text:
    Van Martin RICHIE v. STATE of Arkansas
    CR 76-191
    545 S.W. 2d 638
    Opinion delivered January 31, 1977

      Harold L. Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appelleee.
   John A. Fogleman, Justice.

Appellant was found guilty of the charge of felonious possession of stolen property of a value in excess of $35 in violation of Ark. Stat. Ann. § 41-3938 (Repl. 1964) and sentenced to serve a term of 21 years in the State Penitentiary. He asserts and we agree that the trial court erred in giving the jury the state’s requested instruction No. 2 over appellant’s objection because the instruction included only the felony definition of the statute and omitted from the jury’s consideration the lesser included offense of misdemeanor possession of stolen property of a value of less than $35. He argues that failure to so instruct was error because the question of value of the allegedly stolen item was for the jury.

The property was described as a .380 Astra handgun. Evidence of value was given by the state’s expert witness, who described its appearance as “despicable looking, and it is dark and discolored and the grips are cracked, it is a gun that is desirable by the military collectors because it was a gun that was used by the German Army.” He stated that the weapon was made in Spain and sold to the Germans between 1941 and 1945. He estimated its value as between $40 and $50. Another witness for the state identified the gun as being his property and testified that he purchased the weapon three or four years ago for $90 or $95. He stated that the markings on the barrel were caused when he tried to take the barrel off with a pair of wire pliers. He testified that the grip of the handgun was held together by one screw, that the “bluing was messed up on it” and that it was sort of rusty.

Evidence of value of stolen goods was important in Higginbotham v. State, 260 Ark. 433, 541 S.W. 2d 303 (1976), which involved the question whether the jury should have been instructed on the lesser included offense of petit larceny. In that opinion we discussed the important considerations to be used in determining when the jury should be so instructed. We stated:

When the evidence shows conclusively that the value of the stolen property exceeds $35, as in the theft of more than that amount in cash or of property worth a great deal more, such as a new automobile, the lesser offense obviously need not be submitted. At the other extreme, when there are conflicting estimates of value both above and below $35, the lesser offense obviously must be submitted. Neither extreme is presented here.

The same is true in the case at bar, but unlike the Higginbotham case, the jury could reasonably find that the value of the gun was less than $35 because the mini num value expressed by the expert witness ($40) was so close to the minimum value for felonious possession of stolen property ($35), State v. Enochs, 339 Mo. 953, 98 S.W. 2d 685 (1936), cited in Higginbotham v. State, supra, and because of the admitted disreputable appearance of the weapon. The jury had a right to accept such portions of the testimony as it believed to be true and to reject that it believed to be false, Pickett v. State, 91 Ark. 570, 121 S.W. 732.

Because the jury, in finding the appellant guilty of felony possession of stolen property, must necessarily have found him guilty of misdemeanor possession of stolen property, the error in failing to instruct on the lesser included offense may be cured by remanding this cause for a new trial, unless the Attorney General, within 17 days, elects that the judgment be modified so as to sentence the appellant for the violation of the lesser offense. If he so elects the sentence is reduced to the maximum sentence of one year in the county prison or the municipal or city jail and a fine of $300.

We agree. Harris, C.J., and Roy and Hickman, JJ.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    Floyd SMITH, Employee, v. RICELAND FOODS, Employer, and LIBERTY MUTUAL INSURANCE COMPANY, Insurance Carrier
    76-226
    545 S.W. 2d 604
    Opinion delivered January 31, 1977
    In Banc

      E. L. Schieffler and Harvey L. Tates, for appellant.

      Rieves, Rieves & Shelton, for appellees.
   Conley Byrd, Justice.

The Workmen’s Compensation Commission in denying total disability benefits to appellant Floyd Smith made the following findings of fact:

“The claimant indeed appears to be totally disabled, however, based upon Dr. Faulkner’s testimony, it is our opinion that this disability is the direct result of the various hernias that the claimant has experienced, the subsequent repairs thereto and the susceptibility to further type hernia.”

The record shows that appellant has had five hernias while in the employment of appellee, Riceland Foods, and that the employer has paid the workmen’s compensation benefits and furnished the necessary medical expense for each hernia. There is no contention that the last hernia was not properly repaired — in fact the medical proof shows that it was.

The Workmen’s Compensation Law, Ark. Stat. Ann. § 81-1313(e) (Repl. 1976) in so far as here applicable provides:

“In every case of hernia it shall be the duty of the employer forthwith to provide the necessary and proper medical, surgical and hospital care and attention to effectuate a cure by radical operation of the hernia, to pay all reasonable expenses in connection therewith, and, in addition, to pay compensation not exceeding a period of twenty-six (26) weeks. In case the employee shall refuse to permit such operation, it shall be the duty of the employer to provide all necessary first aid, medical and hospital care and service, and to supply the proper and necessary truss or other mechanical appliance to enable the employee to resume work, to pay all reasonable expenses in connection therewith, and, in addition, to pay compensation not exceeding a period of thirteen (13) weeks. In case death results within a period of one (1) year, either from the hernia or from the radical operation thereof, compensation shall be paid the dependents as provided in other death cases under this Act [§§81-1301 — 81-1349], Recurrence of the hernia following radical operation thereof shall be considered a separate hernia and the provisions and limitations regarding the original hernia shall apply.”

Based upon the foregoing record, the circuit court affirmed the commission and for reversal the appellant here contends that since he is totally disabled his benefits should not be limited by the hernia provision in Ark. Stat. Ann. § 81-1313 (e) (Repl. 1976), and that if Ark. Stat. Ann. § 81-1313 (e) (Repl. 1976) does limit his benefits then it is unconstitutional under Art. 2 § 18 of the Constitution of Arkansas and Amendment 14 to the United States Constitution.

POINT I. Appellant here asks that we apply our decision in McNeely v. Clem Mill and Gin Company, 241 Ark. 498, 409 S.W. 2d 502 (1966), to award total disability in accordance with Ark. Stat. Ann. § 81-1313(a) (Repl. 1976), which provides:

“In case of total disability there shall be paid to the injured employee during the continuance of such total disability sixty-six and two-thirds per cent (66 2/3%) of his average weekly wage. Loss of both hands, or both arms, or both legs, or both eyes, or of any two [2] thereof shall, in the absence of clear and convincing proof to the contrary, constitute permanent total disability. In all other cases, permanent total disability shall be determined in accordance with the facts.”

In the McNeely case we held that where a scheduled injury under subsection (c) of Section 81-1313 resulted in a total disability then the claimant was entitled to the greater benefit set forth in subsection (a) for total disability even though in the absence of a total disability the smaller limits in subsection (c) would be applied. We do not believe that the proof in this case is sufficient to bring appellant under the doctrine of the McNeely case — i.e. the medical proof shows that he had good results from his hernia operation and that his total disability results from his susceptibility to the recurrence of hernia. Furthermore, as pointed out in Jobe v. Capitol Products, 230 Ark. 1, 320 S.W. 2d 634 (1959), that disability which arises from an inherent weakness of the fascia does not entitle one to benefits under the terms of subsection (e) supra.

POINT II. Here appellant argues that to deny him benefits under the hernia subsection instead of allowing the benefits under the total disability subsection creates an unreasonable classification that is void under the equal protection clauses of the Constitutions of the United States and Arkansas. We find this contention without merit for the reasons set forth in Corbitt v. Mohawk Rubber Co., 256 Ark. 932, 511 S.W. 2d 184 (1974).

Affirmed.


text:
    Jimmy Roy JOHNSON v. STATE of Arkansas
    CR 76-170
    545 S.W. 2d 649
    Opinion delivered January 31, 1977
    (Division I)

      Claude E. Lynch, Jr., for appellant.

      Jim Guy Tucker, Atty. Gen., by: Joseph H. Purvis, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

From a jury verdict finding appellant Jimmy Roy Johnson guilty of selling a controlled substance (marijuana) and fixing the penalty at 8 years and a fine of $10,000 comes this appeal raising the issues hereinafter discussed.

POINT I. Appellant contends that the penalty provisions of Ark. Stat. Ann. § 82-2617 (a) (1) (ii) (Supp. 1975) and of Ark. Stat. Ann. § 82-2618 (a) (2) (Supp. 1975) are in irreconcilable conflict because the former makes selling and distribution of marijuana a felony while the latter makes it a misdemeanor. Therefore, under the rule that penal laws are to be strictly construed in favor of the defendant, appellant contends that he was entitled to have the conflict resolved in his favor — thus reducing the penalty imposed to the misdemeanor proscribed in Section 82-2618 (a) (2), supra. In making his contentions that the two sections are in irreconcilable conflict and that we should apply the rule of strict construction in favor of the defendant in criminal cases, appellant overlooks other rules of construction such as that set out in Morrison v. State, 40 Ark. 448 (1883), where we said:

“It is an established rule in construing statutes that all acts passed upon the same subject, or in pari materia, must be taken and construed together, and made to stand, if capable of being reconciled; ... If any of their provisions are in irreconcilable conflict the provisions which are the latest expressions of the legislative will must prevail.”

In connection with the rule that the latest expression of the legislative will must prevail, we note that Ark. Stat. Ann. § 82-2617 (a) (1) (ii), supra, was amended by Acts 1973, No. 186 to specifically provide that a delivery of marijuana would constitute a felony and since that is the latest expression of the legislative will it should supersede any conflict between the two provisions. See Patty v. State, 260 Ark. 539, 542 S.W. 2d 494 (1976).

POINT II. Appellant here contends that the trial court erred in allowing the State to strike a juror that had previously been accepted by both the State and the defense. The record shows that the juror had attended high school with the defendant and was an in-law of defendant’s attorney. Furthermore, the record shows that the State had somewhat reluctantly accepted the juror at first in a good faith effort to get a jury from the existing panel and that the tardy request to strike came after it was apparent that additional prospective jurors had been called. Under the circumstances, we cannot say that the trial court abused its discretion in permitting the tardy strike by the State. See Ark. Stat. Ann. § 43-1914 (Repl. 1964).

POINT III. Appellant here contends that he was entitled to a mistrial because of some leading questions of the State upon redirect of the undercover policeman. The record shows that when the State started making leading inquiries, appellant at first objected generally. At that point the objection was overruled by the court who explained that appellant had opened up the subject. Thereafter, in connection with an objection that the State was leading the witness, the court did sustain an objection. Finally, the court instructed the jury to disregard all of the testimony relative to the search of appellant’s home. Under the circumstances and as against the objections made, we cannot say that on the record before us, the trial court erred in failing to grant a mistrial. As has often been pointed out, a mistrial is a rather drastic measure and one in which a trial court has a wide latitude of discretion.

Finally, appellant asserts that he should have been permitted to call the sheriff to rebut the testimony elicited by the State through leading questions. However, in view of the fact that the trial court struck all such evidence, we cannot say that error was committed in the refusal to permit appellant to rebut that which the jury was told to disregard.

POINT IV. Appellant here lists a number of occasions in which he contends that the trial court erred in allowing the State to ask leading questions. We have noted in a number of decisions that the existence of a leading question in a trial record does not necessarily indicate prejudicial error and that some utilization of leading questions is within the discretion of the trial court. See West v. State, 209 Ark. 691, 192 S.W. 2d 135 (1946). On the record before us we cannot say that the trial court abused its discretion in the matter.

Affirmed

We agree: Harris, C.J., and George Rose Smith and Holt, JJ.


author: Frank Holt, Justice.

text:
    CITY OF NORTH LITTLE ROCK v. Monte MONTGOMERY
    76-229
    546 S.W. 2d 154
    Opinion delivered January 31, 1977
    (Division I)

      Sam Hilburn, City Atty., for appellant.

      Hugh F. Spinks, Jr., for appellee.
   Frank Holt, Justice.

Appellee was indefinitely suspended without pay by the chief of police from his position as a sergeant with the North Little Rock Police Department pending an investigation into certain criminal offenses involving appellee. The commission upheld the appellee’s suspension and he appealed to the circuit court seeking to recover his loss of wages from the date of his suspension until his resignation approximately eleven months later. The record before us does not reflect the ultimate disposition of the investigation. The court limited the appellee’s suspension to thirty days without pay on the basis that Ark. Stat. Ann. § 19-1603 (Repl. 1968) prohibits a suspension without pay in excess of that time period. The court then rendered judgment for appellee in the amount of his back pay less the offsets from appellee’s pay during his thirty day suspension and his outside earnings during the entire suspension. For reversal appellant contends that the court erred in its interpretation of the statute. It is argued that the statute should be “liberally” construed to permit a longer suspension than thirty days “where exigent circumstances so demand,” and, further, the commission’s power to discharge an employee impliedly gives it the incidental power to suspend for more than thirty days.

§ 19-1603 provides:
Rules and regulations. — The Board of Civil Service Commissioners herein provided shall prescribe, amend and enforce rules and regulations governing the fire and police departments of their respective cities, and said rules and regulations shall have the same force and effect of law. ****
These rules shall provide: ****
10th. For suspension for not longer than 30 days ****
The Commission shall adopt such rules not inconsistent with the act for the necessary enforcement of the act.

It appears that the appellart’s Civil Service and Police Department Rules also expressly limit a suspension of an officer or fireman to a definite period of thirty days as one form of disciplinary action.

Even so, appellant argues that exigent circumstances existed here since there was a pending invesitgation, in which appellee failed to properly assist and cooperate, with reference to appellee’s alleged criminal misconduct involving burglary and attempted rape. Therefore, a liberal construction of the statute and rules justified the indefinite suspension without pay. Appellant points out that its Civil Service Rules provide that “it shall be the duty of the authorities to take such action as the circumstances may warrant to maintain the standards of effective service.” The Police Department Rules and Regulations are of similar tenor. However, these rules as to Civil Service employees are subject to the restrictions imposed by the legislature. §§ 19-1603 and 19-1604.

We have held that “[T]he meaning of a statute must be determined from the natural and obvious import of the language used by the legislature without resorting to subtle and forced construction for the purpose of limiting or extending the meaning. **** It is our duty to construe a legislative enactment just as it reads.” Black v. Cockrill, Judge, 239 Ark. 367, 389 S.W. 2d 881 (1965). We have also said “[I]n construing statutes in the absence of any indication of a different legislative intent, we give words their ordinary and usually accepted meaning in common language.” Phillips Petroleum v. Heath, 254 Ark. 847, 497 S.W. 2d 30 (1973).

In the case at bar the legislature, in plain and ordinary words, expressly limited a suspension of a policeman or fireman to a period of thirty days and then directed the appellant “[t]o adopt such rules not inconsistent with the act.” Therefore, the trial court was correct in its interpretation of the act. To hold otherwise would be contrary to the obvious and unambiguous intent of the legislature. That forum and not the courts is the proper place to urge a change in this legislative enactment.

Appellant finally contends that the court’s judgment was a summary judgment which was improper “as there was a genuine issue of material fact in regard to any set-off due to the city.” We cannot agree. The trial court awarded appellee judgment for the wages lost during the entire suspension period less the outside income he had earned and the sum of his salary for one month. The latter amount represents the thirty day suspension which was found to be justified by the court. See Ark. Stat. Ann. § 19-1605.1 (Repl. 1968). In response to appellee’s motion for a summary judgment, appellant replied that the issues of fact in appellee’s affidavit were uncontroverted except as to whether appellee’s indefinite suspension was justified. We have just said, as a matter of law, that the statute forbids it. The appellant made no request for any offset to which it might have been entitled and neither party requested permission to present additional evidence to the court in the de novo proceeding.

Affirmed.

We agree: Harris, C.J., and George Rose Smith, and Byrd, JJ.


author:
Elsijane T. Roy, Justice.
      Elsijane T. Roy, Justice. Conley Byrd, Justice,

text:
    Orba PRENTICE v. L. C. COX
    76-220
    547 S.W. 2d 744
    Opinion delivered January 31, 1977
    (Division II)

      Blankenship & Jarboe, for appellant.

      William B. Howard and Ponder & Lingo, for appellee.
   Elsijane T. Roy, Justice.

In 1973, appellee L. C. Cox, an 80 year old man, had for about three years been living with one of his daughters, appellant Orba Prentice, and two of her children at her home in Illinois. Some years before 1973 both of appellee’s legs had been amputated above the knees because of diabetes. He required regular medication and was confined to a wheel chair.

Appellee told appellant he would deed her 40 acres of his land in Arkansas if appellant would return to live on the farm and care for him during his life. Appellant was reluctant to accept the proposal, but after a few months she told her father she would agree to live on the farm and care for him. He was so pleased he told her he would “just give her 80 acres instead of 40 acres.”

In line with the agreement, in October, 1973, appellee executed and delivered to appellant a deed conveying 80 acres of land with the recited consideration of “One Dollar and love and affection I bear for my daughter.” After selling her home in Illinois, appellant, her youngest children and appellee moved to Arkansas in February, 1974. Thereafter misunderstandings arose between the parties and this action was filed by appellee to set aside the deed for failure of consideration.

The court in its findings, after citing cases, stated:
. . . [T]he plaintiff must establish only by a preponderance of the evidence the failure of the consideration to prevail. * * * (Italics supplied.)
* * * It will be the express holding of this court that the plaintiff must prove its case by a preponderance of the evidence. * * *

The court held appellee had not received that for which he bargained and the deed should be cancelled and title revested in appellee. This appeal is brought from the court’s decree.

Since our cases have not always been clear on the weight of evidence necessary to justify cancellation of a deed, a mistaken interpretation of the law is understandable. However, we find controlling under the facts here the principles enunciated in Bryant v. Bryant, 239 Ark. 61, 387 S.W. 2d 322 (1965), and Baker, Guardian v. Helms, 244 Ark. 29, 423 S.W. 2d 540 (1968). In Baker we pointed out that:

A mere preponderance of the evidence is not sufficient to establish an alleged unperformed agreement on the part of the grantee in a deed to support the grantor where that consideration is not expressed in the deed. Viesey v. Wooten, 220 Ark. 962, 251 S.W. 2d 593; Hammett v. Cannon, 226 Ark. 300, 289 S.W. 2d 683. Evidence to engraft upon a deed a consideration other than that expressed therein must be clear, cogent, and convincing. May v. Alsobrook, 221 Ark. 293, 253 S.W. 2d 29. Evidence to justify the cancellation in equity of a deed properly executed and acknowledged must also be something more than a mere preponderance. It must be clear, strong and conclusive, or clear, cogent and convincing, or clear, unequivocal and decisive. (Citing cases.)

In Bryant we reversed the chancellor’s cancellation of the deed for failure of consideration stating inter alia “. . . the testimony falls far short of establishing by clear, cogent and convincing testimony that the S3,500 was to be used for support of the mother. ...”

Appellee’s testimony seemed to indicate that his main causes of concern were responsibility for repairs on the house, being taken to a doctor against his wishes and later being left several days at his daughter Ellen’s house when he wanted to come home. However, appellee testified that he and appellant would still be living together if she could handle her two sons as she was mighty good about taking him to the doctor and things like that. He also testified he could have taken care of the sons if appellant hadn’t stolen his gun.

After appellant came to Arkansas she and appellee disagreed as to the financial responsibility for making necessary repairs on the house in which they were living. When she asked appellee to help with the repairs he became so violent and threatening that she consulted with his personal physician. She advised her father the physician recommended she take him to a nursing home at Jonesboro for an examination, but her father still did not want to go. However, she thought it was imperative under the circumstances, and it was necessary for her sons to hold his hands while she disarmed him. Her testimony was that after they returned home from Jonesboro the parties lived together happily and uneventfully for about three months until she received the notice to vacate the premises.

After the dispute about repairs one of appellant’s sons did the plumbing work on the house, screen doors were repaired and a new porch and a ramp for appellee’s wheel chair were built, with all materials being paid for by appellant or her sons. At the time of trial appellant testified the only money she had was $100 which had been given to her by her sons since all of her own funds had been expended on the costs of the move, materials for repairs, groceries, etc. Both parties agreed that appellee was to receive the income from the property as long as he lived.

Appellant testified as to how she had taken care of the house and her father in Arkansas the same way she had in Illinois for three years. She did the cooking, house cleaning, washing, ironing, bought the groceries, and took care of her father, including taking him to the doctor and seeing that he received his medication. She had no indication of dissatisfaction until she received the letter demanding that she move. She stated she loved her father and would live there and take care of him as agreed if he would let her.

Appellant’s oldest son, Vern Prentice, Jr., testified he came to the farm in late September of 1974 to help his younger brothers fix up the house for his mother and grandfather, arriving a few days before his mother received the notice to vacate. At appellee’s request he took him to visit his daughter Ellen and was to return in a few hours to bring appellee home. Appellee’s testimony was that Vern did not come back to get him and he thought appellant and “the boys” wanted to get rid of him. But Vern testified he called Ellen on the telephone and she advised him not to return because his grandfather wanted to spend a few days with her. Being unable to foresee the effect of his grandfather’s spending a few days with Ellen while the construction work on the house was going on, he continued working on the house and a few days later his mother received the letter ordering her to move. Shortly thereafter appellee filed this action.

Supplemental Opinion on Denial of Rehearing delivered April 4, 1977

(In Banc)

In her testimony Ellen denied that Vern had called but did admit that after appellee spent about a week with them her husband took appellee to the lawyer’s office to have the letter written to tell Orba to get out of the house. This was acrimonious family litigation, and the trial lasted several days with the testimony in sharp dispute. However, it would serve no useful purpose to elaborate further on the evidence for although the chancellor held appellee’s evidence preponderated this is not sufficient under our cases. We find the evidence did not rise to the required standard of clear, cogent and convincing and the deed should not have been cancelled. Bryant and Baker, supra.

The record having been fully developed the cause is remanded for entry of a decree not inconsistent with this opinion. Since we have reached this conclusion it is not necessary to discuss other allegations of error.

Reversed and remanded.

We agree. Harris, C.J., and Fogleman and Hickman, J.J-

Elsijane T. Roy, Justice.

Amplifying the opinion previously rendered in this case, we examine the complaint in more detail. It alleged no mental incapacity on appellee’s part at the time of execution of the deed, nor was there any allegation of fraud on the part of appellant in securing the deed.

The only ground for cancellation stated in the complaint was failure of consideration, and the only relief requested was a complete cancellation of the deed. The plaintiff prayed that the deed “be cancelled and title to the land described therein be revested in plaintiff. ” Thus the issue here is not the same as in an action for rescission or reformation of a contract.

Appellant, after receiving and recording the Arkansas deed, returned to Illinois, sold her home, paid all moving expenses in returning to Arkansas and invested the money from the equity in her Illinois home in the house located on the Arkansas property. Under these circumstances it is impossible to restore appellant to her original position, and no offer of restitution was made by appellee. It requires evidence which is clear, cogent and convincing to set aside a deed for alleged failure to care for appellant under these facts.

We cited in our original opinion Bryant v. Bryant, 239 Ark. 61, 387 S.W. 2d 322 (1965). Bryant contained a number of supporting cases including Kirkham v. Malone, 232 Ark. 390, 336 S.W. 2d 46 (1960), wherein we stated:

At the outset it must be recognized that the law is firmly established that to justify the setting aside of a deed for failure of consideration, the evidence of such failure must be clear, cogent and convincing. (Citing cases.)

The dissenting opinion cites Woolf v. Madison, 250 Ark. 314, 464 S. W. 2d 74 (1971), as being contra to our position on the weight of evidence necessary to cancel the deed in this case. We do not find Woolf appropos since the trial court refused to cancel the deed and in affirming this Court said “the evidence preponderately” shows grantee abided by the agreement. We do not find this to be support for the position that grantor would be entitled to have cancellation of the deed by a mere preponderance of the evidence.

In Edwards v. Locke, 134 Ark. 80, 203 S.W. 286 (1918), (another case cited in the dissent) the grantor-appellee in the complaint alleged inter alia that she was illiterate and did not understand the contents of the deed and that it had been executed through fraud, misrepresentation, intimidation and duress. She sought cancellation of the contract, the deed and a mortgage which was secured by the land in controversy.

The trial court construed the deed and the written contract together and found both should be cancelled not only because the consideration had failed, but also because appellant had practiced fraud and deceit upon appellee in securing the deed. On appeal we affirmed.

This factual situation is clearly distinguishable from the case at bar, and we reaffirm our position that the facts here necessitated a showing by clear, cogent and convincing evidence that appellant had failed to care for appellee before the deed could be cancelled.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting.

I disagree with the majority’s assertion that it takes clear, cogent and convincing evidence to prove a breach of contract of support when that is the consideration for a deed. While it admittedly takes clear, cogent and convincing evidence to refute the recitation of the consideration and to show that the actual consideration was the support of the grantor, Woolf v. Madison, 250 Ark. 114, 464 S.W. 2d 74 (1971), when that burden has been surmounted, the issue of performance or breach should then be considered in the same context of any other contract whether oral or written. Appellee here clearly sustained the burden of showing the true consideration for the deed — both parties acknowledged that support of the grantor was the consideration but differed as to whether appellee had performed her agreement.

The rationale for cancellation of a deed for support is set forth in Edwards v. Locke, 134 Ark. 80, 203 S.W. 286 (1918), as follows:

“This court is committed to the doctrine, which is supported by the great weight of authority, as announced in 4 R.C.L. p. 509, sec. 22, that: ‘Where a grantor conveys land, and the consideration is an agreement by the grantee to support, maintain, and care for the grantor during the remainder of her or his natural life, and the grantee neglects or refuses to comply with the contract, that the grantor may, in equity, have a decree rescinding the contract and setting aside the deed and reinvesting the grantor with the title to the real estate.’ Salyers v. Smith, 67 Ark. 526-531; Priest v. Murphy, 103 Ark. 464; Whittaker v. Trammell, 86 Ark. 25.
The rationale of the doctrine is that an intentional failure upon the part of the grantee to perform the contract to support, where that is the consideration for a deed, raises the presumption of such fraudulent intention from the inception of the contract and, therefore, vitiates the deed based upon such consideration. Such contracts are in a class peculiar to themselves, and where the grantee intentionally fails to perform the contract, the remedy by cancellation, as for fraud, may be resorted to regardless of any remedy that the grantor may have had also at law.”

In so holding, this Court there took the view that only a preponderance of the evidence was necessary to show a breach and that a formal tender of the restoration of benefits received was not applicable to support cases.

For the reasons stated, I respectfully dissent.

       On January 10, 1977, a stipulation was filed with this Court that L. C. Cox had died and the parties agreed the appeal should stand revived in the name of Emma Snider, executrix.


author: John A. Fogleman, Justice,

text:
    Clance Sidney ALEXANDER v. STATE of Arkansas
    CR 76-133
    545 S.W. 2d 606
    Opinion delivered December 20, 1976
    (In Banc)
    Rehearing denied February 7, 1977
   John A. Fogleman, Justice,

dissenting on denial of petition for rehearing. I would grant the rehearing to the extent of treating the appeal as a petition for certiorari and considering the issue on its merits.

I am authorized to state that Mr. Justice Byrd joins me in this.


author: George Rose Smith, Justice.

text:
    Jean A. HOLMES, Executrix, et al v. RICELAND FOODS, Inc., et al
    76-230
    546 S.W. 2d 414
    Opinion Delivered February 7, 1977
    (In Banc)
    | Rehearing denied March 7, 1977.]

      Cecil B. Nance Jr. of Nance, Nance, Fleming & Wood, for appellants.

      Arthur R. Macom, of Macom, Moorhead & Green, and Julian B. Fogleman, of Hale, Fogleman & Rogers, for appellees.
   George Rose Smith, Justice.

In April, 1971, the appellants, as landlords, rented about 4,000 acres of farmland in Crittenden and Cross counties to Frank and Louis Alpe and Alpe Farms, Inc. The lease, to run for the rest of the calendar year, was for a cash rental of $59,560, payable November 15, 1971. The Alpes were members of Riceland Foods, Inc., an agricultural co-operative. In the fall the crops — rice and soybeans — were sold by the Alpes to Riceland and its affiliated association. Riceland made the purchase-money checks payable to the Alpes and to the Farmers Home Administration, which held a recorded security agreement to secure its advances to the Alpes for making the crop.

The Alpes paid only about $16,000 upon the rent, leaving a deficit of almost $43,000. This suit for that amount was brought by the landowners against the Alpes and also against Riceland, on the theory that Riceland had paid for the crops without making any provision for the satisfaction of the plaintiffs’ statutory landlord’s lien. Ark. Stat. Ann. § 51-201 (Repl. 1971). The chancellor entered judgment against the Alpes, but held that the landlords, by their conduct in prior years, had waived their lien as far as Riceland is concerned.

It is settled, of couse, that if a tenant sells the crop to a purchaser without notice of the landlord’s lien, the buyer takes title free of the lien. Van Etten v. Lesser-Goldman Cotton Co,, 158 Ark. 432, 250 S.W. 338 (1923); Puckett v. Reed, 31 Ark. 131 (1876). Here, however, it cannot be — and indeed is not — seriously contended that Riceland had no notice that the crops had been grown by the Alpes as tenants. Louis Alpe testified that he so informed Riceland. Moreover, attached to the FHA security agreement were waivers by which the various landlords to some extent subordinated their liens to the FHA’s advances. Riceland checked the records every year in June or July to discover liens against its members. Presumably the FHA’s security agreement, with the attached subordination forms, was known to Riceland, as it included FHA in its purchase-money checks. Riceland’s officers testified candidly that they seldom made any inquiry, about landlord’s liens: “That’s really none of our business.” Under our reasoning in Merchants & Planters Bank v. Meyer, 56 Ark. 499, 20 S.W. 406 (1892), Riceland had more than sufficient information to require it to make a reasonable inquiry, which would have disclosed the landlord-tenant relationship.

Riceland argues, however, that the appellants waived their lien. The essential facts are not in dispute. The appellants, two sisters who live in Tennessee, inherited the land. The Alpes were their tenants for some five years, ending in 1971. In 1967 and 1968 no rent was due, as the Alpes cleared land in lieu of paying rent. In 1969 the rent was paid in full. In 1970 all except a small carry-over of about $900 was paid. The fifth year is the one now in issue.

On cross-examination the appellant Jean Holmes, who is an attorney and acted for herself and her sister, testified that she never gave the Alpes any instructions about how, when, or where to sell the crops. She did not ask the Alpes to have the purchase money made payable jointly. She assumed, and can be found to have known, that the crops were being sold to Riceland, but she never gave Riceland any notice of her claim, as landlord. The appellees rely primarily upon Missouri, Mississippi, and Texas cases in arguing that Mrs. Holmes’s conduct had the effect of waiving the lien.

We cannot accept that view. It must be remembered that the Alpes, as tenants renting the land for cash, were the owners of the crops and had the right to sell them. Barnhardt v. State, 169 Ark. 567, 275 S.W. 909 (1925); Robinson v. Kruse, 29 Ark. 575 (1874). In this respect the situation differs from that of a sharecropping arrangement, under which the landowner has the title to the crop and is entitled to market it.

The question naturally arises: What did Mrs. Holmes do in 1969 and 1970 that indicated any intention to waive her lien, either then or in a later year? The Alpes had the absolute right to sell the crops. They did so. They paid the rent. No action on the part of Mrs. Holmes was demanded. No occasion arose (except possibly as to the $900 carryover) that would even have enabled her to assert her lien, much less require her to do so; so what significance can be attached to her conduct? Certainly Riceland was not misled, for its fixed policy was to pay no attention to the possibility that produce brought to it by its members might be subject to a landlord’s lien. There was no burden on Mrs. Holmes to inform possible purchasers in the two counties of her lien. We have said that “one will not be held to have waived a lien unless the intent be express or very plain and clear. The presumption is always against it.” Blackwood v. Farmers Bank & Tr. Co., 200 Ark. 738, 141 S.W. 2d 1 (1940). As we have seen, Riceland was unquestionably on notice that the lien existed. We can find no basis for saying that Riceland was entitled to ignore it.

We do not overlook our holding in Planters Production Credit Assn. v. Bowles, 256 Ark. 1063, 511 S.W. 2d 645 (1974), where we agreed with Iowa and New Mexico decisions to the effect that a credit association’s policy of allowing its members to sell their crops at will waived the association’s security interest. Our holding, however, was immediately set aside by an amendment to the Uniform Commercial Code, Ark. Stat. Ann. § 85-9-306 (2) (Supp. 1975), which decidedly impairs the strength of Planters as a precedent.

Reversed.

FocjLeman, J., not participating.

Harris, C.J., dissents.


author: John A. Fogleman, Justice.

text:
    Ronald Lee KELLEY v. STATE of Arkansas
    CR 76-181
    545 S.W. 2d 919
    Opinion delivered February 7, 1977
    (Division II)

      Harold L. Hall, Public Defender, by: Robert J. Govar, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Dave Greenbaum, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Ronald Lee Kelley was found guilty of the crime of possession of a controlled substance with intent to deliver the substance (marijuana). On appeal, he first contends that the trial court abused its discretion in denying his motion for continuance. He also argues that the trial court erred in denying his motion to suppress certain evidence. We find no reversible error and affirm.

In considering the argument relating to the motion for continuance, it is necessary that we review some of the history of the case. The motion for continuance was not made until the morning of the trial. It was made for the purpose of procuring the attendance of David Hodges, alleged to be a material witness.

The crime was alleged to have been committed on November 22,1975. The information charging appellant with the crime was filed on February 11, 1976. Appellant was arraigned on March 8, 1976. He was represented by the Chief Deputy Public Defender of Pulaski County at that time. His jury trial was then set for May 11, 1976 and was held as set. Appellant was at liberty on bail at the time of his arraignment and until the date of his trial. In the interim, appellant had been cooperating with John Sparks, a detective in the narcotics section of the Arkansas State Police, in buying narcotics, and, on the eve of trial, was working on a transaction that the officer thought would be consummated later the same week.

Appellant had been aware of the trial date from the date of his arraignment. When he informed Sparks of it during the week preceding that date, the officer told him he would attempt to contact the prosecuting attorney and ask for a continuance. Sparks testified that he had been unable to do so until the morning of the trial because he was on assignment out of town. Even though appellant testified that he understood that his trial would be postponed, he also said that he understood that he was supposed to meet someone in the prosecuting attorney’s office on the morning the case was set to take care of the matter, so he could make the planned buy. His anticipation of a successful arrangement was his excuse for not furnishing his .lawyer with the names of witnesses for the trial. In his testimony at the hearing on the motion for new trial, he detailed the testimony he expected Hodges to have given. This testimony would have been material and relevant.

The action of the trial judge in denying a continuance will not be reversed on appeal in the absence of such a clear abuse of the sound judicial discretion of the trial judge as to amount to a denial of justice. Figeroa v. State, 244 Ark. 457, 425 S.W. 2d 516; Thacker v. State, 253 Ark. 864, 489 S.W. 2d 500. The burden rests upon an appellant to show that there has been such an abuse. Freeman v. State, 258 Ark. 496, 527 S.W. 2d 623.

There are several significant factors to be considered in the trial court’s exercise of discretion in the matter of a continuance. Among them are the diligence of the movant, the probable effect of the testimony at the trial, the likelihood of procuring the attendance of the witness in the event of a postponement, and the filing of an affidavit, stating not only what facts the witness would prove, but that appellant believes them to be true, as required by Ark. Stat. Ann. § 27-1403 (Repl. 1962). The denial of a motion which is not in substantial compliance with the statue is not an abuse of discretion. Venable v. State, 260 Ark. 201, 538 S.W. 2d 286 (1976).

Even if we say that appellant’s testimony as to the anticipated testimony of Hodges was substantial compliance with the statutory requirements, there is absolutely no showing that Hodges would probably be available to testify at a later date, or that appellant believed that the facts as to which Hodges would testify to be true. What is more important there is no showing of diligence on the part of appellant. He was represented by counsel for over two months. There is no indication that appellant had suddenly learned of Hodges’ potential testimony on the eve of trial. Had he made his attorney aware of the testimony Hodges might be expected to give, Hodges would have either been present on the date set for trial, or a satisfactory reason for his absence given. Furthermore, such information would have permitted the appellant’s attorney to prepare and file a proper affidavit at a time that would have permitted the state to controvert the statements therein contained, as it had a right to do under the statute. Appellant’s reliance on the intervention of Detective Sparks, who expressly stated that he did not tell appellant that the case would not go to trial and did not indicate that appellant should not bring his witnesses to court on the trial date set, does not excuse his failure to communicate with his attorney. This information should have been passed on to his attorney much earlier than one week before the trial, when Sparks promised to intervene in seeking a postponement in behalf of appellant. We are unable to find any showing of abuse of the trial court’s discretion.

Appellant’s “motion to suppress evidence” related to the seizure of a clothes hamper, 15 cellophane packages containing marijuana and a cardboard box and 27 bags of marijuana. It was not made until after the evidence had been mentioned in the testimony, but before it was exhibited. The sole basis of the motion was that appellant’s arrest was illegal. An in camera hearing held on the motion was upon the probable cause for arrest. The court found that there was probable cause for the arrest “since [the police officers] saw a man walking around with a clothes hamper full of what appeared to be marijuana.” The basic question is whether the officers conducted an unreasonable search in order to see marijuana in appellant’s possession, because there was not probable cause for the arrest if they discovered this fact by a warrantless search.

Members of the narcotics division of the Little Rock Police Department were informed by Trooper Mullineaux of the Arkansas State Police that Kelley was in possession of 50 pounds of marijuana in Room 17 of the Howard Johnson Motor Lodge on South University Avenue in Little Rock. Acting pursuant to this information, which probably was hearsay, Detectives Best, Isom and Mize of the Little Rock Police Department went to the motel and set up surveillance on Room 17, which was located close to the top of the stairs. They stationed themselves in a meeting room next to the registration desk. They saw a pickup truck occupied by a driver and a passenger pull up to the window. The passenger identified himself to the desk clerk as Kelley and asked for the key to Room 17. The truck was then driven to a point near the room. The officers proceeded through the back door of the meeting room, directly facing Room 17. They started walking toward the room and saw Kelley get out of the green truck and go upstairs. They approached the bottom of the stairs and saw Kelley come out of the room with a box which he set down. As the officers started up the stairs, they saw Kelley come out of the room with a yellow clothes basket or hamper containing some plastic packages encasing green vegetable matter, readily visible to the officers, only six to ten feet away, through square openings in the clothes basket, the top of which was covered with a sheet. The officers identified themselves to Kelley, who stepped back and collapsed into a chair, setting the basket on top of the box he had earlier brought out of the room. Best laid back the sheet over the basket and saw the packages that filled the basket. Isom began to advise Kelley of his rights and Best slipped into the open door of the room, which was unruffled as if it had never been occupied. The officer took the basket off the box and lifted the box, finding it to contain “squeeze-lock” bags filled with the same type of vegetable matter. The driver of the pickup truck was identified as David Hodges. Best testified that Kelley was arrested on the basis of what they had seen in the basket. He testified that he had previously seen marijuana on 50 to 75 occasions.

Detective Isom, who had worked for two years as a narcotics investigator, testified that he had seen marijuana approximately 150 times. He said that the material in the clothes basket appeared to be marijuana. As they approached Kelley, Isom said he could clearly see that it could be marijuana, and placed Kelley under arrest. The testimony of the officers was the only evidence on the subject but it is not contradicted.

Appellant argues that the “plain view” doctrine did not justify the arrest and accompanying search, because there were no exigent circumstances to excuse the officers from obtaining a search warrant, in spite of the fact that he simultaneously argues that the information obtained from Trooper Mullineaux was not sufficient probable cause for Kelley’s arrest. The testimony in this record does not reveal sufficient evidence to have justified the issuance of a search warrant prior to the surveillance at the motel. Be that as it may, appellant’s argument is based upon the erroneous premises that the “plain view” doctrine is not applicable in any case unless exigent circumstances justify a warrantless search or seizure and the discovery of evidence in plain view is inadvertant.

The observation of evidence in plain view is not a search, or to say the least, not an unreasonable one. A resulting seizure is not the result of an unreasonable search. Looking at what is in plain view, or not concealed is not a search, as prying into hidden places would be. Edwards v. State, 38 Wis. 2d 332, 156 N.W. 2d 397 (1968); State v. Ashby, 245 S. 2d 225 (Fla. 1971); Alire v. People, 157 Colo. 103, 402 P. 2d 610 (1965). See, Gerard v. State, 237 Ark. 287, 372 S.W. 2d 635. See also, Ker v. California, 374 U.S. 23, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963). The basic test is whether the officer had a right to be in the position he was when the objects seized fell into his plain view. In Harris v. U.S., 390 U.S. 234, 88 S. Ct. 992, 19 L. Ed. 2d 1067, the United States Supreme Court said:

Once the door had lawfully been opened, the registration card, with the name of the robbery victim on it, was plainly visible. It has long been settled, that objects falling in the plain vie .v of an officer who has a right to be in the position to have that view are subject to seizure and may be introduced in evidence. ***

See also, State v. Ashby, supra. It is not an unreasonable search for an officer to move into a position where he has a legal right to be and look for things he may have reason to believe will be seen. State v. Ashby, supra. Cf. Durham v. State, 251 Ark. 164, 471 S.W. 2d 527. Police officers in the performance of their duties may, without violating the constitution, enter into the common hallway of an apartment building or motel without a warrant or express permission to do so. People v. Terry, 77 Cal. Rptr. 460, 454 P. 2d 36 (1969), cert. den. 399 U.S. 911. See also, Edwards v. State, supra. The fact that it may be necessary for an officer to crane his neck, bend over, or squat, etc. in order to see what may thus come into his view, does not render the plain view doctrine inapplicable, if what he saw would have been visible to an equally curious passerby. James v. U.S., 418 F. 2d 1150 (D.C. Ct. App. 1969).

We do not view the discussion of the plain view doctrine in Coolidge v. New Hampshire, 403 U.S. 443, 91 S. Ct. 2022, 29 L. Ed. 2d 564 (1971), relied upon by appellant, to severely limit the doctrine where there is no intrusion by the police officers. Furthermore, the majority opinion in that case emphasizes the fact that contraband was not involved there, citing Ker v. California, supra. Unlike the situation in Coolidge, the officers here did not know they would find marijuana or have any plan to seize it. They were simply engaged in a proper surveillance. And in any event, the seizure here was under exigent circumstances. There is no reasonable doubt that taking the time to obtain a warrant after the officers saw what they did would have permitted the easy removal of the contraband.

In order to constitute probable cause for the arrest and seizure, it was not necessary for the officers to have a chemical analysis made, if from their experience and observation they had reason to believe that the substance viewed by them was marijuana. Alire v. People, 157 Colo. 103.

We find no error in the finding that there was probable cause for appellant’s arrest and in the denial of the motion to suppress.

We agree. Harris, C.J., Roy and Hickman, JJ.

       See Theriault v. U.S., 401 F. 2d 79 (8 Cir., 1968), cert. den. 393 U.S. 1100, 89 S. Ct. 898, 21 L. Ed. 2d 792, reh. den. 394 U.S. 939, 89 S. Ct. 1201, 22 L. Ed. 2d 474; Cox
        v. State, 254 Ark. 1, 491 S.W. 2d 802, cert. den. 414 U.S. 923, 94 S. Ct. 230, 38 L. Ed. 2d 157; Russell v. State, 240 Ark. 97, 398 S.W. 2d 213; Williams v. State, 237 Ark. 569, 375 S.W. 2d 375, appeal dism., cert. den, Turney v. Arkansas, 381 U.S. 276, 85 S. Ct. 1457, 14 L. Ed. 2d 431. CF. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909.

       For a post-Coolidge reiteration of the Harris rule, see United States v. Johnson, 506 F. 2d 674 (8 Cir., 1974), cert. den. 421 U.S. 917, 95 S. Ct. 1579, 43 L. Ed. 2d 784.


text:
    Fred QUICK Jr. v. Tom DAVIDSON, Administrator and Dawn Marie ROLLINS
    76-167
    545 S.W. 2d 917
    Opinion delivered February 7, 1977
    (Division II)

      Wayne R. Foster, for appellant.

      Brown & Fleetwood, by: Jeivel Brown, for appellees.
   Conley Byrd, Justice.

After the administrator had sold the mortgaged real estate and paid the creditors but before there had been a distribution to the heirs, appellant Fred Quick, Jr. as the surviving spouse filed his petition for the assignment of his curtesy rights. The trial court ruled that by waiting until the real estate was sold and the debts paid, appellant had waived his curtesy rights in the real estate, but by treating the balance remaining in the hands of the administrator as personalty, the appellant was awarded one-third thereof absolutely.

Ark. Stat. Ann. § 61-232 (Repl. 1971) provides that the surviving husband’s curtesy rights are the same as that given to the wife by way of dower. Ark. Stat. Ann. § 62-701 (Repl. 1971) places the duty of assignment of dower upon the heir at law. With respect to mortgaged real estate, Ark. Stat. Ann. § 61-210 (Repl. 1971) provides:

“Where a person seized of an estate of inheritance in land, shall have executed a mortgage of such estate before marriage, his widow shall nevertheless be entitled to dower out of the lands mortgaged as against every person, except the mortgagee and those claiming under him.”

The appellant here only claimed curtesy rights of one-third for life in the $12,700.83 net proceeds of the sale of the real estate. His age at the time of the wife’s death was 44 and based upon an annuity factor of 6% his comminuted value of the real estate would amount to $3,121.14. There was a small bank account in which his curtesy rights amounted to $11.43 about which there seems to be no dispute.

To sustain the action of the trial court, appellees Tom Davidson, administrator, and Dawn Marie Rollins, a daughter of the decedent, rely upon Walls v. Phillips, 204 Ark. 365, 162 S.W. 2d 59 (1942) and Wofford v. James, 204 Ark. 700, 163 S.W. 2d 710 (1942). The latter case involved only statutory allowances. The former was an action against an administrator’s bondsmen for monies that had been paid out under orders of the court. Neither case affects the rights between the surviving spouse and heirs at law to undistributed funds.

As we construe the foregoing statutes the duty of allotting dower or curtesy is pláced upon the heir at law. While the filing of the petition for allotment of curtesy may have been tardy as to creditors to whom distribution has been made, we fail to see how such conduct on the part of the surviving spouse could be considered a waiver as against the funds remaining and particularly in favor of one upon whom the law places the duty of allotting dower.

The record shows that one of the creditors was Kansas City Fire & Marine Company, who held a joint judgment of $3,200.12 against both appellant and the decedent arising out of a default by the decedent in her capacity as personal representative of an estate. We agree with appellant that under the circumstances shown, his rights of curtesy were superior to that judgment for purposes of calculating his monetary interest in the proceeds of sale.

Appellant also complains that his rights of curtesy should have been allowed with reference to certain proceeds of a fire insurance policy paid to him and disbursed by him and in an automobile and jewelry that had been delivered to the daughter before the probate proceedings were commenced. Neither party has bothered to abstract the insurance policy nor explained why the proceeds were paid directly to appellant. Under the circumstances, we are unable to say that the proceeds of the fire insurance policy constituted a part of the estate.

With respect to the jewelry and the automobile, we agree with the trial court that the delivery thereof to the daughter appears to have been made in accordance with some understanding as to a family settlement and that appellant having voluntarily delivered them to the daughter for her own personal use and benefit is now estopped to claim his right of curtesy therein.

Accordingly, this matter is being remanded to the trial court with directions to award curtesy rights in the proceeds of the sales of the real estate in the amount of $3,121.14 and the bank account in the amount of $11.43, together with all costs.

Reversed in part with directions.

We agree: Harris, C.J., and Holt and Rov, JJ.


text:
    CIVIL SERVICE COMMISSION of Harrison and CITY OF HARRISON, Arkansas v. George A. REID
    76-235
    546 S.W. 2d 413
    Opinion delivered February 7, 1977
    (Division I)
    [ Rehearing denied March 7, 1977.]

      Philip Meadows and Ball & Mourton, for appellants.

      Donald J. Adams, of Adams & Covington, for appellee.
   Conley Byrd, Justice.

Appellee George A. Reid’s employment as chief of police was terminated by the Civil Service Commission of the City of Harrison. Pursuant to such notice a hearing was held by the Commission which among other things found that “the said George A. Reid did authorize officers of the City Police Department to borrow money from either the city parking meter violation money or bond funds posted with the Police Department.” On appeal to the circuit court, that court found “that the charges against and the reasons for the Commission’s dismissal of Appellant herein are not supported by the evidence, and he should be reinstated as Chief of Police of the City of Harrison, and granted Judgment against the City for a salary from .. . ” the date of discharge. That order was styled in the circuit court as follows:

“George A. Reid Appellant vs. Civil Service Commission of the City of Harrison, Arkansas Appellee”

Thereafter, appellee filed a petition for contempt against the Civil Service Commission and the Mayor of the City of Harrison under the same style. The notice of appeal was carried under the same style and was served by one of the attorneys employed to represent the Commission at the hearing held before it.

To sustain the action of the trial court appellee suggests that appellant has not complied with Supreme Court Rule 9(d) and that the appeal was not taken by the proper party. While we must agree with appellee that the abstract of the record does not literally comply with Supreme Court Rule 9(d), we cannot say that the abstract is so deficient as to call for an affirmance. Neither can we agree with appellee that the appeal was not taken by the proper party. The record shows that the notice of termination to. appellee was given to appellee by the Civil Service Commission apparently pursuant to Article V (5) of its Rules and Regulations. Thus it appears from the record that the Civil Service Commission was at all times the real party in interest in this litigation. As the real party in interest, it was, while acting on behalf of the City, the proper party to give the notice of appeal.

On review in this court from a ruling by the circuit court in an appeal from the Civil Service Commission pursuant to Ark. Stat. Ann. § 19-1605.1 (Repl. 1968), the rule is that we must affirm the trial court if there is any substantial evidence to support the findings thereof.

In reviewing the evidence as to the loaning of money from the parking meter violation fund or the bond fund, numerous officers testified as to its availability to them for purposes of borrowing from it. One officer testified that at one time he owed quite a bit of money and that appellee told him he had to pay it off. Appellee does not deny that the officers were permitted to borrow money. However, he says that the money bag from which the monies could be borrowed consisted of money from the making of copies of accident reports and from the sale of calendars. He says the money was used for different things within the department including the loaning of money to patrolmen who were short that week. In his brief, he asserts that the monies were always repaid and concludes: “While it may not have been the best business practice to co-mingle different funds, this writer fails to see, absent any proof, that APPELLEE willfully or deliberately intended to abscond or embezzle any of these funds that such would justify the extreme penalty here tempting to be imposed.”

In view of the frank admissions on the part of appellee as to the loaning of department funds to the officers, we must hold that the circuit court’s reversal of the Commission’s findings on this issue is not supported by substantial evidence. As to appellee’s contention that the mere loaning of the Police Department’s funds to the officers would not “justify the extreme penalty here tempting to be imposed,” we need only point out that the lending of public funds was prohibited by law, Ark. Stat. Ann. § 41-3920 (Repl. 1964), and that the penalty for violation of that law was confinement in the penitentiary for not less than five (5) years, nor more than twenty-one (21) years, Ark. Stat. Ann. § 41-3922 (Repl. 1964).

It follows that the circuit court erred in directing the Commission to reinstate appellee as chief of police.

Reversed.

We agree: Harris, C.J., and George Rose Smith and Fogleman, JJ.

       See Arkansas Criminal Code § 41-2203 (1976).


text:
    U. S. FIDELITY & GUARANTY CO. v. Patsy Ann GLASS and Everett A. JONES, as Co-Administrators of The Estate of Arlie JONES, Deceased
    76-233
    245 S.W. 2d 924
    Opinion delivered February 7, 1977
    (Division I) .

      Barber, McCaskill, Amsler & Jones, for appellant.

      Tompkins, McKenzie, McRae & Vasser, for appellees.
   Frank Holt, Justice.

Appellant is the workmen’s compensation insurance carrier for Arkansas Louisiana Gas Company whose employee, Charles Lee Allen, was killed by a third party. Appellant paid benefits to the beneficiaries of the decedent. It then filed suit, pursuant to Ark. Stat. Ann. § 81-1340 (b) (Repl. 1976), to recover the amount of those benefits from the estate of Arlie Jones, the person allegedly responsible for Allen’s death. Appellees, co-administrators of Jones’ estate, filed a demurrer which the trial court sustained on the basis that appellant lacked the legal capacity to sue. The court then dismissed appellant’s complaint with prejudice. Appellant asserts that the trial court erred by holding that appellant, as the insurance carrier, could not maintain its subrogation claim without having first “joined” the workmen’s compensation beneficiaries.

Although the workmen’s compensation carrier and the beneficiary have separate rights to institute an action against a third party tortfeasor, there is only one cause of action and it cannot be split without the defendant’s consent. § 81-1340 (b); Amos v. Stroud, 252 Ark. 1100, 482 S.W. 2d 592 (1972); and Winfrey & Carlile v. Nickles, Admr., 223 Ark. 894, 270 S.W. 2d 923 (1954). The rule against splitting a cause of action is for the benefit of the defendant to protect him from a multiplicity of suits. St. Paul Fire & Marine Ins. Co. v. Wood, 242 Ark. 879, 416 S.W. 2d 322 (1967). Here the appellee defendants objected to the splitting of the cause of action and, further, the complaint did not join the workmen’s compensation beneficiaries, who are necessary parties. § 81-1340 (b), supra. Therefore, the court correctly sustained the demurrer.

We must agree, however, with appellant’s contention that the court erred in refusing the appellant the opportunity to amend its complaint following its dismissal. In sustaining the demurrer and dismissing the complaint with prejudice, the court did not make any allowance for appellant to amend its complaint. Neither did the court’s written order, some two weeks later, approved as to form by appellant, make any provision for the right of the appellant to amend its complaint. It is undisputed that during the hearing on the demurrer that appellant’s counsel repeatedly indicated his desire to amend the compalint should the court sustain the demurrer. Ark. Stat. Ann. § 27-1117 (Repl. 1962) provides that if the court sustains a demurrer “the plaintiff may amend **** as the court may order.” Appellant had the right to amend subject to a reasonable time limitation. Temple Cotton Oil Co. v. Davis, 167 Ark. 448, 268 S.W. 38 (1925). See also Dickerson v. Hamby, 96 Ark. 163, 131 S.W. 674 (1910); and Bradley v. Mo. Pac. R.R. Co., 144 Ark. 604, 223 S.W. 35 (1920). Here we hold dismissal of the complaint without reserving the appellant’s right to amend its complaint is contrary to the provisions of the cited statute.

Reversed and remanded for proceedings not inconsistent with this opinion.

We agree: Harris, C.J., and George Rose Smith and Byrd, JJ.


author: Elsijane T. Roy, Justice. Darrell Hickman, Justice,

text:
    Berl HARVEY v. STATE of Arkansas
    CR 76-192
    545 S.W. 2d 913
    Opinion delivered February 7, 1977
    (In Banc)

      Esther M. White, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.
   Elsijane T. Roy, Justice.

Appellant Berl Harvey was found guilty of possession of stolen property and sentenced to eleven years in the State penitentiary. He subsequently filed a motion for a new trial which was overruled.

On appeal appellant first urges that it was error for the trial court to overrule his pre-trial motion to suppress evidence obtained through a search of his home without a warrant. The trial court held appellant had voluntarily consented to the search.

The constitutional propriety of a search of one’s premises effectuated through consent alone, in the absence of any warrant, must be demonstrated from the total circumstances surrounding the giving of that consent. Schneckloth v. Bustamonte, 412 U.S. 218, 93 S. Ct. 2041, 36 L. Ed. 2d 854 (1973). The burden is on the State to prove that consent was unequivocally and specifically given, and the State must make its showing of the sufficiency of the evidence supporting the consent to search by clear and positive proof. Hock v. State, 259 Ark. 67, 531 S.W. 2d 701 (1976).

In the instant case the sheriff testified he was accompanied by a police officer and two investigators, and they made a search of appellant’s premises. The uncontradicted evidence shows that the sheriff first made the identities of the parties known and then informed appellant they had come to pick up a chain saw which was allegedly part of the stolen property. Appellant, after first being advised that he did not have to consent to the search of the premises, signed a typed “Consent to Search” form. The form had been read to appellant by the sheriff and both appellant and his wife examined the form before it was signed. There was no evidence of duress, force or coercion on the part of the officers. Appellant voluntarily took the sheriff over the premises. Appellant then told the sheriff that most of the goods were in the trailer, and appellant unlocked the trailer with his key.

When these factors are viewed in their entirety we find the evidence is more than sufficient to support the trial court’s conclusion that the State sustained its burden of proving the voluntary nature of appellant’s consent by clear and positive evidence.

The second contention by appellant is that certain testimony by one of his witnesses was erroneously stricken from the record. The evidence excluded consisted of the testimony of Homer Bynum, a resident of Siloam Springs and long-time friend and business acquaintance of appellant, that appellant’s reputation for trüth and veracity in the community was good. However, on cross-examination he stated he was speaking from his own personal feelings, that he had not talked to any of appellant’s neighbors in Fayetteville, and that he did not have “the foggiest idea” of what went on there in connection with appellant.

In Henson v. State, 239 Ark. 727, 393 S.W. 2d 856 (1965), quoting 20 Am. Jur. 2d Evidence § 326, we noted that character evidence “must relate and be confined to the general reputation which such person sustains in the community or neighborhood in which he lives or has lived.” The evidence developed at trial clearly established the character witness did not know appellant’s business or personal reputation in Fayetteville, the community in which appellant lived. Furthermore, it was not shown that appellant had established any reputation, business or otherwise, in Siloam Springs, the community in which the witness lived.

Although under certain circumstances the rule regarding reputation in the community may permissibly embrace a larger geographic area than the domicile of the accused, there was no such showing made here. Trial courts are vested with broad discretionary powers in determining whether a witness is competent to testify, and their decisions on the matter are not ordinarily reviewable on appeal unless so clearly in error as to constitute an abuse of that discretion. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974), and Gordon v. State, 259 Ark. 134, 529 S.W. 2d 330 (1976). We find no abuse of discretion here.

Filially, appellant contends the trial court erred in overruling his motion for a new trial. The rule for segregating witnesses had been invoked pursuant to Ark. Stat. Ann. § 43-2021 (Repl. 1964). Appellant alleged the “spirit of the rule” had been violated by one of the witnesses who had been seen talking to a spectator at recess during the trial. At the hearing on the motion the most that was established was that the two were seen talking together. No clear or substantial evidence was presented as to the subject of their conversation.

We have always recognized the court’s wide latitude of discretion in granting or denying a motion for a new trial and hold that a judge’s action will not be reversed in the absence of an abuse of that discretion or manifest prejudice to the complaining party. Black v. State, 215 Ark. 618, 222 S.W. 2d 816 (1949); and Cross v. State, 242 Ark. 142, 412 S.W. 2d 279 (1967). Nothing appears in the record to warrant overturning the court’s refusal to grant a new trial.

Finding no reversible error, the judgment is affirmed.

Byrd and Hickman, JJ., dissent.

Darrell Hickman, Justice,

dissenting.

Berl Harvey of Fayetteville was convicted of possession of stolen property and received a sentence of eleven years in the penitentiary.

During the trial a prominent banker from nearby Siloam Springs, Arkansas was called as a character witness for Harvey. The banker testified that he had known Harvey for twenty-five years, known of him for thirty-nine years, and that his reputation for truth and veracity was good. The trial court excluded this testimony because the banker did not know the reputation of Harvey in the “community” of Fayetteville. Counsel for Harvey objected to the ruling of the court with the argument that interpreting “community” as the geographical limits of Fayetteville was too strict; that an individual who is associated with the defendant should be allowed to testify as to a person’s reputation — although they do not know that reputation in the neighborhood or place where the defendant lives.

The lower court and the majority of this court have applied a rule of evidence, which has been used by the courts in Arkansas since the case of Kee vs. State, 28 Ark. 155 (1873). That rule is that a witness can testify about the good reputation of a defendant, for telling the truth, in the neighborhood or community where the defendant resides.

This court has followed that rule consistently, without deviation or expansion since the Kee case.

In other words, a person can have only one reputation and that reputation must be in the neighborhood or community where the person lives. It cannot be a reputation that has been established among associates, friends or fellow workers at a distant place.

This rule has been criticized in legal circles because the reasons for the rule no longer exist. That is, “neighborhood” or “community” is too restrictive in terms of life today. People live in one place and work in another. In Wigmore On Evidence, Vol. V, § 1616, 591, 592, the author explains why such a strict rule should not be followed today.

There may be distinct circles of persons, each circle having no relation to the other, and yet each having a reputation based on constant and intimate personal observation of the man.
There is every reason why the law should recognize this. Time has produced new conditions for reputations. The traditional requirement about “neighborhood” reputation was appropriate to the conditions of the time; but it should not be taken as imposing arbitrary limitations not appropriate in other times. . . . What the law, then as now, desired was a trustworthy reputation; if that is to be found among a circle of persons other than the circle of dwellers about a sleeping-place, it should be received.
The modern judicial rulings on this class of questions show frequently a perverse defiance of common sense. “The rules of evidence”, said Lord Ellenborough, “must expand according to the exigencies of society”.

To the same effect, see Jones On Evidence, Vol. I, § 4:46.

July 1, 1976, the Arkansas Uniform Rules of Evidence became effective, and Rule 803 (21) permits evidence of reputation of an individual “among his associates”. [emphasis added]

Berl Harvey was tried before the effective date of these rules and it is perhaps ironic that the old rule, followed by this court for many years, may be abandoned hereafter.

The lower court and the majority of this court have properly applied the rule as it has existed in the past. But the justification for such a narrow rule has long ceased to exist. The only real argument in defense of that rule, in this day and time, is that it has simply been the rule.

The character witness for the appellant should have been permitted to testify because he was in a position to know Berl Harvey’s reputation, and to deny that testimony in a critical case, where the credibility of the appellant is involved, is to deny a fair trial.

Therefore, I would reverse this case and remand it for a new trial.

Byrd, J., joins in this dissent.

       See 29 .Am. Jur. 2d Evidence § 347 (1967).


text:
    Charles STRANGE, as Next Friend of Connie Lynn STRANGE, a Minor v. Alton STOVALL et ux
    76-234
    546 S.W. 2d 421
    Opinion delivered February 14, 1977
    (Division I)

      Tackett, Moore, Dowd & Harrelson, for appellant.

      Young, Patton & Folsom, for appellees.
   George Rose Smith, Justice.

On Christmas Day, 1973, Connie Lynn Strange, 13, left her home in Stamps to visit her grandparents, who lived next door. On the way the child was attacked and bitten by Blue John, a large dog owned by the appellees, Connie’s uncle and aunt, who had been visiting Connie’s grandparents and were about to leave. This action for personal injuries was brought by Connie’s father, the appellant, as her natural guardian and next friend. There was evidence, sufficient to go to the jury, that the Stovalls knew that Blue John was vicious, Stovall having admitted to two witnesses that the animal was mean and had bitten him several times. The dog had also bitten Mrs. Stovall.

At the close of the case counsel for the plaintiffs asked that the case be submitted to the jury on the theory of strict liability; that is, as set out originally in AMI 1602, that one who keeps a vicious domestic animal with knowledge of its dangerous tendencies does so at his own risk and is liable for injuries caused by the animal without proof that the owner was otherwise at fault. AMI Civil, 1602 (1965).

The trial judge, relying upon the amended version of AMI 1602, as it appears in the pocket supplement to the first edition and in AMI Civil 2d (1974), ruled that strict liability is no longer the law in Arkansas. Finding no negligence on the part of the Stovalls, who had merely tethered the dog near the back door, the court ruled that they were entitled to judgment. Nevertheless, to prevent a retrial, the court submitted the case to the jury upon instructions which included AMI 1602, as amended, and AMI 2102, on comparative negligence. The jury returned a $2,500 verdict in favor of Connie’s father alone, whose recoverable damages are conceded to be only $1,601.50.

We do not agree with the view that with regard to an animal known to be vicious, strict liability is no longer the law in Arkansas. Our cases applying that rule have not been overruled. The revision of AMI 1602, as explained in the 1969 pocket supplement, was based in part upon our holding in Finley v. Smith, 240 Ark. 323, 399 S.W. 2d 271 (1966). That case, however, merely held that an animal’s propensity to injure people may stem from playfulness as well as from savagery. The rule of strict liability was not impaired; if anything, it was broadened.

The Comment in the pocket supplement went on to say that AMI 1602, as originally drafted, was erroneous in barring a recovery if the injured person had done something which a reasonably careful person would have known to be likely to provoke the animal to attack. That proviso, according to the Comment, incorporated contributory negligence as a complete defense, contrary to our comparative negligence statute. Upon that reasoning the instruction was revised to impose a duty on the part of the owner only to use ordinary care to prevent a vicious animal from injuring others.

Doubtless AMI 1602 did need surgery, but the operation went too far. The rule of strict liability still obtains. To illustrate, let it be assumed that the owner of a dog known to be vicious keeps the animal in a steel cage, exercising extreme care to prevent its escape. The animal, however, does escape, through no fault of the owner, and attacks an innocent passerby. In that situation, AMI 1602, as revised, states the law incorrectly, because the dog’s owner is strictly liable regardless of any precáutions he may have taken to avoid the dog’s escape. See Ivester’s lucid casenote, 24 Ark. L. Rev. 593 (1971). We do not imply that an issue of comparative fault might not arise in some situations under Act 367 of 1975, Ark. Stat. Ann. §§ 27-1763 el seq. (Supp. 1975). That problem is not before us now, because neither side asks for a new trial if the lower court was in error.

The judgment is reversed and the cause remanded for the entry of a Si ,601.50 judgment in favor of Charles Strange.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    Allen W. BIRD II, Trustee v. PAN WESTERN CORPORATION et al
    76-250
    546 S.W. 2d 417
    Opinion delivered February 14, 1977
    (Division II)

      Rose, Nash, Williamson, Carroll, Clay & Giroir, for appellant.

      Smith, Williams, Friday, Eldredge & Clark, by: Overton S. Anderson, for appellees.
   John A. Fogleman, Justice.

Appellant is the trustee in bankruptcy for C. E. “Red” Higginbotham, Inc. who executed a document entitled “SUBCONTRACT AGREEMENT” with appellees, Pan Western Corporation, as “Contractor,” for heating and air conditioning of Phase I of Raintree Apartments in Little Rock. After the Higginbotham corporation had, from its viewpoint, completed the job, it filed a voluntary petition in bankruptcy. Appellant then served notice of intent to file a materialman’s and laborer’s lien for $12,300, the alleged balance due on the $123,000 contract with Pan Western, and thereafter filed a foreclosure suit. Appellees denied the debt, alleged improper performance of the contract and asserted that appellant was barred from recovery by Ark. Stat. Ann. § 71-701 et seq (Supp. 1975) because C. E. “Red” Higginbotham, Inc. was not licensed by the Contractors Licensing Board. Summary judgment was granted on appellees’ motion on the ground that the claim was barred by the provisions of Ark. Stat. Ann. § 71-713 (Supp. 1975).

Appellant admits that his corporation was not licensed, but contends that recovery was not barred by § 71-713. The basis of his argument is that this corporation was not a contractor as defined by § 71-701. The gist of it is that one is not a contractor, as defined by the act, unless he undertakes to supply labor and materials under a contract with the owner of the improvement. Thus, he asserts, his bankrupt, a subcontractor, did not come within the purview of the act.

The chancellor was right. Sec. 71-701 defines a “contractor” to be “any . .. corporation . . ., who for a fixed price, commission, fee or wage attempts to or submits a bid to construct, or contracts or undertakes to construct, or assumes charge, in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, or has or have constructed, erected, altered or repaired, under ... its direction, any building, highway, sewer, grading or other improvement or structure, except single family residences, when the cost of the work to be done, or done, in the State of Arkansas by the contractor including but not limited to labor and materials is twenty thousand dolllars ($20,000.00) or more. It is the intention of this definition to include all improvements or structures, excepting only single family residences.” Sec. 71-713 provides, in pertinent part, that “[a]ny contractor who for a fixed price, commission, fee or wage, attempts to or submits a bid or bids to construct, or contracts to construct or undertakes to construct, or assumes charge in a supervisory capacity or otherwise, of the construction, erection, alteration or repair, of any building, highway, sewer, grading or any other improvement or structure, when the cost of the work to be done by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more, without first having procured a license to engage in the business of contracting in this state . . . shall be liable to a fine .... No action may be brought either at law or in equity to enforce any provision of any contract entered into in violation of this act.”

Appellant first seizes upon language in our opinions which he argues indicates that a contractor, as defined by the statute, is one who undertakes to supply labor and materials for a specific improvement under a contract with the owner, citing Arkansas State Licensing Board for General Contractors v. Lane, 214 Ark. 312, 215 S.W. 2d 707 and Davidson v. Smith, 258 Ark. 969, 530 S.W. 2d 356. He takes this to mean that a subcontractor who enters into a contract with a contractor rather than the owner does not come within the purview of the act. He reads too much into these opinions. In the first case, the statute, by its own language, then applied only to general contractors, and required licenses of those engaged in “general contracting” only. The appellee-defendant in that case was not engaged in the contracting business. He was an engineer employed to supervise the construction of an outdoor drive-in theater. The language relied upon by appellant simply appeared in a definition of the word contractor taken from a footnote in a California case. It was used to support other definitions quoted in the Lane opinion. Those definitions did not use the phrase “with the owner,” and the decision does not consider the question raised here. In the second case the agreement was between the contractor and the owner and we merely recited the definitions and distinctions set out in the earlier case. In both cases the issue was whether the appellee was a contractor or employee. Nothing in either case can be taken to mean that we have construed the latest expression of the legislative intent to mean that only those who contract with the owner come within the scope of the statute in its present form.

The ordinary and generally accepted meaning of words used in a statute must yield to the meaning intended by the General Assembly when it is clear from the context of the act that a different meaning is intended. City of Fort Smith v. Hairston, 196 Ark. 1005, 120 S.W. 2d 689. Thus, in construing an act, the courts are bound by specific definitions of a word by the legislature in that act, regardless of the usual and ordinary meaning of that word; unless the definition is arbitrary, creates obvious incongruities in the statute, defeats a major purpose of the legislation or is so discordant to common usage as to generate confusion. 1A Sutherland, Statutory Construction (4th Etd.) pp. 59, 310, 81; §§ 20.08, 27.02, 47.07. We have no reason to apply anything other than the statutory definition in this case.

Following the decision in Lane, the General Assembly amended § 71-701 by Act 153 of 1951. Some of the legislative history is set out in the compiler’s note following § 71-701 (Repl. 1957) as follows:

The 1951 amendment substituted the word “contractor” for “general contractor”; inserted the words “or contracts” following the words “or bids to construct”; substituted the words “assumes” for “assume”; inserted the words “in a supervisory capacity or otherwise” following the word “charge”; inserted the words “or has or have constructed, erected, altered or repaired” before the words “under his, their or its discretion”; and substituted the words “work to be done, or done, in the State of Arkansas by the contractor, including but not limited to labor and materials, is twenty thousand dollars ($20,000.00) or more” for the words “undertaking is ten thousand dollars (S10,000.00) or more, and one who shall engage in the construction or superintending the construction of any structure or any undertaking or improvements, as above mentioned, in the State of Arkansas, costing ten thousand dollars ($10,000.00) or more, shall be deemed to have engaged in the business of general contracting in the State of Arkansas, provided that this definition shall not include architects or engineers, whose only financial interests in the projects shall be the architectural or engineering fees for preparing plans and specifications, surveys and supervision”; . . .

It is also pointed out in the note that, in this amendment, the General Assembly added the following paragraph:

Wherever the term “general contractor” shall appear in this act it shall mean “contractor,” as hereinbefore defined, and wherever the term “general contracting” shall appear in this act it shall mean “contracting. ”

The section was further altered by Act 150 of 1965, Act 142 of 1967 and Act 397 of 1971, but the only change relevant to the case at bar is the deletion of the quoted paragraph which had been added in 1951. Clearly, this leaves the statutory definition as the controlling one and eliminates therefrom any reference to general contractors as such.

Appellant suggests that i strict construction favoring his bankrupt should be given the act, because: the definition of “contractor” lends itself to some confusion; and licensing statutes are construed strictly in favor of the citizen and against the government, especially where penalties are provided for violation. Even so, we find nothing in the act to indicate that the General Assembly intended that to be a “contractor” under the Act, one must contract with the owner.

Tiie contract in issue was an undertaking to furnish all labor, materials, equipment, services and supplies required for a complete job of heati .g and air conditioning of Phase I of Raintree Apartments in Little Rock, Arkansas in accordance with the plans and specifications prepared by the architects.” It container this paragraph:

It is understood that this job is for the construction of Phase I of the Raintree Apartments.

The contract was to be “completed ... to the complete satisfaction of the owner.” This subcontractor agreed that it should, at its expense, “to Owner’s satisfaction” make good any defect or deficiency in the work and would indemnify “Owner and Contractor from any and all claims, loss, damage, expense arising from any such defect or deficiency.” As each partial payment under the contract was made to the subcontractor, the materials and work covered by that payment became the property of the contractor.

In addition, the subcontractor was obligated to perform in accordance with the plans and specifications, and had sole responsibility for all materials and work (even after payment), and the restoration of damaged work. It was required to complete the work expeditiously, according to construction requirements, at the convenience of the contractor, and to its satisfaction; to deliver the whole of the work in a clean and proper state ready for everyday service and use. It agreed to coordinate its work with the work of the contractor and the work of other subcontractors on the premises; to comply with requests of the contractor to put additional manpower on the job and to employ only such labor as would work in harmony with other trades on the project.

Under these circumstances C. E. “Red” Higginbotham, Inc., for a fixed price, contracted to construct, or assumed charge, in a supervisory capacity or otherwise, of the construction, erection, or alteration or had constructed, erected or altered, under its direction a building, improvement or other structure and the cost of the work to be done was in excess of $20,000.

The cases cited by appellant cannot be read to support the position that subcontracting for construction of a portion of a building or of an integral part thereof is not included in the general term “construction” as used in the act. Neither can the statute be so construed. The obvious purpose of the act is to require contractors who desire to engage in certain types of construction work to meet certain standards of responsibility, such as experience, ability, financial condition, etc. Ark. Stat. Ann. § 71-709. These purposes are no less valid for a subcontractor than for a general contractor. The appellant’s version of the act would result in an inconsistent application in the licensing requirements in that a corporation or individual or other, v/ho contracted to install heating and air conditioning in an existing building would be engaging in the “alteration or repair” of that building, therefore would be required to obtain a license; but one who subcontracted to do the same work on a building under construction would not be so required. Webster’s Third New international Dictionary defines “construct:” “To put together so as to form, make, or create something.”

Appellant argues, however, that his position is reinforced by the fact that, in the statute the words “assumes charge” are modified by the subsequent phrase “in a supervisory capacity or otherwise.” But we think the use of the latter phrase including the words “or otherwise,” emphasized above, is indicative of a legislative intent to broaden, rather than narrow, the application of the statute, so that assuming charge could be in a capacity other than supervisory. It seems clear that, in the context used in the statute and in view of the simultaneous changes in its wording “or otherwise” must be construed to mean “in a different manner, or in any other way.” There is a striking parallel in construing the words in a statute in Townley v. Hartsfield, 113 Ark. 253, 168 S.W. 140. There we said:

*** The words “or otherwise” in law, when used as a general phrase following an enumeration of particulars, are commonly interpreted in a restricted sense as referring to such other matters as are kindred to the classes before mentioned. Century Dictionary. The author says the phrase “or otherwise,” when following an enumeration, should receive an ejusdem generis interpretation. Otherwise is also defined by Century Dictionary, the Standard Dictionary and by Webster, as meaning, “In a different manner; in any other way.” We think the phrase “or otherwise” in the act under consideration was intended to be used in its broadest and most comprehensive sense. The phrase “or otherwise” is not used in the statute as a general phrase following an enumeration of particulars; but it follows the words “upon failure to elect by tie vote” and is placed in juxtaposition to these words. When the whole clause “upon failure to elect by tie vote or otherwise,” is considered together with reference to the purpose and object of the act, it is evident that the Legislature intended to give the county judge the power to appoint where no one was elected or where the person elected failed for any reason to qualify when the time for entering upon the new term arrived. ***

The words “in a supervisory capacity or otherwise” were added at the same time that the word “contractor” was substituted for “general contractor.” We think that the legislative intent was to broaden the application of the act so that its application would not necessarily be limited to one who contracted with the owner.

The decree is affirmed.

We agree. Harris, C.J., and Holt and Roy, JJ.