text:
    J. R. BROWDER v. K. E. GAHR
    75-157
    530 S.W. 2d 359
    Opinion delivered December 15, 1975

      Wright, Lindsey & Jennings, for appellant.

      Skillman, Durrett & Davis, for appellee.
   Carleton Harris, Chief Justice.

This personal injury action arose from an altercation in the polling place at Turrell, Arkansas, at the close of election day. Appellant, the then Sheriff of Crittenden County, injured appellee while the latter was being arrested, and appellee obtained a judgment for $30,000. From the judgment so entered, appellant brings this appeal, arguing only that the amount of the judgment is excessive.

Appellee, K. E. Gahr, was an election judge at the Turrell polls in a runoff between appellant and R. L. Simmons on June 11, 1974. Two of appellant’s deputies, R. C. Smithey, and Charles Walker, according to the evidence, were in and about the area all during the day. Following closing of the polls, Mrs. Faye Drake, appellant’s designated poll watcher, stated that the box was being challenged by appellant, and Deputies Smithey and Walker then came in as Mrs. Drake handed the written challenge to poll officials. Smithey and Walker were requested to leave the premises since they did not have poll watcher’s permits. According to witnesses for appellee, Smithey refused to leave, and Alvin Fraley, officer of the day at the polls, and Ricky Stalls, township constable, then placed their hands under Smithey’s arms, lifted him up and carried him out the door. Appellee testified that Walker grabbed him and he struck Walker in the mouth. After the deputies were removed from the polling place, the doors were locked and the election judges and clerks proceeded with their duty of counting the ballots, but within a short time, the back door was apparently forcibly opened by the sheriff and several deputies who entered the room. It is not clear as to exact subsequent events, other than the fact that Gahr and Stalls were placed under arrest for assaulting the deputies. The sheriff testified that he told Smithey to arrest those who had assaulted him, while all bystanders who were not deputies, stated that the sheriff made the arrests. At any rate, according to appellee, one of the deputies placed handcuffs on his right hand, the sheriff choked him, and Deputy Akers hit him in the stomach with a long nightstick.

Jerry Ray Akins testified that the sheriff was choking Gahr, and that he (Akins) was telling the sheriff while this was going on that Gahr had had a serious operation, “He was dragging him back towards the door, which he burst in, and he had him bent back over backwards ***;” that the sheriff finally let go of appellee, who then fell to the floor. The witness said that Akers poked Gahr in the stomach with a nightstick. Akins stated that after Gahr “started coming to, Sheriff Browder walked back over to where he was and said, ‘We are going to get you,’ or something you know.”

Carl Miller testified that:

“A deputy by the name of Butts walked over and caught ahold of Gahr’s arm and twisted it behind him and put the handcuffs on him, and when he done that, the Sheriff put his arm around his neck, choking him, and, of course, he was standing up there and they about choked him unconscious, and then Mr. Akers started to punching him in the stomach with a nightclub out there.”

He said that by that time, Gahr was unconscious, and that he told the sheriff, “You done killed him.”

The testimony of John B. Cage was in the same vein and he added, “The ladies there were asking him not to do it, said he had had an operation, choking him to death and all of that *** >>

Thereafter, Gahr instituted suit against Browder and Akers, obtaining the judgment for $30,000 against the sheriff, and a judgment of $150.00 against Akers.

As earlier stated, appellant does not question the substantiality of the evidence to support a judgment, but it is insisted that the verdict was excessive, and appellant’s principal argument is based upon the testimony of Dr. John E. Robinson, Jr., a general surgeon of Memphis. Dr. Robinson had first examined Gahr on November 23, 1973, for evaluation of an intractable duodenal ulcer and associated pancreatic tumors, and Gahr underwent surgery for this condition and his stomach was completely removed. One month after this operation, Gahr developed an intestinal obstruction which was removed in February, 1974. In March, 1974, appellee underwent surgery for a hyper-parathyroid condition.

Robinson examined Gahr on the night of the assault, finding tenderness around the incision, but no other external signs of trauma. He did not think that the trauma aggravated any existing condition, although he did feel that Gahr would have had more discomfort from physical abuse received in the abdomen than someone who had never had surgery in that area. The witness mentioned that in September, 1974, Gahr underwent another abdominal operation for continued vomiting of bile, but the doctor said this was a pre-existing condition. However, he added that the vomiting “had been resolved by a change in his diet up until the time of this alleged beating.” Dr. Robinson also said that looking at the emotional aspects of the trauma, an ulcer patient’s condition would be aggravated; “Ulcer patients are very emotional and high strung, as a rule.” Appellant points out that the total medical expense, “some of which may not have been attributable to the injuries he received at Turrell was $337.85.”

It is also contended that since the injuries based upon the actions of Deputy Akers were compensated by the jury in the amount of $150.00, the balance of the award was to compensate for the “armlock” or choking action taken by the sheriff. We do not find this contention tenable. Unquestionably, it was the view of the jury that the sheriff had control of Akers and, by a word, could have prevented the assault by the deputy; indeed, the evidence reflects that the sheriff had charge of the entire operation.

As to damages suffered by appellee, it is argued that no effort was made to show that any time was lost from work, or that Gahr’s activities had been limited in any way by his injuries and that accordingly, “the sum of $29,662.15 was awarded by this jury for Mr. Gahr’s pain and suffering and nothing more.”

We cannot agree with the above statement. It might first be mentioned, however, that Gahr detailed quite a bit of physical suffering himself, complaining of pain in his neck, tenderness around his abdominal scars, abdominal pain, and soreness of his body. Within a week after the assault, according to Gahr, there was a recurrence of frequent vomiting after meals, a condition which had been alleviated prior to the assault, and he testified of pain in his lower neck and jaw. Appellee subsequently underwent an additional operation to cure the recurrent vomiting. Let it be remembered that the evidence also reflected that Gahr had undergone surgery for a thyroid condition less than three months before the assault, the thyroid gland being located at the base of the neck.

Of course, had appellee sought punitive damages, the entire amount awarded by the verdict would likely be quickly upheld, for the conduct of the sheriff, under the testimony of the witnesses, cannot be justified in any manner. Browder, a public officer, entrusted by the public to safeguard the rights of its citizens, was six feet tall and weighed two hundred and fifteen pounds, and though the sheriff testified that he only used so much force as was necessary in making an arrest, it would not appear a matter of necessity that he choke Gahr, who was five feet five inches tall and weighed one hundred and twenty-five pounds, into unconsciousness.

As earlier stated, we cannot agree that the award was made simply on the basis of Gahr’s pain and suffering. The jury was instructed as to mental anguish, and this is an important element of damage, in 6 AM. JUR. 2d Assault and Battery § 183, it is pointed out that the prevailing view is that in an action for an assault and battery, damages for mental suffering may be recovered even though the plaintiff received no physical injury. Further:

“Mental suffering reasonably certain to be endured in the future may be taken into account in estimating the amount of damages to be awarded. Other elements that may be taken into consideration in determining such damages include the affront to the plaintiff’s personality, and the indignity, disgrace, humiliation, and mortification to which he was subjected by the defendant’s conduct.
“In an action for assault or battery, damages for mental suffering are usually allowed as compensatory damages.”

This reasoning was followed in the Tennessee case of Garner v. State ex rel. Askins, 137 Tenn. App. 510, 266 S.W. 2d 358 (1953), where the sheriff and his deputy held the victim while a constable beat him with a blackjack in the course of arresting him for reckless driving. There, the trial court granted a remittitur from $4,050 to $750.00, stating that the plaintiff wasn’t hurt, “just his feelings.” The appellate court reversed, restoring the judgment to the full amount originally awarded by the jury and stated:

“Plaintiff was entitled to recover compensation for all his injuries - those already suffered and those he is reasonably certain to suffer - including an allowance for his physical pain and mental anguish, for the affront to his personality, the indignity, disgrace, humiliation and mortification to which he was subjected by the conduct of this peace officer.
“It is true that there are no set rules for determining the amount of damages which a plaintiff is entitled to recover for the wrongful conduct of an officer in a case like this. There is a wide range of variation in amounts in cases more or less similar, but there are numerous cases more or less similar to this in which there were larger judgments than the amount originally fixed by the jury in this case.”

There are no Arkansas cases which deal specifically with the element of mental anguish in an assault and battery case and we thus have no precedent for a guide in the present litigation. As stated by the court in Garner, there are really no set rules for determining the proper amount of damages in a case of this nature, but it is evident from the testimony herein set forth that a jury could find that Gahr suffered not only intense physical pain, but deep mental anguish through worry, humilitation, and mortification occasioned by the attack upon him. Certainly, a jury could have found from the evidence of Dr. Robinson and Gahr that the frequent vomiting by appellee had been resolved prior to the assault; that the additional operation to correct this condition subsequent to the assault, had been occasioned by the sheriff’s attack upon Gahr. Of course, worry over what effect the injuries inflicted could have on his general physical condition, including the possibility of further surgery, could create considerable mental anguish. A jury could find that the embarrassment and humiliation of being choked and beaten in front of one’s friends and acquaintances, as well as being handcuffed like a common felon, by the very nature of these acts, would occasion extreme anguish. How does one measure financial indemnity for this type of damage? What figure properly compensates for such a humiliating and ignominious experience? There can be no set standard.

In Turchi v. Shepherd, 230 Ark. 899, 327 S.W. 2d 553 (1959), this court said:

“A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value. Even as far back as 1928, in the case of Missouri-Pacific Railroad Company v. Elvins, 176 Ark. 737, 4 S.W. 2d 528, this Court said:
‘In this connection it may be also, stated that the jury may consider to some extent that money today has much less purchasing power than it had twenty or even fifteen years ago. This is a matter of common knowledge to all, of which courts and juries may take judicial notice. ’
“Certainly, it is a matter of common knowledge that today’s dollar has greatly diminished in value during the past several years.”

If, in 1959, it was a matter of common knowledge that the dollar had greatly diminished in value during the “last several years,” then it is certainly common knowledge that that statement is undoubtedly even more true today.

We have concluded that the award, considering all of the elements mentioned, pain and suffering, anxiety over possible physical complications that might arise, embarrassment, humiliation, etc., support a generous award — but punitive damages not being involved — not so generous as awarded by the jury.

Accordingly, the judgment is reduced to the sum of $20,-000. If, therefore, within seventeen calendar days, the appellee will enter remittitur for damages in excess of $20,000 the judgment will be affirmed. Otherwise, the judgment will be reversed and the cause remanded.

Fogleman, J., not participating.

      Smithey testified that he was not asked to leave; that somebody simply said, “Throw them out.” He said when he was taken to the outside that one, “Stomped me and kicked me.” He said he was injured, though persons standing outside said that he was not attacked.

      Walker said that Stalls hit him in the mouth.

      The sheriff stated that Gahr took a “swing” at Deputy Butts, “started swinging with his right hand and kicking***.” He said when this happened, “I got him with an armlock and held him until Butts got the cuffs on him.”

      Deputy Akers was five feet eleven inches tall and weighed two hundred forty pounds.

      See Enein v. Milligan, 188 Ark. 658, 67 S.W. 2d 592, where we held that when the tort is intentional, damages for mental anguish are recoverable without physical harm.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Wesley M. STOLZ et ux v. Donald Ray FRANKLIN et ux
    75-111
    531 S.W. 2d 1
    Opinion delivered December 15, 1975
    [Rehearing denied January 19, 1976.]

      James F. Dickson, for appellants.

      R. H. Mills, for appellees.
   John A. Fogleman, Justice.

This is an appeal from a decree quieting title to eight acres of land in the appellees, Donald Ray and Debbie Kay Franklin, on their petition in the chancery court. Appellants, Stolz, offer five points for reversal.

Appellants and appellees, holders of adjacent properties, trace a common source of title from G. H. and Beulah Mae Newlin who were common owners of all the land conveyed to appellants and one Garland Smith, appellees’ grantor. From the Newlins, Smith purchased 40.35 acres, more or less, 39.55 acres of which he conveyed in fee simple absolute by warranty deed to appellees on 23 January 1974, less .8 acre conveyed away in the interim. This acreage is traversed by the Union Star Road; eight acres lying to the east thereof constitute the tract in dispute. The record title of appellees is not really questioned. Appellants purchased a forty-acre tract from Newlin to the east of the above described tract and adjacent to the eight acres in controversy. No fence separated these properties at the time of any of these transfers.

On 13 March 1974, the appellees filed their petition to quiet their title to all the land described in their warranty deed. They also sought injunctive relief to permanently restrain appellants from trespassing upon the land or interfering with appellees’ possession thereof and asked recovery of compensatory damages for trespass and conversion of hay and fencing materials removed therefrom, punitive damages, and costs from appellants. Appellants answered denying each and every material allegation of the petition. This general denial was the only pleading filed by them, except for a motion to quash service of process, which was denied. At no time did appellants plead or assert the affirmative defense of ádverse possession; nor did they offer a motion for the transfer of the cause to the circuit court.

The appellees’ evidence showed that the description in their warranty deed covered the “disputed” eight acres; that Smith and the appellees had paid all the taxes assessed on the land included in the description; and that the portion of appellees’ land west of the Union Star Road was enclosed by a good fence and in the actual possession of appellees, their predecessor in title, Smith, or their lessees over the years. According to the testimony, the eight-acre tract east of the road was not enclosed by a good fence, although there was a fence of sorts which did not, according to the testimony of several witnesses, suffice to restrain cattle set out to pasture therein, until after the road was widened and a new fence constructed some two or three years before the appellees filed their petition. Appellants revealed in later testimony that they had pastured cattle there and that indeed some had escaped and had to be pastured elsewhere. In his pleadings and in his testimony, corroborated by the testimony of Milton Lofton, Donald Ray Franklin disclosed that he had constructed a fence along the eastern boundary of the acreage to the east of the Union Star Road after having had a survey made in late 1973. Shortly thereafter, Wesley Stolz had the fence destroyed and removed the materials. It was, according to Franklin, this action and Stolz’s avowal to remove any fence Franklin might thereafter construct that caused appellees to initiate this action.

At the close of appellees’ case, appellants demurred to the evidence and requested that the petition be dismissed upon the specific ground that the appellees had failed to establish possession of the property requisite to the maintenance of an action to quiet title, that appellees had an adequate remedy at law in ejectment, and that the equitable clean-up doctrine did not include all the damages requested by appellees.

The chancellor sustained the demurrer as to damages for the cutting and removal of hay from the land but otherwise overruled it. According to the chancellor, that portion of the case relating to damages was “purely and simply an action for damages and for trespass and for alleged conversion.” Considering the removal of the fence by Stolz “incidental to the physical marking of the boundary line and the demarcation on the part of the plaintiffs and associated with the boundary line question,” he held these elements of damages to come within the court’s jurisdiction under the clean-up doctrine.

The appellants thereafter presented their evidence and the chancellor entered a decree quieting title in appellees, restraining appellants from interfering with appellees’ use of the land, and awarding appellees damages in the amount of S84.25 for the removal and conversion of the fencing materials.

Appellants list five points for reversal, but three of them involve the same fundamental question, i.e., the jurisdiction of the chancery court to grant relief to appellants. That jurisdiction was raised only by a demurrer to the evidence when appellees (the plaintiffs) rested their case. The chancellor held that the objection to jurisdiction had been waived by failure to raise it by answer, demurrer or timely motion to transfer. The basis of appellants’ attack on equity jurisdiction was the fact that appellees were not in actual possession of the disputed tract, although it is clear that they did have the requisite possession of all of the tract they purchased except for the eight acres east of Union Star Road.

Appellees’ action was brought pursuant to Ark. Stat. Ann. § 34-1901 (Repl. 1962), which provides:

Any person claiming to own land that is wild or improved or land that is in the actual possession of himself, or those claiming under him, may have his title to such land confirmed and quieted by proceeding in the manner hereinafter provided.

Appellees pleaded actual possession in their complaint and appellants joined issue on this fact by their general denial, but never affirmatively pleaded adverse possession or offered any motion to transfer the cause to a court of law. Appellees’ evidence that they were in actual possession of the land west of the road gave them constructive possession of the entire tract included in the description in the warranty deed. Carter v. Stewart, 149 Ark. 189, 231 S.W. 887. Furthermore, appellees offered some evidence of actual possession of the eight acres to the east of the road, i.e., the construction of the fence on the eastern boundary, and, throughout the trial, timely objected to all offers of proof of adverse possession by appellants.

In alleging error on the chancellor’s part for his overruling their demurrer, appellants argue that “equity jurisdiction to quiet title independent of statute can only be invoked by a plaintiff in possession holding the legal title,” citing Gibbs v. Bates, 150 Ark. 344, 234 S.W. 175, and Lowe v. Cox, 210 Ark. 169, 194 S.W. 2d 892. In Gibbs, the chancellor found for the defendant and dismissed the complaint for want of equity jurisdiction where the defendant had answered denying possession by the plaintiff and averring possession in herself. This appellants here failed to do. Contrary to their explanation for this failure, appellants did not risk waiving an objection to the jurisdiction of the court or invoking the equity jurisdiction of the court themselves in pleading adverse possession. This is exactly what was done successfully by the defendant in Gibbs, although it is true that where the defendant in a quiet title action files an answer setting up title in himself by adverse possession and requests affirmative relief, he thereby waives his objection to the jurisdiction of the court and cannot complain if it is exercised against him. See Cribbs v. Walker, 74 Ark. 104, 85 S.W. 244.

But equity jurisdiction of an action to quiet title is not to be tested solely upon the plaintiff’s possession. Rather, it depends to some extent upon the ability of a court of law, under the circumstances of the case to give complete relief. Covington, Bills to Remove Cloud on Title and Quieting Title in Arkansas, 6 Ark. Law Rev. 83, 93, 98. For instance, where neither party is in possession or where jurisdiction is invoked to prevent a continuing trespass, equity may act. See Shirk v. Williamson, 50 Ark. 562, 9 S.W. 307; Mooney v. Cooledge, 30 Ark. 640.

Appellees did seek relief by injunction against a threatened repeated trespass. The complaint probably did not state grounds for equitable relief because the alleged actual trespass was a simple trespass which did not inflict irreparable injury and the repetition was only threatened. See Sanders v. Boone, 154 Ark. 237, 242 S.W. 66, 32 ALR 461. But jurisdiction on this basis was not challenged by the general denial filed, by demurrer to the pleading or by motion to transfer to law. Yet, if appellee had succeeded in showing continuing trespass or irreparable injury, the jurisdiction of equity to quiet title would have been complete.

As pointed out in Lowe v. Cox, supra, the reason equity does not have jurisdiction where the plaintiff’s title is a purely legal one and someone else is in possession is that the remedy at law is plain, adequate and complete, and an action in ejectment cannot be maintained in equity in the guise of a bill in chancery. When such a suit is improperly brought in equity, it should not, on that account be dismissed, as appellants here sought to have done by demurrer to the evidence, but should be transferred to the law court; and if no motion is made to transfer the cause, the objection is waived. Cribbs v. Walker, supra. See also Wade v. Goza, 78 Ark. 7, 96 S.W. 388. The applicability of this principle to an action of ejectment has been long established. Catchings v. Harcrow, 49 Ark. 20, 3 S.W. 884. Appellants made no motion to transfer here so they waived any objection to the jurisdiction of the chancery court.

Appellants properly assert that they could not move to transfer the case to law solely on the pleadings because of the allegation in the complaint that appellees were in possession. Eades v. Joslin, 219 Ark. 688, 244 S.W. 2d 623. Furthermore, the jurisdiction of the chancery court on the ground that the plaintiff has an adequate remedy at law could not have been challenged by demurrer or general denial. Reid v. Karoley, 232 Ark. 261, 337 S.W. 2d 648; Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W. 2d 466. The only proper remedy was a motion to transfer to law. Jackson v. Smith, 236 Ark. 419, 366 S.W. 2d 278.

Appellant was not in anywise prevented from reserving the question of jurisdiction in his answer or of moving to transfer before the trial commenced in spite of the allegations of the complaint. Even though the grounds for transfer did not adequately appear upon the face of the pleadings in this case, appellant could have presented evidence on a motion to transfer to show that the issues were purely legal ones. Haggart v. Ranney, 73 Ark. 344, 84 S.W. 703.

In the absence of such a motion, the chancery court may, in its discretion, transfer the case on its own motion or proceed to trial on the merits. Sledge-Norfleet Co. v. Matkins, 154 Ark. 509, 243 S.W. 289, Catching v. Harcrow, supra. Where a defendant has answered and not reserved any objection to the jurisdiction of the court on the ground that there is an adequate remedy at law, he cannot insist on it at the hearing unless the court is wholly incompetent to grant the relief sought. Reid v. Karoley, supra; Whitten Developments, Inc. v. Agee, supra.

Appellants have urged that their demurrer to the evidence should have been considered as a motion to transfer, even though they did not request that this be done. The chancellor was not required to do so because the motion was not timely. When a party goes to trial without seeking transfer to the proper forum, it is within the trial court’s discretion whether the motion be entertained and refusal to transfer, even before any evidence on the merits has been heard, is not error. New York Life Ins. Co. v. McGee, 183 Ark. 141, 35 S.W. 2d 92; Phelps & Jones v. Jackson, 27 Ark. 585. See also, Arkansas Const. Co. v. Pidgeon-Thomas Iron Co., 172 Ark. 721, 291 S.W. 57; Hemphill v. Lewis, 174 Ark. 224, 294 S.W. 1010.

Of course, the chancery court is not, as we have demonstrated, wholly incompetent to grant the relief appellees sought. See Collins v. Paepcke-Leicht Lumber Co., 74 Ark. 81, 84 S.W. 1044. An ejectment suit may be tried in equity if an objection to its jurisdiction is not timely made. Ogden v. Ogden, 60 Ark. 70, 28 S.W. 796; Flanagan v. Ray, 149 Ark. 411, 232 S.W. 600; Catchings v. Harcrow, supra.

The practice of withholding an objection to the jurisdiction of equity on the ground that there is an adequate remedy at law until the hearing of the case was soundly condemned in Cockrell v. Warner, 14 Ark. 345, where it was said that a party who had pleaded on the merits, without reserving the objection, cannot insist on it unless the equity court is wholly incompetent to grant the relief sought.

We find no error or abuse of discretion in the court’s overruling appellants’ demurrer to the evidence or in trying the case on its merits.

Appellants also complain about the court’s refusal at the conclusion of the trial to grant their motion that the pleadings be amended to conform to the proof on the question of appellants’ adverse possession for more than seven years. They say that the court should not only have done this but, having done so, should have confirmed title in them on the basis of their adverse possession. They also contend that their general denial raised the issue because appellees alleged that appellants had not been in open, notorious, hostile, adverse or continuous possession of the tract in dispute during any sustained period.

Appellants rely upon Ark. Stat. Ann. § 27-1155 (Repl. 1962), but this section is not the only one bearing upon amendment of the pleadings to conform to the proof, which is covered by Ark. Stat. Ann. § 27-1160 (Repl. 1962). Of course, adverse possession for seven years is an affirmative defense which must be pleaded by answer. Sanders v. Flenniken, 172 Ark. 454, 289 S.W. 485. It may be the basis for affirmative relief. Worthen v. Rushing, 228 Ark. 445, 307 S.W. 2d 890. But it should have been asserted by counterclaim before appellants could have their title quieted on that ground. See Mason v. Gates, 90 Ark. 241, 119 S.W. 70. A general denial could not possibly raise either issue, for it only serves to deny each separate allegation of the complaint. Affirmative defenses and counterclaims must have been specifically stated in addition to the general denial. Ark. Stat. Ann. § 27-1121 (Repl. 1962). It was not error to exclude evidence proffered on the issue in the absence of a pleading raising it. Rucker v. Martin, Phillips & Co., 94 Ark. 365, 126 S.W. 1062.

Allowing an amendment to conform to the proof, where objection has been made to the evidence which would form the basis of the amendment (as was done here from the inception of the trial) is a matter lying within the sound judicial discretion of the trial court and its action will be sustained on appeal unless there has been a manifest abuse of that discretion. Rucker v. Martin, Phillips & Co., supra; Cole v. Branch & O’Neal, 171 Ark. 611, 285 S.W. 353. See also, Hogue v. Jennings, 252 Ark. 1009, 481 S.W. 2d 752. It has been held that it is not an abuse of discretion to deny such a motion which would inject into the case an issue not raised by the pleadings when it is made after the case has been completely developed, because the adverse party then is not prepared to meet the new allegation. Old American Ins. Co. v. Deloney, 178 Ark. 1194, 13 S.W. 2d 825; Butler v. Butler, 176 Ark. 126, 2 S.W. 2d 63; Cole v. Branch & O’Neal, supra; Mooney v. Tyler, 68 Ark. 314, 57 S.W. 1105; Kempner v. Dooley, 60 Ark. 526, 31 S.W. 145.

We are certainly unable to say that there was an abuse of discretion in this case where appellees consistently objected to the evidence relied on for amendment. Appellants were admittedly avoiding pleading the issue for fear that to do so might sustain equity jurisdiction and, in stating their motion to amend, concluded with the statement that they also wished to preserve the record that there was a lack of equity jurisdiction.

On cross-appeal, appellees contend that the court should have allowed all damages they sought, including punitive damages. Assuming that the evidence would have supported an award of punitive damages, appellees invoked equity jurisdiction. Punitive damages are in the nature of a penalty. See Holmes v. Hollingsworth, 234 Ark. 347, 352 S.W. 2d 96. Equity will not ordinarily enforce penalties. Hendrix v. Black, 132 Ark. 473, 201 S.W. 283, LRA 1918 D 217; Cooley v. Lovewell, 95 Ark. 567, 130 S.W. 574. It has been held that one who appeals to a court of equity for relief waives the award of punitive damages as a matter of right. Coca-Cola Co. v. DixiCola Laboratories, 155 F. 2d 59 (4 Cir., 1946); Busby v. Mitchell, 29 S.C. 447, 7 S.E. 618 (1888); United States v. Bernard, 202 F. 728 (9 Cir., 1913); Wilborn v. Balfour, 218 Miss. 791, 67 S. 2d 857 (1953); Superior Construction Co. v. Elmo, 204 Md. 1, 102 A. 2d 739, 104 A. 2d 581, 48 ALR 2d 932 (1954). Certainly, one who elects to proceed in equity where he had an adequate remedy at law (as appellees did) must be held to have waived punitive damages.

We find no error in the chancellor’s sustaining appellants’ demurrer to the evidence as to damages for their having cut hay as a matter of trespass and conversion (common law torts) and not incidental to appellees’ title or right to possession. See Spitzer v. Barnhill, 237 Ark. 525, 374 S.W. 2d 811.

The decree is affirmed on appeal and cross-appeal.

Byrd, J., dissents.

      It is significant that the record showed that the defendant Bates had been in possession of the land in question for more than 15 years claiming it adversely to all persons.


text:
    CITY OF HOT SPRINGS, ARKANSAS and HOT SPRINGS, ARKANSAS, AIRPORT COMMISSION v. NATIONAL SURETY COMPANY
    75-168
    531 S.W. 2d 8
    Opinion delivered December 15, 1975

      George M. Callahan and Eudox Patterson, for appellants.

      Coleman, Gantt, Ramsay & Cox, for appellee.
   John A. Fogleman, Justice.

The City of Hot Springs entered into a contract on July 11, 1967, with McGeorge Contracting Company, Inc., for earth work and paving for the Hot Springs Municipal Airport for a consideration of $704,277.95. In the contract McGeorge agreed to furnish a bond, with approved surety, guaranteeing the performance of the contract, as required by the laws of Arkansas, to be conditioned on full and complete performance of the contract and for the payment of all labor and materials and guaranteeing “the work against workmanship or materials for a period of one year after completion.” The contract provided that the surety must be a surety company of financial resources satisfactory to the City of Hot Springs. McGeorge and appellee National Surety Company, as surety, executed a bond by which they bound themselves to The City of Hot Springs, as obligee and owner, incorporating the basic contract by reference. This bond contained the following clause:

*** No suit, action, or proceeding shall be brought on this bond except by the Owner after six (6) months from the date final payment is made on the Contract, nor shall any suit, action or proceeding be brought by the Owner after two (2) years from the date on which the final payment under the Contract falls due.

The work under the contract was substantially completed on or about August 15, 1968. Deterioration in the runway was discovered April 20, 1969, and the airport manager notified McGeorge and its paving subcontractor, Mid-State Construction Company. Representatives of the subcontractor patched cracks which had appeared in the runway and final payment was made on May 13, 1969. Subsequently, additional cracking and deterioration became apparent to appellants, who notified McGeorge and Mid-State. No remedial action was taken and appellants brought suit for specific performance of the contract on July 16, 1973, against both McGeorge and Mid-State, making appellee a party defendant, as the surety on the bond. The surety company answered, pleading the statute of limitations. The cause of action was then transferred to the circuit court, after which appellants amended their complaint to seek recovery of damages. Appellee then moved for summary judgment, relying upon the clause in the bond quoted above. The court granted the motion and dismissed the complaint of appellants as to National Surety Corporation. Hence this appeal.

Unless we can say that the clause relied upon by appellee is inoperative, we must affirm. Appellants contend that the statute of limitations of five years set out in Ark. Stat. Ann. § 37-237 (Supp. 1973) was the applicable limitation on its action and that the attempted two-year limitation in the bond was void as against public policy.

Appellants first argue that they were not parties to the bond and so were not bound by its limiting clause. It is difficult to understand how the City is bringing suit on a bond required by its contract with McGeorge without having accepted it. In the first place, acceptance may be presumed from appellants’ retention of the bond, at least when that is coupled with appellants’ permitting the contractor to enter upon the performance of his contract without objecting to the bond he tendered. Graves v. The Lebanon National Bank, 73 Ky. (10 Bush) 23 (1873); McIntosh v. Dakota Trust Co., 52 N.D. 752, 204 N.W. 818, 40 ALR 1021 (1925); Fiala v. Ainsworth, 63 Neb. 1, 88 N.W. 135, 93 Am. St. Rep. 420 (1901), See also, Mailers v. Crane Co., 92 Ill. App. 514 (1900) afmd 191 Ill. 181, 60 N.E. 804 (1901). But by bringing suit on the bond, appellants by necessary implication, have treated it as acceptable or have ratified it. McIntosh v. Dakota Trust Co., supra; Tidball v. Eichoff, 66 Tex. 58, 17 S.W. 263 (1886); Bird v. Washburn, 10 Pick (Mass.) 223 (1830). The fact of acceptance and the bringing of suit implies an assent to the terms and conditions of the instrument. See Merchants National Bank v. Detroit Trust Co., 258 Mich. 526, 242 N.W. 739, 85 ALR 350 (1932); Tidball v. Eichoff, supra. It has been aptly said that beneficiaries of a bond take it as they find it. Horne-Wilson, Inc. v. National Surety Co., 202 N.C. 73, 161 S.E. 726 (1932).

We cannot agree that the limitation provided in the surety bond is so unreasonable as to be against public policy. Of course, the parties were free to contract for a limitation of the time within which actions might be brought on their contractual undertaking, which was shorter than is prescribed by the applicable statute of limitations, so long as the stipulated time was not unreasonably short and the agreement did not contravene some statutory requirement or rule based upon public policy. St. Louis Southwestern Rwy. Co. v. Haynie, 120 Ark. 26, 179 S.W. 170; Kansas City Southern Rwy. Co. v. Bull, 120 Ark. 43, 179 S.W. 172; Missouri & N. Ark. R.R. Co. v. Ward, 111 Ark. 102, 163 S.W. 164; Dwelling House Ins. Co. v. Brodie, 52 Ark. 11, 11 S.W. 1016, 4 LRA 458; Phillips v. Mosaic Templars of America, 154 Ark. 173, 241 S.W. 869; Hafer v. St. Louis Southwestern Rwy. Co., 101 Ark. 310, 142 S.W. 176. Such provisions are often called a condition precedent to an action on the contractual undertaking.

Insofar as this action is concerned there is no statutory prohibition against such a requirement. The bond guaranteeing workmanship and materials is a common-law obligation, not a bond required by statute, and appellants correctly contend that the applicable statute of limitations bars the action after five years. See Ark. Stat. Ann. § 37-237 (Supp. 1973); State v. Western Surety Co., 223 Ark. 344, 266 S.W. 2d 835. A period of time so short as to amount to an abrogation of the right of action would be unreasonable. See Annot., 121 ALR 758 (1939), 6 ALR 3d 1197, 1202, 1204 (1966). But it is implicit in the decisions on the subject that the stipulated period is not unreasonable if the time allowed affords a plaintiff sufficient opportunity to investigate his claim and prepare for the controversy. See Annot., 6 ALR 3d 1197, 1202.

Numerous bonds of contractors engaged in private or public construction providing a limitation period no longer than that involved here have been upheld as reasonable and not violative of public policy. See, e.g., John M. Kelley Contracting Co. v. United States Fidelity & Guaranty Co., 278 F. 345 (3 Cir., 1922); Horne-Wilson, Inc. v. National Surety Co., 202 N.C. 73, 161 S.E. 726 (1932); Landis & Young v. Gossett & Winn, 178 S. 760 (La. Ct. App. 1937); Hale & Sons v. Stone Eng. Co., 14 Tenn. App. 461 (1932); McGarry v. Seiz, 129 Ga. 296, 58 S.E. 856 (1907); Rechtsteiner v. National Surety Co. of N.Y., 44 Cal. App. 774, 187 P. 34 (1919). See also, Annot., 6 ALR 3d 1197, 1222, 1240.

We are not impressed with appellants’ argument that public policy in respect to this bond is declared by Ark. Stat. Ann. § 66-3323 (Repl. 1966), prohibiting delivery of a life insurance policy containing such a clause. But the restriction of this statutory provision to life insurance contracts and its placement in the chapter of the Arkansas Insurance Code relating only to contracts of life insurance and annuities are indicative of a legislative intention to narrowly restrict the application of the statute to those contracts specifically named. We have heretofore declined to apply legislation prohibiting such contractual limitations in insurance contracts beyond the scope of the language of the prohibitory statute. See Liebe v. Sovereign Camp, W.O.W., 205 Ark. 540, 170 S.W. 2d 370; Phillips v. Mosaic Templars of America, supra. It is also notable that the Insurance Code contains a provision voiding limitations on actions against sureties on bonds filed by an insurer, as a condition precedent to its doing business in this state, to a period shorter than that provided by the applicable statute. Ark. Stat. Ann. § 66-3232 (Repl. 1966). If the General Assembly had intended .that this policy be applicable to all bonds and all corporate sureties, it would certainly have not restricted the application of this section in the chapter covering all insurance contracts other than named exceptions.

We are certainly unable to say that the limitation contained in the bond in this case is unreasonable or unduly restrictive. Final payment was made on. May 9, 1969. The guarantee was for only one year after completion. It was alleged by appellants that the work was substantially completed on or about August 15, 1968. One year from that date still left more than one year and eight months for the bringing of this suit. This certainly should have given appellants ample time within which to investigate and prepare their suit against appellee, particularly when, as here, deterioration and cracking had appeared and repairs had been necessary prior to final payment.

The circuit judge correctly held that appellee’s motion for summary judgment was well taken, so the judgment is affirmed.


text:
    Doris M. FANT and James E. GADD v. STATE of Arkansas
    CR 75-152
    530 S.W. 2d 364
    Opinion delivered December 15, 1975

      McArthur, Lofton & Wilson, for appellants.

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

Doris M. Fant and James E. Gadd were charged with violation of the Uniform Controlled Substances Act, Act 590 of 1971 as amended, [Ark. Stat. Ann. §§ 82-2601 — 2638 (Supp. 1973)] by delivery of a controlled substance (heroin) on March 6, 1974. Upon conviction they appeal. Both argue that the evidence does not support the verdict because their actions did not constitute the offense charged.

The evidence on behalf of the state showed that Don Birdsong, an undercover police officer met appellants Fant and Gadd at Trailer 10 at 16619 Adams in Little Rock. He negotiated with Doris Fant for the purchase of one gram of heroin. She made two telephone calls, upon instructions of Gadd, who told her to “see if the stuff was there, ” after which Birdsong and Fant went to a house on 13th Street near MacArthur Park in a 1966 Volkswagen driven by Gadd. There Birdsong gave Doris Fant SI20, she left the vehicle, returned 20 minutes later and delivered a tinfoil package containing heroin to Birdsong. They then returned to the trailer and Birdsong took his purchase to police headquarters where he stored it until chemically analyzed.

Gadd testified that: two girls working with Birdsong had come to Gadd’s trailer on the date alleged; they had earlier asked Gadd if he could get a friend some heroin; later they brought Birdsong to the trailer; Fant was there then, and upon being requested, she agreed to get heroin for them; Gadd drove them to a place where there was a house into which Doris Fant went and obtained the heroin; he went according to her direction, since he was unfamiliar with Little Rock; Gadd did know what was “going on”.

Fant testified that: she lived with Gadd in his trailer and met Birdsong and his feminine companion there; when they asked if she knew where they could get “a gram,” she made a couple of calls and talked to Ricky Crouch and learned that he had some heroin; she then went to the Crouch address on 13th Street, took money from Birdsong and gave it to Crouch, obtained the heroin from Crouch, looked at it, and then took it back to Birdsong; Gadd participated only by driving the group to Crouch’s place.

Appellants ask us to reconsider our holding in Curry v. State, 258 Ark. 528, 527 S.W. 2d 902 (1975), tacitly acknowledging we would have to overrule it to uphold their argument. This we decline to do. Appellant argues that we have misconstrued the basic authority cited in support of our decision in Curry. We think riot. The definition of “delivery” by Ark. Stat. Ann. § &2-2601 (f) (Supp. 1973) includes actual delivery from one person to another of a controlled substance in exchange for money, whether or not there is an agency relationship. This definition eliminates the “procuring agent” defense in a case where delivery is made by an agent of either the purchaser or seller, just as did the definition of delivery in the statute under consideration in United States v. Pruitt, 487 F. 2d 1241 (8th Cir., 1973). The Arkansas statute does not prohibit sale. It prohibits “delivery” as defined by the statute [Ark. Stat. Ann. § 82-2601 (f) (Supp. 1973)]. Cases such as Sweatt v. State, 251 Ark. 650, 473 S.W. 2d 913, which involved a charge of “selling or bartering” a hallucinatory drug under another statute,are not applicable under the present statute. Our reading of United States v. Pruitt discloses that the Eighth Circuit Court of Appeals made this very distinction, i.e., that the “procuring agent” defense is relevant to a charge of “selling” but not to a charge of “distribution.” In the statute there under consideration, distribution was defined as delivery of a controlled substance. The definition of delivery in that act is virtually identical with the definition in our statute, except for the requirement in our act that the transfer be in exchange for money or anything of value. Here, there was a delivery by Fant to Birdsong in exchange for the money he gave her. We do not understand appellants’ argument that there are material differences between the act involved in Pruitt and the act applicable here.

We might add that we also distinguish Henderson v. State, 255 Ark. 870, 503 S.W. 2d 889, which is apparently relied upon by appellants but cited as Walters v. State, 255 Ark. 904, 503 S.W. 2d 895. The question there was whether a witness was, as a matter of law, an accomplice of the deliverer of heroin. The role of the witness was, at most, that of “facilitator” of a delivery of heroin, acting on the part of the recipient, not the deliverer. The evidence indicated that the witness actually paid the alleged deliverer for the heroin, or arranged for its purchase, but did not participate in the delivery to Janice Sue Smith, the paramour of the witness and the person to whom the delivery was alleged to have been made.

Gadd also contends that the evidence is insufficient to show his complicity in the crime, claiming that he was a mere bystander. To say the very least, there was substantial evidence to show that he not only stood by, but aided, abetted, and assisted Fant in the delivery, which supported a finding that he was an accessory who was punishable as a principal. Ark. Stat. Ann. § 41-119, 41-118 (Repl. 1964).

The judgment is affirmed.


author: Frank Holt, Justice.

text:
    Daniel Leslie HARTMAN v. STATE of Arkansas
    CR 75-133
    530 S.W. 2d 366
    Opinion delivered December 15, 1975

      Harold Hall, Public Defender, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Jackson Jones, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

Appellant Hartman and three others, Emerson, Roberts, and Whitehead, were convicted by the court, sitting as a jury, of possession of marijuana with intent to deliver. Ark. Stat. Ann. § 82-2617 (Supp. 1973). They were sentenced to five years imprisonment in the Arkansas Department of Correction. Appellant’s sole point for reversal is that the evidence is insufficient to support the verdict as to Hartman’s participation. We cannot agree when we consider the evidence, which is substantial, in the light most favorable to the appellee as we must do on appeal. Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492 (1975).

Undercover agents testified they made a deal with Roberts to purchase twenty pounds of marijuana. Roberts advised them that he could make delivery at a certain time and at a designated location. The two agents picked Roberts up at his home and proceeded to this site where Emerson and Hartman arrived in a car driven by Emerson. The officers refused Emerson’s request to go somewhere else to get the marijuana. Thereupon, Emerson and Hartman left with Emerson driving and advising “they” would be back. They returned a short time later in another car, driven by Emerson, with Hartman in the front seat and Whitehead sitting in the back seat. The occupants then got out of the car. Emerson and Hartman went to the trunk of the car where they “looked into” and “fooled around with the trunk.” Emerson removed a box from his car trunk and put it onto his car seat where it was examined by the officer and then transferred by Emerson to the undercover agent’s car. Thereupon, the officers arrested the appellant and his codefendants. There was no money exchanged during the transaction. There was no testimony that the defendant Hartman talked to the officers, drove either of the cars involved, or transferred the marijuana from one car to the other.

The distinction between accessories and principals has been abolished in all criminal cases and accessories are punished as principals. Ark. Stat. Ann. § 41-118 (Repl. 1964). Murrah v. State, 253 Ark. 432, 486 S.W. 2d 897 (1972). In the case at bar, the evidence is amply sufficient from which the trial court, the trier of the facts, could reasonably infer that the appellant, being present on two occasions, was an active participant in the alleged offense.

Affirmed.


author: PER CURIAM

text:
    HOUSING AUTHORITY Of The City Of CONWAY v. RENSHAW & TAYLOR, Architects, P. A.
    75-232
    534 S.W. 2d 1
    December 15, 1975
   PER CURIAM

Appellee asserts, pursuant to Ark. Stat. Ann. § 27-2127.1 (Supp. 1973), we should dismiss this appeal from a monetary jury award because of the appellant’s failure to file the transcript in this court within the statutory ninety days from the date of the filing of the notice of appeal without securing a valid extension of time in the manner prescribed in our Rule 26A.

Within the ninety day time limitation, the appellant secured from the court a one month’s extension beyond the ninety days. However, opposing counsel was not given notice of the application for the extension of time as is required by Rule 26A. The appellant filed the transcript on the ninety-first day (August 19, 1975) after the notice of appeal, or on the first day of the extension of time. It appears, however, that on August 12, 1975, the appellee had knowledge of appellant’s petition for a thirty day extension of time to file the transcript and the order granting it since it received certified copies on that date. The appellee filed its motion to dismiss the appeal on October 6, 1975, which was four days after the appellant had filed its brief. In the circumstances we must deny the motion. In Owens v. Bill & Tony’s Liquor Store, 258 Ark. 887, 529 S.W. 2d 354 (1975), we said:

Since Ark. Stat. Ann. § 27-2106.1 (Repl. 1962), provides that the failure to file the record in this Court within 90 days, or any extension thereof, does not affect the validity of the appeal but only furnishes ground for such action as we deem appropriate, we must decide what action is appropriate. When we consider that the purpose of the restriction placed in Ark. Stat. Ann. § 27-2127.1, by Act 206 of 1971, was to eliminate unnecessary delays in the docketing of appeals, we hold that an appellee who does not object to the obtaining of such an extension at the first opportunity will be deemed to have waived the error.

Here, as there, the appellee did not raise the issue until after the appellant had filed its brief in this court.

Motion denied.


author: Carleton Harris, Chief Justice.

text:
    Viola LEDFORD v. GAS MART CO., INC.
    75-193
    531 S.W. 2d 11
    Opinion delivered December 22, 1975

      Robert E. Imán, for appellant.

      Laser, Sharp, Ilaley, Young & Bosivell, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Viola Led-ford, brought this negligence action, seeking to recover for a “slip and fall” on the premises of appellee’s self-service gas station. Appellant contended that the fall was caused by appellee’s negligence in leaving oil on the driveway where appellant fell. At the close of appellant’s evidence, the trial court directed a verdict for appellee on the grounds that appellant had sued the wrong entity — Gas Mart Co., Inc., rather than Gas. Mart Co., the actual name of appellee — and that in any event appellant had failed to present any substantial evidence of appellee’s alleged negligence. From the judgment so entered, appellant appeals, arguing that the trial court erred by directing a verdict on these two grounds.

Since we are of the view that there was no substantial evidence presented with reference to negligence on the part of appellee, there is no need to discuss the first ground for granting the directed verdict. Ms. Ledford, a resident of Atkins, testified that she went to the Gas Mart on December 18, 1968, for the purpose of putting gasoline in her automobile ... it had rained, but was not raining at the time. She got out of her car, picked up the nozzle on the machine . . . pumped the gas into her car . . . walked back to the pump and hung the nozzle on the hanger . . . then started back to her car and fell. She did not observe any grease before she fell, but after falling, observed a space with grease or oil on it. She also observed grease on her blue jeans where she had fallen. Appellant then paid the office attendant for the gasoline, commenting to him, “You got some grease on your driveway. You ought to put something on it. ” This constituted all of the evidence offered on behalf of appellant as far as the manner in which the fall occurred. No evidence was presented that showed any employee of appellee was responsible for the oil or grease spot on which she slipped, or that the oil or grease had been on the driveway for such a length of time that the operator should have known of its presence. Appellant recognizes that under our cases, she has the burden to show either that the employee placed a substance which caused her injury on the driveway, or that it had been there for a sufficient length of time that the operator should have known of its presence. However, it is contended that since appellee is a self-service station, and the customers serve themselves, the usual rule should not apply. From the brief:

“By the very nature of this business the jury could have inferred that to let customers pour oil and pump gas into their own cars was conducting a dangerous business operation.”

No compelling reasons are offered to support this argument. Appellant did not call the supervisor or operator of the station as a witness to determine whether any effort was made to keep the premises safe, nor did appellant offer any evidence from other witnesses that the driveways of the station were regularly covered with oil and grease. In Moore v. Willis, 244 Ark. 614, 426 S.W. 2d 372, this court said:

“No presumption of negligence arises from the mere fact that a customer sustains a fall while in a store. Miller v. F. W. Woolworth Co., 238 Ark. 709, 384 S.W. 2d 947. A storekeeper is not an insurer of his patrons against any and all hazards which may be encountered on his premises. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S.W. 2d 564. He is liable to a patron who is injured as a result of slipping on some foreign substance or object on the floor where it is shown by the evidence, or is reasonably inferable therefrom, that the foreign matter was negligently placed or left on the floor by the storekeeper or one for whose acts he is responsible, or that the matter had remained on the floor a sufficient length of time that the storekeeper knew, or, in the exercise of ordinary care, should have known of its presence. Kroger Grocery & Baking Co. v. Dempsey, supra; Deason v. Boston Store Dry Goods Company, 226 Ark. 667, 292 S.W. 2d 261, 61 ALR 2d 170.”

As stated, we presently see no reason why a different, rule should apply to the case before us than was applied in the cases cited.

Affirmed.

       The size of the space cannot be determined from the record, the testimony reflecting, “Approximately that much space with grease or oil or something on it.”

       Cases cited by appellant deal with the constitutionality of city ordinances in two sister states which prohibit the operation of self-service filling stations, and have no application to the facts at hand.


author: George Rose Smith, Justice.

text:
    Florence SCHUMAN et al v. Virginia MARTIN et al
    75-194
    531 S.W. 2d 26
    Opinion delivered December 22, 1975

      Frank II. Cox, for appellants.

      Troy R. Douglas and Hardin, Jes son & Dowson, for appellees.
   George Rose Smith, Justice.

The appellees, claiming ownership by inheritance from their mother, brought this suit to quiet their title to two city lots in Forth Smith and to cancel a State tax deed issued to the appellants in 1949. The defendants did not rely upon their tax deed as being valid, but they did assert title as a result of having paid the taxes for more than seven successive years. After a trial the chancellor entered a decree granting the relief sought by the plaintiffs, subject to their reimbursing the defendants for the amount of their tax payments, with interest. For reversal the appellants rely, as they did below, upon the superiority of their title.

That the appellees originally acquired title by adverse possession is shown by the weight of the evidence. Their mother bought the property in 1945 or 1946 and occupied a small house upon it until her death in 1947. Possession was continued either by some of the plaintiffs themselves or by tenants until the house burned in 1955. Hence there was continuous possession for more than seven years, which of course ripened into title.

The appellants, however, paid the taxes annually from 1949 to 1972, with the exception of the year 1964, when the appellees paid them. It is now insisted that, after the house burned, the appellants acquired title by the payment of taxes, under color of title, upon unimproved and unenclosed land for seven successive years. Ark. Stat. Ann. § 37-102 (Repl. 1962).

The appellants are mistaken in their understanding of what constitutes “unimproved and unenclosed” land. Those words are used in Section 37-102. which requires payment of taxes for seven years under color of title. The companion statute, Section 37-103, requires payment of taxes for fifteen years without color of title and refers to “wild and unimproved” land. We have repeatedly held that the two statutes refer to the same conditions, “unimproved and unenclosed” being used interchangeably with “wild and unimproved.” See the discussion in Schmeltzer v. Scheid 203 Ark. 274, 157 S.W. 2d 193 (1941). It is also settled that lands which have been improved cannot be said to be “wild and unimproved” until they have been allowed to revert to the wild state that existed • before the improvements were made. Weston v. Hilliard. 232 Ark. 535, 338 S.W. 2d 926 (1960); Moore v. Morris, 118 Ark. 516, 177 S.W. 6 (1915).

Here the two city lots in question did not revert to their original wild state. After the house burned the appellees paid someone to level off the lots. Thereafter a relative who lived next door to the property looked after it, keeping the grass mowed. There is no proof that the property was allowed to return to its natural state. Consequently the appellants cannot prevail upon the theory that they were paying taxes upon unimproved and unenclosed land, as that phrase has been interpreted through the years.

Affirmed.


text:
    Virginia CROCKETT v. Ralph JOHNSON et al
    75-199
    530 S.W. 2d 671
    Opinion delivered December 22, 1975

      Blankenship & Jarhoe, for appellant.

      II. David Blair, for appellees.
   George Rose Smith, Justice.

The issue here is the validity of a default judgment entered by the circuit court of Lawrence county against a resident of Sharp county, over whom the court acquired no personal jurisdiction. The trial court was right in setting aside the default judgment, on the ground that it was void.

The appellant brought suit in Lawrence county upon a $10,000 promissory note executed by the appellee Ralph Johnson, a long-time resident of Sharp county. The summons was served by the sheriff of Sharp county, in that county. No answer having been filed within the time allowed, the court entered a default judgment against Johnson. Later on, after a writ of execution had been sent to Sharp cssunty without results, the plaintiff sought judgment against the Sharp county sheriff and his bondsman. Johnson and the sheriff then attacked the original judgment, which the trial court set aside.

For reversal the appellant relies upon a line of cases, beginning with State v. Hill, 50 Ark. 458, 8 S.W. 401 (1887), holding that one who attacks a judgment rendered in his absence must show not only that he was not properly summoned but also that he did not know about the proceeding in time to make his defense. Upon that theory it is argued that Johnson is bound by the judgment, because the service of summons in Sharp county gave him notice that he was being sued.

That line of authority is distinguishable; for in those cases the court could acquire personal jurisdiction over the defendant, there merely being some defect in the service of process. Here personal jurisdiction was lacking. Under our statutes an action upon a transitory cause of action cannot be maintained in one county upon service had in another county. Chambers v. Gray, 203 Ark. 858, 158 S.W. 2d 926 (1942). A default judgment in such a situation is necessarily void, for otherwise every court in the state would have statewide jurisdiction to compel residents of other counties either to defend a suit such as this one in the first place or to show a meritorious defense in order to attack the default judgment. That showing is unnecessary when the judgment is void. Davis v. Schimmel, 252 Ark. 1201, 482 S.W. 2d 785 (1972). The trial court was right in setting aside the void default judgment.

Affirmed.


text:
    Carl Albert COLLINS v. STATE of Arkansas
    CR 75-110
    531 S.W. 2d 13
    Opinion delivered December 22, 1975
    [Rehearing denied Jan. 19, 1976.]

      John Barry Baker and Robert R. Estes, Public Defenders, Fayetteville, for appellant.

      Jim Cuy Tucker, Atty. Gen., by: Robert A. Newcomb, Asst. Atty. Gen., for appellee.

      Beryl Anthony, 13th Circuit Prosecuting Atty; Lee A. Mun-son, 6th Circuit Pros., Atiy., John Wesley Hall Jr and Fred Hunt Jr.. Deputies, Amius Curie.
   George Rose Smith, Justice.

The appellant, Carl Albert Collins, was convicted of a capital felony, the murder of John Welch, and was sentenced by the jury to death by electrocution. The principal issue is the validity of Act 438 of 1973, which reinstated the death penalty after the decision in Furman v. Georgia, 408 U.S. 238 (1972). Ark. Stat. Ann., Title 41, ,Ch. 47 (Supp. 1973). We find the statute to be constitutional.

John and Gertrude Welch, an elderly couple who had been married for 54 years, were living at the time of the crime in a rural home in Washington county. Carl Collins, aged 20, had been working for the Welches for a month, helping Mr. Welch build a barn. On the evening of August 12, 1974, as Carl was being given his wages, he evidently learned that Mr. Welch had several twenty-dollar bills in his wallet.

Carl’s brother-in-law brought Carl to work early the next morning. At about 9:15 Carl came from the barn to the house to get the morning’s ice water, which was ready. Mrs. Welch testified that Carl suddenly attacked her and struck her repeatedly and painfully on the head with some object she could not identify. Mrs. Welch’s screams apparently brought her husband to the house. As he entered he said: “Carl, what is the matter with you?” At that point Mrs. Welch blacked out. When she came to, Carl was running out with a shotgun and a box of shells. He slammed the door behind him and started the Welches’ truck.

Welch sustained a mortal shotgun wound. He said: “Carl shot me and took my billfold. I am not going to make it. Can you make it?” Mrs. Welch answered: “I don’t think so. I am bleeding too much.” At her husband’s suggestion Mrs. Welch crawled to the bathroom and tried to stop the flow of blood by resting her head on a bathmat and applying a towel to her head. She lay there for several hours, getting weaker and thinking that she was dying. Whenever she raised her head she would black out completely.

Help finally arrived at about 2:00 p.m., when a passing telephone repairman happened to come to the house. By then Mr. Welch was dead; the court admitted his statements as a dying declaration. Mrs. Welch testified that her husband’s wallet was gone, that the money in her purse was taken, and that the telephone was torn from the wall.

Apart from Mrs. Welch’s testimony the State’s proof of Carl’s guilt was conclusive. The Welches’ truck wa^ found abandoned in a wooded area in Madison county. Near it were a hacksaw and the sawed-off end of a double-barreled shotgun. On August 13, the day of the murder, a Volkswagen automobile was stolen in Madison county. That night an officer, who did not know of the theft, saw Carl standing by that car in North Little Rock. When the stolen Volkswagen was recovered by the state police one of Carl’s fingerprints was on the steering wheel. In the back seat was the rest of the sawed-off shotgun, which was identified as having come from the Welch home and which matched the portion found near the abandoned truck in Madison county.

In Furman v. Georgia, supra, the five-judge majority, in five separate and to some extent conflicting opinions, held that the Georgia and Texas capital punishment statutes were invalid as imposing cruel and unusual punishment. Only two of those five thought that every form of capital punishment is necessarily unconstitutional. The other seven members of the court took the opposite view, which obviously finds support not only in our history but also in the fact that both the Fifth and the Fourteenth Amendments provide that no person shall be deprived of his life without due process of law. Thus the power of the sovereign, both national and state, to take life is recognized by the constitution itself. The fact, as pointed out by the Oklahoma Court of Criminal Appeals, that Congress and at least 32 states have reinstated capital punishment in the wake of Furman effectively rebuts the argument that public opinion with regard to capital punishment has completely changed since the Bill of Rights and the Fourteenth Amendment were adopted. Williams v. State, 542 P. 2d 554 (Okla. Crim. App., 1975).

The essence of the majority view in the Furman case seems to be that capital punishment is constitutionally forbidden whenever the system allows a jury to impose the death penalty in one case and, with no disclosed reason, elect not to impose it in another apparently similar case. Except for that generalization the Furman opinions supply little guidance for the lawmakers or for the courts.

The several states have sought to meet the issue in various ways. A number of them, either by legislative or by judicial decision, have concluded that a mandatory death penalty for certain offenses is a permissible form of capital punishment. State v. Sheppard, 331 A. 2d 142 (Del., 1974); State v. Selman. 300 So. 2d 467 (La., 1974); Fowler v. State, 285 N.C. 90, 203 S.E. 2d 803 (1974), cert. granted, 419 U.S. 963 (1974); Williams v. State, supra (Okla.); Jefferson v. Commonwealth, 214 Va. 747, 204 S.E. 2d 258 (1974).

Other states, including Arkansas, have taken what seems to us to be a reasonable view not precluded by Furman. That view is that all serious felonies of the same kind, such as murder, are not identical either as to the gravity of the offense or as to the moral culpability of the offender. Statutes defining non-capital offenses customarily allow the jury some discretion in the assessment of punishment, such as a sentence to imprisonment ranging from one to twenty-one years. We do not understand Furman to prohibit an exercise of discretion in the imposition or non-imposition of capital punishment, if the choice is made reasonably.

Act 438 requires that the jury first determine whether the defendant is guilty of capital felony. If there is a finding of guilt the jury then hears evidence of aggravating or mitigating circumstances, which are enumerated in the act. (All those circumstances are set forth and discussed in Meal v. State, also decided today.) The jury then retires again and decides whether the punishment is to be death or life imprisonment without parole. The jury must make a written finding with respect to the various aggravating and mitigating circumstances. Hence the basis for the verdict is known and can be compared with the punishment imposed in other cases. That general approach to the problem has been upheld in other states. State v. Dixon, 283 So. 2d 1 (Fla., 1973); Coley v. State, 231 Ga. 829, 204 S.E. 2d 612 (1974); Jurek v. State, 522 S.W. 2d 934 (Tex. Crim. Appr, 1975). We agree with their reasoning.

In the case at bar the jury found three aggravating circumstances: (1) That the defendant was previously convicted of another capital felony or of a felony (in this instance, armed robbery) involving the use or threat of violence to the person; (2) that the defendant in the commission of the capital felony knowingly created a great risk of death to one or more persons in addition to the victim; and (3) that the capital felony was committed for pecuniary gain. The jury found one mitigating circumstance: The youth of the defendant at the time of the commission of the capital felony.

Although the court’s instructions gave the jury the opportunity to find mitigating circumstances other than those enumerated in the statute, no such finding was made. The ’court also explained that the jury’s decision was not to be based solely upon the number of either aggravating or mitigating circumstance, the court observing that just one mitigating circumstance might offset three or more aggravating circumstances. The ultimate issue submitted was whether the jury found beyond a reasonable doubt that sufficient aggravating circumstances existed to justify a sentence of death. We conclude that Act 438 is valid, that the issues were properly submitted to the jury, and that the verdict is sustained by the evidence.

In a related point for reversal the appellant argues that death by electrocution is unconstitutionally cruel. Counsel concede that the Supreme Court has upheld this method of capital punishment. Louisiana ex rel. Francis v. Resweber, 329 U.S. 459 (1947); In re Kemmler, 136 U.S. 436 (1890). It is insisted, however, on the basis of books or articles having to do with capital punishment, that death by electrocution is not necessarily instantaneous and may subject the condemned person to extreme pain.

We are not convinced by this argument. As the court indicated in Kemmler, supra, the constitution prohibits punishments involving torture or other unnecessary cruelty. It is doubtless true that some pain my attend any form of execution, whether by electrocution, hanging, the gas chamber, or the firing squad. But the record contains no proof on the subject, as it did in Kemmler, and we certainly cannot take judicial notice that electrocution is needlessly cruel.

We find no merit in appellant’s argument that the trial judge, in submitting the issue of guilt or innocence, indicated to the jury that he believed the defendant to be guilty. The court’s remarks, taken as a whole, fairly submitted the issue. Specifically, the court correctly stated to the jury that their initial determination “does not fix the punishment, whatsoever. It merely establishes the degree of guilt, if any.” The court went on to add, upon the objection being made: “It [the verdict] can be not guilty, second degree, or capital offense. Return one of those.” Suffice it to say, we do not find the court’s instructions to have been misleading.

On redirect examination Mrs. Welch testified that she thought she was dying, “so I took the blood — I took my finger and I took the blood [Objection by defense counsel] from my body and wrote, ‘Carl killed us.’ ” The trial court sustained the objection and instructed the jury to disregard the statement. It is now contended that the witness’s testimony was so inflammatory that a mistrial should have been declared.

We aie not impressed by this argument. In fact, the court’s ruling was more favorable to the defendant than it need have been. The testimony was competent, as bearing upon the admissibility of Welch’s dying declaration. Moreover, Mrs. Welch was narrating an unbroken sequence of events, beginning with the vicious, unprovoked, murderous attack upon her and her husband and continuing until she was discovered by the telephone repairman, who had already testified. We do not think the trial court was called upon to interrupt the narration at the point of counsel’s objection, on the premise that part of the unbroken sequence of events was too inflammatory to be heard by the jury. For that matter, what the jury had already heard seems to us to be more inflammatory than the testimony now in question.

We find no error in the trial court’s refusal to allow the defense to have the opening and closing argument upon the issue of the punishment to be imposed. The State sought the death penalty. The statute allows that penalty only when the jury finds beyond a reasonable doubt that the aggravating circumstances justify it. Section 41-4710. Hence the State had the burden of proof, which carried the right to open and close. The California case relied upon by the appellant, People v. Bandhauer, 58 Cal. Rptr. 332, 426 P. 2d 900 (1967), is distinguishable, for there the court said that neither side had the burden of proving “that one or the other penalty is the proper one.” We construe our statute as casting the burden of proof upon the State, for if the jury is not convinced beyond a reasonable doubt that capital punishment is justified the sentence to life imprisonment without parole is automatic. Thus the defense has no burden of proof upon the issue.

Finally, it is argued, under the rule laid down in Gerstein v. Pugh, 420 U.S. 103 (1975), that the appellant’s liberty was unlawfully restricted after his arrest, because there was no judicial determination of probable cause for the arrest. Even so, the Gerstein case expressly holds that a conviction will not be vacated on the ground that the defendant was detained pending the trial without a determination of probable cause.

We have, as the statute requires, examined all possible errors that might be prejudicial. Ark. Stat. Ann. § 43-2725 (Supp. 1973). We find that the defendant received a fair trial, free from prejudicial error.

Affirmed.


text:
    Claire Leone RAMSEY v. John Kelmer RAMSEY
    75-95
    531 S.W. 2d 28
    Opinion delivered December 22, 1975

      II. David Blair, for appellant.

      Reed & Blackburn, for appellee.
   John A. Fogleman, Justice.

Appellant was granted a divorce by decree which ordered a property division. She appeals from that portion of the decree which relates to the division of property.

Her First complaint relates to the treatment of certain promissory notes. There were three notes which were made payable to both parties, arising out of the sale of a farm, cattle and equipment to Dr. L. G. Moody and Paul Strecker. In the transaction, the purchasers paid $30,000 cash and the balance of $125,000 was evidenced by promissory notes, secured by a mortgage on the land, cattle and equipment. The notes were payable in annual installments of $6,250 over a period of 20 years. Appellee testified that one note for $55,-000 was for the land, the title to which had been held by the parties jointly before the sale. He contended that another $55,000 note was for cattle of which he was the sole owner. The remaining note for $15,000 was for equipment, according to appellee, who said that he was the sole owner of that, also. He testified that the balance remaining due on these notes was $118,750.

Appellee testified that, in spite of the different ownerships of the realty and personalty, all notes were payable to both appellant and appellee. Appellee had caused the attorney who represented him in the sale to redraft the notes several times before they were executed. Even though appellee testified that the notes for the cattle and equipment were erroneous in this respect, the necessity for correction of the earlier drafts seems to have been directed toward arranging for release of the cattle from the mortgage after five years and the equipment after seven years, without changing the identity of the payees. Apparently appellee took the notes to another attorney for examination before the divorce action was filed, but the record does not reveal that anything further was done about changing these notes.

The chancellor directed that the $55,000 note representing the balance due on the land be divided and awarded appellant one-half of the cattle note less $5,000 and held that appellee was entitled to the $15,000 note without any division. We agree with appellant that the chancellor erred in his treatment of these notes. The chancellor, in announcing his findings, stated that ordinarily a note made payable to a husband and wife jointly would entitle each to one-half on divorce and that he believed the parties were bound by the note, but noted that there was testimony that the cattle belonged to the husband and that the wife would have been entitled to only one-third of the cattle and, since there seemed to be some question about the matter, he allowed the husband one-half of the cattle note plus $5,000 and the wife the balance. He also stated that under a strict construction of the law the parties would each be entitled to one-half of the equipment note, but, since in all probability the equipment was purchased by the husband, he was entitled to the entire note. Later the court said that this was done to compensate for the disparity in value of real estate awarded the respective parties.

These notes, in spite of appellee’s protestations, were held as a tenancy by the entirety. We have long recognized that there may be a tenancy by the entirety in personal property, including choses in action. Union & Mercantile Trust Co. v. Hudson, 147 Ark. 7, 227 S.W. 1; Ratliff v. Ratliff, 237 Ark. 191, 372 S.W. 2d 216; Cross v. Pharr, 215 Ark. 463, 221 S.W. 2d 24. Of course, notes fall within this classification. Jordan v. Jordan, 217 Ark. 30, 228 S.W. 2d 636; Terral v. Terral, 212 Ark. 221, 205 S.W. 2d 198, 1 ALR 2d 1092.

The acquisition of property, whether realty or personalty, by persons who are husband and wife by an instrument running to them conjunctively, without specification of the manner in which they take, usually results in a tenancy by the entirety. Terral v. Terral, supra. See, Jordan v. Jordan, supra. See also, Gladowski v. Felczak, 346 Pa. 660, 31 A. 2d 718, 151 ALR 418 (1943); American Central Insurance Co. v. Whitlock, 122 Fla. 363, 165 S. 380 (1936); Craig v. Bradley, 153 Mo. App. 586, 134 S.W. 1081 (1911); In re Greenwood’s Estate, 201 Mo. App. 39, 208 S.W. 635 (1919); Boland v. McKowen, 189 Mass. 563, 76 N.E. 206 (1905). There is at least a presumption that the taking in such circumstances is by the entirety. In re Holmes’ Estate, 414 Pa. 403, 200 A. 2d 745 (1964); Splaine v. Morrissey, 282 Mass. 217, 184 N.E. 670 (1933); Simon v. St. Louis Union Trust Co., 346 Mo. 146, 139 S.W. 2d 1002 (1940). The fact that the consideration given for the property taken in the two names belonged to the husband only is of little, if any, significance where he is responsible for the property being taken in both names as the presumption is that there was a gift of an interest by the husband to the wife, even though the wife may have no knowledge of the transaction. Lauderdale v. Lauderdale, 96 S. 2d 663 (Fla. App. 1957); In re Parry’s Estate, 188 Pa. 33, 41 A. 448 (1898); In re Holmes’ Estate, supra; Lutticke v. Lutticke, 406 Ill. 181, 92 N.E. 2d 754 (1950); Donovan v. Donovan, 223 Cal. App. 2d 691, 36 Cal. Rptr. 225 (1964). See Terral v. Terral, supra; Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S.W. 57; Black v. Black, 199 Ark. 609, 135 S.W. 2d 837. See also, Harrison v. Knott, 219 Ark. 565, 243 S.W. 2d 642.

Some courts base the tenancy upon an implied consideration that a wife who does not furnish any of the consideration to the third party executing the instrument or conveyance will faithfully perform the marriage vows as long as the marital status exists. King v. King, 286 A. 2d 234 (D.C. Ct. App., 1972); Oxley v. Oxley, 81 U.S. App. D.C. 346, 159 F. 2d 10 (1946); Sebold v. Sebold, 143 U.S. App. D.C. 406, 444 F. 2d 864 (1971). See also, Tingle v. Hornsby, 111 S. 2d 274 (Fla. App., 1959). But it seems that a decree of divorce awarded to the wife in such cases is conclusive of the fact that the consideration has been fully performed. Sebold v. Sebold, supra. Others base the tenancy upon the husband’s obligation, both legal and moral, to provide for the wife. Green v. Green, 237 S.C. 424, 117 S.E. 2d 583 (1960); Darden v. Meadows, 259 Ala. 676, 68 S. 2d 709 (1953); Accord, Carpenter v. Gibson, 104 Ark. 32, 148 S.W. 508; Collins v. Collins, 176 Ark. 12, 2 S.W. 2d 41; Hill v. Hopkins, 198 Ark. 1049, 133 S.W. 2d 634; Spradling v. Spradling, 101 Ark. 451, 142 S.W. 848.

The presumption is strong, and it can be overcome only by clear, positis :, unequivocal, unmistakable, strong, and convincing evidence, partially because the alternative is a resulting trust the establishment of which, under such circumstances, requires that degree of proof. Honeycutt v. Citizens Vational Bank in Gastonia, 242 N.C. 734, 89 S.E. 2d 598 (1955); In re Parry’s Estate, supra; Simon v. St. Louis Union Trust Co., supra; Lauderdale v. Lauderdale, supra; Powell v. Metz, 55 S. 2d 915 (1952); In re Holmes' Estate, supra; Lutticke v. Lutticke, supra. See Stanridge v. Stanridge, 253 Ark. 1004, 490 S.W. 125; Simpson v. Thayer, 214 Ark. 566, 217 S.W. 2d 354; Hubbard v. McMahon, 117 Ark. 563, 176 S.W. 122; Carpenter v. Gibson, supra; Hall v. Cox, 104 Ark. 303, 149 S.W. 80; Mayers v. Lark, 113 Ark. 207, 168 S.W. 1093; Ann. Cas. 1915 C 1094.

Where a note, or a note and mortgage, are made payable to a husband and wife, the same rules and presumptions apply. Salvation Army, Inc. v. Hart, 239 Ind. 1, 154 N.E. 2d 487 (1958); Powell v. Metz, supra; Burke v. Coons, 136 S. 2d 235 (Fla. App. 1962). Delivery to the husband is considered to be delivery to both husband and wife sufficient to make the gift complete. In re Holmes’ Estate, supra. There being no evidence of fraud, appellee is charged with the knowledge of the legal effect of the instruments. Hampshire v. Hampshire, 485 S.W. 2d 314 (Tex. Civ. App. 1972). See also, Donovan v. Donovan, supra; Accord, Belew v. Griffis, 249 Ark. 589, 460 S.W. 2d 80; Pratt v. Metzger, 78 Ark. 177, 95 S.W. 451.

We certainly cannot agree with appellee that his testimony was clear, convincing or cogent evidence that the insertion of appellant’s name on these notes was only a clerical error. Nor do we agree that the notes should be reformed. In the first place, clear, convincing, unequivocal and decisive evidence is required for reformation. McIntyre v. McIntyre, 241 Ark. 623, 410 S.W. 2d 117. In the next place, reformation was not sought in the trial court and the suggestion that the trial court should have reformed the notes first appeared in the brief of appellee, who did not cross-appeal. Since reformation was not an issue in the trial court and is not an issue here, we cannot consider it, and appellee’s right to that relief is doubtful, had the question been timely raised. See Darden v. Meadows, 259 Ala. 676, 68 S. 2d 709 (1953). The failure to correct the note as to payee when the contract drafts were being revised may well have been taken to be a ratification by appellee. See Bogard v. Powell, 209 Ark. 714, 192 S.W. 2d 518.

The chancery court had no power to do anything with the property held by the entirety except to convert it into a tenancy in common. In most states, a decree of divorce in and of itself operates to convert a tenancy by the entirety into a tenancy in common. But this has never been the case in Arkansas. Jenkins v. Jenkins, 219 Ark. 219, 242 S.W. 2d 124 Ark. Stat. Ann. §34-1215 (Repl. 1962), adopted in 1947 to alter this rule of property, only authorizes the chancery court to dissolve such estates upon the rendition of a final decree of divorce. See Killgo v. James, 236 Ark. 537, 367 S.W. 2d 228. The same statute requires that the court, in the division of property so held, treat the parties as tenants in common. We have not countenanced any other disposition of such an estate and have construed the statute rather strictly. See McIntyre v. McIntyre, supra; Yancey v. Yancey, 234 Ark. 1046, 356 S.W. 2d 649; Bebout v. Bebout, 241 Ark. 291, 408 S.W. 2d 480.

It logically follows that the chancellor erred in awarding one party a greater interest than the other in these notes made payable to both. See Yancey v. Yancey, supra. The effect of such a dissolution of an estate by the entirety was treated extensively and logically by the Supreme Court of Oregon in Schafer v. Schafer, 122 Or. 620, 260 Pac. 206, 59 ALR 707 (1927). Even though the decree of divorce in and of itself automatically effected the dissolution in that state, the statute governing the rights of the wife obtaining the divorce in the husband’s property was strikingly similar. That court concluded that to allow the court to do more than convert the tenancy from one by the entirety to one in common, would mutilate or change the legal effect of the decree, which itself was the dissolution of the estate. The Oregon court reasoned that the change in the estate was but the working out of a legal and equitable distribution of property held by the spouses during the existence of the marriage relation, holding that the wife could not be awarded one-third of the one-half interest of the husband as a tenant in common.

Insofar as the Moody and Strecker notes are concerned, the decree is modified to award appellant a one-half interest in each of said notes.

Appellant alleges that there were other errors in the property awards. She points out that she was given no interest in a promissory note of J. P. Davidson and that the chancellor did not take into consideration an indebtedness owed by one Tucker. She correctly asserts that she was entitled to a full one-third of appellee’s property. Ark. Stat. Ann. §34-1214 (Repl. 1962); Bowling v. Bowling, 237 Ark. 199, 372 S.W. 2d 239. She testified that the Davidson note, which was awarded to appellee in the court’s decree, was made to the parties-jointly and that W. P. Tucker owed $2,-000 for cattle sold him on open account. Appellee testified that he was sole owner of the cattle for which the Davidson note was given as well as that sold to Tucker. What we have already said about jointly held notes applies to the Davidson note with equal effect. The chancellor’s effort to equalize a difference between the value of Florida real property awarded the husband and Arkansas real property awarded the wife, all of which had been held as a tenancy by the entirety, by awarding appellee the entire note was inappropriate. The decree is modified to award each of the parties an equal interest in this note.

We cannot say on the record before us that the court erred in failing to award appellant an interest in the Tucker debt. Appellant was awarded certain furniture, household goods and funds in a bank account. Since we are unable to say from the record that appellant did not receive one-third in value of the personal property and since the court specifically asked the attorneys for both parties if he had overlooked anything, and received a negative response, we cannot say that appellant has demonstrated error in this regard.

We do, however, agree that there was a preponderance of the evidence to show that there was a wrongful disposition of personal property by appellee to defeat appellant’s marital interest and that it was error for the court to refuse to consider or make any order concerning items removed by appellee. An extensive enumeration of these items was made by appellant and it was not substantially contradicted. See Carr v. Carr, 226 Ark. 355, 289 S.W. 2d 899. See also, Austin v. Austin, 143 Ark. 222, 220 S.W. 46, Wilson v. Wilson, 163 Ark. 294, 259 S.W. 742.

The real estate in Arkansas and that in Florida were disposed of by the requirement that the parties execute quitclaim deeds consistent with the court’s findings. Appellant has expressed her satisfaction with this dissolution of these estates by the entirety. We are in no position on de novo review to direct the particular disposition to be made of the real estate on the record before us on this appeal.

We have attempted to arrive at a satisfactory modification of the court’s decree to avoid a remand. We are unable to do so because the trial court attempted to do equity between the parties by adjusting differences in real estate values by allowances of personal property and are unable to say what additional allowance should be made on account of property removed by appellee. We are further aware of the fact that payments on the jointly owned notes may have been made during the pendency of this litigation and that some accounting between the parties will be necessary. We have no satisfactory alternative to a remand of this case for the entry of a decree and further proceedings consistent with this opinion and for a determination what additional personal property award should be made to appellant and whether a different decree should be entered as to the Arkansas and Florida real estate. Cf. Yancey v. Yancey, supra.

The decree is reversed and the cause remanded.

       The effect of Schafer and the validity of its rationale is not affected by such later decisions as Siebert v. Sieberl, 184 Or. 496, 199 P. 2d 659 (1948) and Morrow v. Morrow, 187 Or. 161, 210 P. 2d 101 (1949), because of intervening significant statutory changes in that state.


author: Conley Byrd, Justice. John A. Fogleman, Justice,

text:
    LITTLE ROCK DISTRIBUTING COMPANY v. OUACHITA COUNTY CIRCUIT COURT, Second Division, Melvin Mayfield, Judge
    75-177
    531 S.W. 2d 33
    Opinion delivered December 22, 1975

      Barber, McCaskill, Amsler & Jones, for petitioner.

      Streett & Faulkner, P.A., for respondent.
   Conley Byrd, Justice.

At issue in this petition for writ of prohibition is the sufficiency of the service of summons upon petitioner, Little Rock Distributing Company. The trial court denied petitioner’s motion to quash the service.

The record shows that a summons was issued from the Circuit Court of Ouachita County directing the Sheriff of Pulaski County to summons “Little Rock Distributing Company, by serving Warren E. Wood, agent for service for Little Rock Distributing Company.” The process deputy did not serve the summons upon Warren E. Wood but instead went to the office of Little Rock Distributing Company and served the same upon one Loneita Shoemaker. The return on the summons, signed by “George Garrett, D.S.” stated that the summons had been served by “delivering a copy, and stating the substance thereof, to the within named Little Rock Distributing Company by serving Mrs. Shoemaker V-Pres. at her usual place of employment.”

Mrs. Shoemaker testified.for the plaintiff. She stated that she earns $180 per week. She types, does data processing, bookkeeping, filing and answers the telephone. She also takes orders on the telephone and occasionally opens the mail. She is not an officer of the corporation. Mr. Leibs, the president of Little Rock Distributing Company, is her boss, and when he is not there, a Mr. Nazari is the one in charge. Mr. Leibs does not notify her when he leaves the office, and she did not know where he was on the day the process was served. When Mr. Leibs leaves town he makes his own travel arrangements. She admitted receiving the summons from the deputy sheriff on September 17, 1974. She said the deputy first tried to hand it to another girl and then told her that one of them had to accept it. Not knowing what to do with the process, which she did not read, she laid it on Mr. Leibs’ desk. Subsequently, when she found, the paper back on her desk, she filed it in the insurance file. She does not know who put it on her desk. Thereafter, she took it upon herself to ignore the summons. She did not classify herself as an office manager.

Mr. Leibs did not know about the summons until April 14, 1975. At that time he could not state whether he had been in or out of the office on September 17, 1974, when the summons was served. He said Mrs. Shoemaker was only an employee. She was not and had never been an officer or director in the company.

The respondent, to sustain the sufficiency of the service of the summons, relies upon Ark. Stat. Ann. § 27-610 (Repl. 1962), which provides:

“All actions for damages for personal injury or death by wrongful act shall be brought in the county where the accident occurred which caused the injury or death or in the county where the person injured or killed resided at the time of injury, and provided further that in all such actions service of summons may be had upon any party to such action, in addition to other methods now provided by law, by service of summons upon any agent who is a regular employee of such party, and on duty at the time of such service.”

In making this argument, however, the respondent concedes that the term “any agent who is a regular employee” contemplates something more than a mere “employee.” With this concession we must agree, for the general rule is “that when the Legislature uses words which have received a judicial interpretation, words which have a fixed and well-known legal significance, they are presumed to have been used in that sense,” State v. Jones, 91 Ark. 5, 120 S.W. 154 (1909). In Parker v. Wilson, 99 Ark. 344, 137 S.W. 926 (1911), we defined agency as follows:

“. . . An agency is defined to be ‘a contract, either express or implied, by which one of the parties confides to the other the management of some business to be transacted in his name, or on his account, by which that other assumes to do the business, and to render an account of it’.”

In 53 Am. Jur. 2d Master and Servant §3 (1970), the distinction between an agent and a servant is stated in this language:

“As a general rule, a servant is employed to perform certain acts in a way that is or may be specified, and he may not use his discretion as to the means to accomplish the end for which he is employed. This being so, the service performable by a servant for his employer may be inferior in degree to work done by an agent for his principal.”

As can be seen from the foregoing, the issue of whether the summons should be quashed turns upon a question of fact. In such situations we have consistently held that prohibition will not lie even though this Court “might differ most seriously from the view taken by the trial court.” See Robinson v. Means, Judge, 192 Ark. 816, 95 S.W. 2d 98 (1936). See also Robinson v. Bossinger, 195 Ark. 445, 112 S.W. 2d 637 (1938), which quashed the service of process on appeal.

For the reasons stated the Writ is denied.

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

John A. Fogleman, Justice,

dissenting. I would grant the writ because I consider the facts and the evidence to be uncontested and find no substantial evidence that Mrs. Shoemaker is an agent of petitioner in the sense of Ark. Stat. Ann. § 27-610 (Repl. 1962). The rule applied in the cases cited in the majority opinion governs only those cases in which there is a contested question of fact or in which the fact finder may draw different inferences from undisputed evidence. See Arkansas Democrat v. Means, Judge, 190 Ark. 948, 82 S.W. 2d 856; Finley v. Moose, 74 Ark. 217, 85 S.W. 238. It seems to me that it should be a different matter in a case such as this and the writ should issue. Equitable Assurance Soc. v. Mann, 189 Ark. 751, 755 S.W. 2d 232. See also, 73 CJS 118, Prohibition § 37.

I am authorized to state that Chief Justice Harris and Mr. Justice Jones join in this opinion.