands doctrine” from claiming that the deed was intended to be a mortgáge. Marshall v. Marshall, 227 Ark. 582, 300 S. W. 2d 933.

In Fullerton v. Fullerton, 233 Ark. 656, 348 S. W. 2d 689, a husband brought a suit to cancel a certain deed made hy third parties to his former wife during the marriage and to quiet and confirm the title to the real estate thereby conveyed hy him. The husband appealed from a decree of the chancery court holding that the land was the sole and separate property of the former wife. Mr. Fullerton contended that he had left money with his wife in order that she could make the payment of the purchase money when the deed was delivered. Mrs. Fullerton claimed that he insisted that the ■title be put in her name. 'The only reason she could suggest for this was that he had an ex-wife who he thought might sue him for some back alimony and that he probably thought some little girls, under age, that he had gone with might sue him. The chancellor found that the title was placed in Mrs-. Fullerton’s name as a gift from the husband, but the husband sought to overturn this finding because of her testimony that the title was placed in her to permit him to defeat the collection of some potential judgments. This court said that this testimony could not benefit him because a husband who conveys land to his wife in fraud of creditors is not permitted to invoke the assistance of equity in setting aside the deed since he does not come into equity with clean hands.

I do not see how this court can justify the granting of equitable relief to appellee.

Because of this view, I see no purpose in discussing the effect of the earlier quitclaim .deed from appellant to appellee. I agree with the chancellor that this is not really important to the decisive issues in the case. He stated that he mentioned it only as a matter of interest because it came up in the evidence. It is notable that the quitclaim deed is not mentioned in the court’s decree, although there is a finding that appellee is the owner of the land. Although I do not feel that this question is actually in issue, there is sufficient evidence sustaining validity of the quitclaim deed that we could not say that the court’s findings were against the preponderance of the evidence. I would reverse and dismiss.

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


author: Conley Bybd, Justice.

text:
    Manuel E. NALL v. Mrs. Virgie C. McDONALD
    5-4403
    420 S. W. 2d 827
    Opinion delivered December 4, 1967

      John L. Hughes and Ben McCray, for appellant.

      James C. Cole and Bridges, Young & Mathews, for appellee.
   Conley Bybd, Justice.

Appellant, Manuel E. Nall, appeals from a directed verdict in favor of Mrs. Virgie C. McDonald. The issue is whether- there is any substantial evidence to show that Mrs. McDonald was the driver of the automobile that collided head-on with appellant’s automobile on his side of the road.

Two witnesses, Jesse Jones and Chester Newman Williams, in addition to Nall himself, testified on behalf of appellant. Nall testified that on his way out of Sheridan, as he crested a hill, he saw a farm tractor pulling piggy-hack another farm tractor, headed in the opposite direction; that the tractors had two wheels on and two off the pavement; and that just as he passed the tractors he saw an automobile, following the tractor, cross to his side of the road. Since he was knocked unconscious, he does not remember anything else that happened at the scene of the accident.

Chester Newman Williams testified that he was driving, one tractor and pulling piggy-back the other tractor; that he did not see the collision but heard the impact; and that after parking the tractors he went back to the scene of the accident and found Mr. Nall still in his car and the McDonalds lying side by side in a ditch.

Jesse Jones, a member of the State Police, deter7 mined that the McDonald car was traveling behind the tractors; that following the McDonald car were two other vehicles — one being driven by Philander Green and the other being driven by Anderson Thomas; and that according to the debris and physical damages, the Thomas car collided with the Green car, the Green car collided with the McDonald car, and the McDonald car careened across the road into the path of Nall’s vehicle.

It will be observed that no witness identfied Mrs. Virgie C. McDonald as being either the owner or the drivei; of any of the vehicles involved in the collisions. Under these' circumstances we hold that the trial court properly directed a verdict in favor of Mrs. McDonald.

Affirmed.