text:
    Roscoe PATE et ux v. R. D. JUNKIN, Hattis FREEMAN, J. T. PATTON, and Freeman D. BOOTH, Trustees
    5-6108
    489 S.W. 2d 802
    Opinion delivered February 5, 1973

      Brown, Compton ¿r Prewett, for appellants.

      Mahony ir Yocum, for appellees.
   Frank Holt, Justice.

This appeal involves a title to 100 acres of land. Appellees, bank trustees, claim title to the land by virtue of a foreclosure suit and resulting deed in 1935. Also, appellees, with this color of title, have paid taxes on the property for more than 35 years. Appellants claim title by adverse possession. Appellees instituted an action to quiet title against appellants and others who are not parties to this appeal. The court found that at no time were the appellants in open, hostile, notorious or continuous possession of any part of the lands sufficient to establish title by adverse possession and for more than seven years appellees have under color of title paid taxes on the lands and had sole and exclusive possession thereof. Accordingly, the chancellor quieted and confirmed title to the lands in the appellees. For reversal the appellants contend that the court’s finding is not supported by substantial (a preponderance of the) evidence. The chancellor was correct.

In 1935 the property was acquired by the bank from Pate’s father through foreclosure proceedings. Appellants continued living on a 7.5 acre tract adjacent to the 100 acres from that date until approximately 1960 when they removed from the farm because of Pate’s health. According to Pate, he had approximately 60 acres under cultivation until his health problem occurred in 1955. He claimed that he "might have cultivated 39 acres sometimes” of a 40 acre tract. On another 40 acre tract, he said he "had about 15 or 16 acres of that under fence” and grew "everything a farmer is supposed to grow; peas, beans, cotton, corn, potatoes, soybeans.” He used “outside the old rail fence” on this 40 acre tract for pasture. He used the south 20 acres primarily for pasture. He maintained a dry house, potato house, mule barn, woodshed and several cotton houses spread over the land. He grazed his cattle on the land until 1969 and presently raises hogs there. The impairment in his health occurred in 1955, which reduced his farming activities to truck farming until about 1961. The acreage in his truck farming cultivation ranged from eight to fifteen acres. His stock ran free on the lands. Pate admitted that at all times he was aware of and recognized appellees’ claim of title to the lands and refrained from disposing of any timber or any claimed interest in the lands. In effect, he testified that he had not farmed any of the property in 15 years and had not truck farmed any of it since he moved from the area approximately 10 years ago.

Appellees adduced evidence that since 1950 there were no improvements or enclosures on the lands. One witness described it as being wild and unimproved and returned to a state of nature. For as long as 20 years the land has been unenclosed, unimproved and completely covered with pine timber anywhere from 15 to 22 years of age. It appears that all of the fences were in such a state of disrepair that only portions remained in place or were visible on the ground. Apparently these were the original fences that existed 35 years previously and had not been maintained.

It is well established that the burden of proof is upon the trespasser to show his adverse occupancy for the required statutory seven years. Maney v. Dennison, 110 Ark. 571, 163 S.W. 783 (1914), and Knight v. Hardin, 249 Ark. 1017, 463 S.W. 2d 673 (1971). Furthermore, as we said in Hill v. Surratt, 240 Ark. 122, 398 S.W. 2d 225 (1966):

"The quantum of proof necessary for a trespasser to establish title to a tract of land by adverse occupancy is greater where he has no color of title. It is well settled that where one is holding without color of title, as in the case at bar, the trespassing claimant must show pedal or actual possession to the extent of the claimed boundaries for the required seven years. ****
"The seasonable cultivation of patches of these unenclosed and undefined lands, without color of title, is insufficient to constitute the continuous, pedal, and actual possession to the extent of the claimed boundaries for the seven years that the law requires of an adverse possessor.”

See, also, Moore v. Anthony-Jones Lbr. Co., 252 Ark. 883, 481 S.W. 2d 707 (1972). Ark. Stat. Ann. § 37-101 et seq. (Repl. 1962).

In the case at bar the appellants are claiming the title by adverse possession to the 100 acres without any color of title. They never lived on the property nor paid any taxes. They used parts of the lands for various purposes. Moreover, Pate admitted he recognized appellees’ title to the lands and refrained from disposing of any timber or any alleged interest in the lands. In the circumstances we are definitely of the view that the chancellor’s finding was not against the preponderance of the evidence. The appellants, as trespassers, have not demonstrated the necessary quantum of proof to establish their asserted title by adverse occupancy.

Since we are affirming the chancellor’s decree quieting title in the appellees and dismissing appellants’ claim of adverse possession, it becomes unnecessary for us to discuss the appellees’ cross-appeal that the court erred in setting aside a default judgment in their favor and then permit the appellants to present their claim for adverse possession.

Affirmed.


source: Caselaw Access Project

author: H. H. McKenzie, Special Justice. David Soloman, Special Justice

license: Public Domain

text:
    Jimmie “Red” JONES, Auditor of the State of Arkansas v. James Orville CHENEY
    5-5931
    489 S.W. 2d 785
    Opinion delivered February 2, 1973

      Ray Thornton, Atty. Gen., by: Milton Lueken, Asst. Atty. Gen., for appellant.

      Sam Robinson, for appellee.
    Brief of Amicus Curiae by Henry Woods, President, Arkansas Bar Association.
   H. H. McKenzie, Special Justice.

This suit was instituted on May 26th, 1970, by the appellee to obtain retirement benefits under the provisions of Act 148 of the Arkansas General Assembly for 1965. The appellant resisted the claim on the ground that the appellee was not qualified because he did not serve ten years on any one of the commissions named in Act 167 of the Arkansas General Assembly for 1967. The appellee, however, contends his rights had become vested prior to the adoption of Act 167 and was, therefore, entitled to retirement benefits.

The litigation was commenced in Pulaski Chancery Court on a petition for a writ of mandamus, but on demurrer it was transferred to the Circuit Court where, on December 14, 1970, appellant’s second demurrer was overruled. On September 1, 1971, the Circuit Court rendered a mandamus order directing the appellant to pay appellee the retirement benefits provided by Act 148 of 1965. This appeal followed.

The issue, upon undisputed facts, is whether the appellee’s rights had become vested prior to the adoption of Act 167 of 1967. If this question is answered in the affirmative, the Trial Court’s ruling must be affirmed, whereas, if the proper answer is a negative one, then the appellee’s prayer for retirement pay should be denied.

Act 148 of 1965, codified as Ark. Stat. Ann. §§ 12-2701 — 12-2709 (Repl. 1968), established the Quasi-Judicial Retirement System for the State of Arkansas. This Act provides that a person who has been a member of the Arkansas Public Service Commission, the Arkansas Workmen’s Compensation Commission, or the Arkansas Commerce Commission may, if he meets certain enumerated requirements, become eligible at age 65 for a straight life annuity payable monthly. The provision of Act 148 of 1965 that would have been applicable to Mr. Cheney, had he been of retirement age when the 1967 Act was passed, is Ark. Stat. Ann. § 12-2705 (a) (6) which provides as follows:

12-2705. Eligibility for annuity — Age of retirement —Tenure of service — (a) Members of the system who meet the following requirements shall be eligible for a straight life annuity payable monthly:
(6) Upon reaching age sixty-five (65) after having served on one or more of the following: the Arkansas Workmen’s Compensation Commission, the Arkansas Commerce Commission, the Arkansas Public Service Commission (or successors to such tribunals) and in other appointive or elective positions of Arkansas State government for a combined total period of not less than fifteen (15) years.

In 1967, prior to Mr. Cheney’s 65th birthday, the Legislature amended Act 148 of 1965 by the passage of Act 167 of 1967, codified as Ark. Stat. Ann. § 12-2705.1-2. This latter Act provides in part as follows:

12-2705.2 Limitations on eligibility to receive retirement benefits. — No present or future member of the Quasi-Judicial Retirement System established under the provisions of Act 148 of 1965 (§§ 12-2701 — 12-2709) shall be eligible to receive retirement benefits under said System:
(c) Unless such person has been a member of the Arkansas Workmen’s Compensation Commission, the Arkansas Commerce Commission, or the Arkansas Public Service Commission, for a period of not less than ten (10) years. Provided, that if any member of the Quasi-Judicial Retirement System shall be disqualified from receiving benefits under said System by virtue of this Subsection, then such person may, upon application therefor, transfer his years of creditable service as an employee of the State of Arkansas, to the State Employees Retirement System in the manner authorized by law.

Appellee served more than eight years as State Senator, more than nine years as State Revenue Commissioner, and more than three years as a member of the Commerce Commission, totaling more than twenty years, all for the State of Arkansas. Over fifteen years of such time was served prior to the adoption of Act 167 of 1967. At the time he retired from the Commerce Commission, appellee was in all respects qualified under Act 148 of 1965 to receive retirement benefits except the attainment of the age of 65, — the only requirement over which he had no control. He did not, however, serve ten years on any one of the Commissions named in Act 167 of 1967. Cheney made proper, sufficient, and legal contributions to the Quasi-Judicial Retirement System as provided by law, and became sixty-five years of age on January 30th, 1970. Appellee applied for retirement benefits under Act 148 of 1965, and filed the required evidences of age and service, but appellant refused to make such payments, taking the position that because appellee had not served ten years on one of the commissions named in Act 167 of 1967, appellee is ineligible for benefits provided by Act 148 of 1965.

When do rights under the System become vested is the critical question presented, — in effect resolving itself into one of law of first impression in this state, and differing from that in the later case of Pyle v. Webb, No. 5957, in which we have also today rendered our opinion. There the member (Webb) had fulfilled all legal requirements under the Teacher Retirement System, including that of age, having been actually receiving annuity payments when the amending statute was enacted, causing his compensation to be discontinued, thus becoming the subject of controversy.

It is important to consider the characteristics of the Quasi-Judicial Retirement System which provides for a participation on a voluntary basis. Ark. Stat. § 12-2701 (b) and 12-2708. The system is entirely dependent on contributions from its members without any matching of contributions from the State’s general revenues, Ark. Stat. § 12-2705 — 4, except as directed by Ark. Stat. 12-2707 (Repl. 1968). § 12-2707 requires a transfer of funds held by the three commissions named in § 12-2705 (a) (6) to the Retirement System fund to provide appropriate annuity requirements for the financial stability of the retirement system. It is urged in the Brief of Amicus Curiae that a distinction should be made between a pension fund and a retirement system based on voluntary contributions of the employee. It would have certainly been helpful if the Courts had years ago clearly made the suggested distinction, as that would indeed facilitate interpretation of the various judicial decisions, which must be considered properly to decide the question presented in the present case. The retirement pay received by a retired employee or pensioner (whichever term is used) under a system based on voluntary contributions of the employee, represents delayed compensation for services rendered in the past due under a contractual obligation inuring to his benefit, and is not a gratuitous allowance in which the pensioner has no vested right. In Daggett v. St. Francis Levee Dist., 226 Ark. 545, 291 S.W. 2d 254 (1956) it was held that a retirement allowance financed over a period of years by the joint contributions of the employer and employee represents compensation rather than a mere gratuity. See also Chandler v. Board of Trustees of the Teacher Retirement System of the State of Arkansas, 236 Ark. 256, 365 S.W. 2d 447 (1963).

Technically, a pension constitutes a “mere gratuity” subject to modification or repeal as opposed to a vested right not subject to such impairment. Hickey v. Pittsburgh Pension Board, 378 Pa. 300, 106 A 2d 233 (1954; W. C. Smith v. City of Dothan et al, 188 So. 2d 532 (1966 Alabama); Board of Trustees of the Police Pension and Retirement System of Tulsa v. Kern, 366 P. 2d 415 (Oklahoma 1961); Bordens v. Board of Trustees of Judges Retirement System, 174 N. E. 2d 169 (Illinois 1961). Whether the plan envisioned by the Legislature, as reflected by the wording of Act 148 of 1965, was to create a “pension fund” or a “retirement system” is, according to our perception of its legal effect, immaterial and dependent upon a choice of words. We say Act 148 of 1965, was to create a voluntary contribution system — contractual in nature. If a label is required, we would refer to the plan as a “Retirement System,” providing a source of income to the retiree. This for the reason the word “retirement,” in the view we take, is more expressive of the legislative intent and the legal effect of Act 148 than the word “pension.”

The Constitution of the United States § 10 Article 1, provides that no state shall pass any law impairing the obligations of contracts, while our Arkansas Constitution Article 2 § 17 provides “No bill of attainder, ex post facto law or law impairing the obligation of contracts shall ever be passed.”

The classes of contracts entered into voluntarily that are based on the assent of the parties expressly or impliedly given as opposed to those that are compulsory, are protected by the Constitutional provisions against impairing the obligation of a contract. In Anders v. Nicholson, 111 Fla. 849, 150 So. 639 (1933), is was held under a municipal ordinance providing for pensions to employees who should elect to participate in, and contribute to, the pension fund, that a public employee by acceptance of the terms and conditions of the enactment entered into a contractual relationship with the city, which entitled him to receive certain benefits, and his rights accruing under the statute could not be abrogated by any subsequent legislation. In Commissioner of Labor v. Renfroe, AR 253 No. 9, Page 367 (10-30-72) under dissimilar facts to those existing in the principal case, this Court said:

“Retirement pay is generally considered not to be a pension or gratuity but as adjusted compensation presently earned by an employee but payable in the future. (P. 371).”

It would appear that much of the confusion created by the decisions of various courts throughout the United States in dealing with this subject is primarily due to the fact that annuity funds arising under retirement systems are frequently referred to as pension funds, and the payments therefrom as pensions. Where those terms are used interchangeably in this opinion, it is not because we endorse the nomenclature, but because they are so referred to in some of the decisions cited herein.

“Pensions and retirement allowances, when provided by law, constitute a part of the officer’s compensation. Some of the bases for determining whether a fund is a pension or annuity fund are the amount of contributions, and whether the deductions are compulsory or voluntary; but it has been pointed out that the courts frequently have failed to use distinguishing terminology in discussing pensions and annuities to public officers or employees, and that an annuity fund is frequently referred to as a ‘pension fund’ and payments therefrom as ‘pensions.’ ” 67 C.J.S. § 92b. page 332. See also 60 Am Jur 2d § 2.pages 878-80.

Appellee voluntarily accepted the provisions of the 1965 Act. He made all the required payments which constituted his contribution to the retirement fund. This had the effect of appellee’s having received his full salary and returning a part to meet his share of the contribution to the retirement fund. The deducted sums belonged to him and were withheld through his agency and agreement. The consideration for his so doing was set forth in the 1965 Act. Now to hold the 1967 Act effective against appellee would deprive him of his constitutional right to have his relationship remain unimpaired.

Appellee relies strongly (we believe rightfully so) on the case of Hickey v. Pittsburgh Pension Board, 378 Pa. 300, 106 A 2d, 233 (1954). This case is cited many times as an authority in the numerous decisions involving pensions and retirement annuities. At the age of twenty-eight years, Hickey started to work for the City of Pittsburgh on May 10th, 1910, and completed the required twenty years of service on May 10th, 1930. In 1915, the Legislature of Pennsylvania passed a pension law providing certain retirement benefits when an employee had reached sixty years of age after having worked for the city twenty years. In 1933, the Legislature amended the 1915 Act before Hickey became sixty years of age. In the principal case, the Arkansas Legislature amended the 1965 Act in 1967 before Cheney reached the eligible age of sixty-five years. When the Pennsylvania law was amended, Hickey had already served his required twenty years, and when the Arkansas law was amended in 1967, Cheney had already served his required time under the 1965 Statute. In January, 1947, Hickey became sixty years of age, and his retirement payments were started. The 1933 Act in Hickey, supra provided that if a pensioner worked for the county, the Board had authority to suspend the pension payments. When the 1933 Act was passed, Hickey had completed twenty-three years of service as a city employee, and had made contributions into the pension fund for more than seventeen years. He continued to work for the City until February, 1952, when he started to work for the county, resulting in the Pension Board discontinuing payments to him under the supposed authority of the 1933 Act. Hickey filed a complaint in mandamus to compel the Pension Board to pay him the pension installments regardless of other employment. The Court below dismissed the complaint, and Hickey appealed. The appellate court reversed, holding that Hickey’s rights became vested when he completed twenty years of service on May 10th, 1930, and had made all the material pension contributions. This vested right was personal property to be held until Hickey became sixty years of age in January, 1947, and the Legislature could not after May 10th, 1930, alter Hickey’s rights.

This Court concludes the rule set forth in Hickey, supra is sound, fair, and just, and should be adopted in the principal case. We hold that Cheney’s rights became firmly vested when he fulfilled the service requirements, which was prior to the passage of the 1967 Act. Notwithstanding Retirement Bd. v. McGovern, 316 Pa. 161, 174 A400 (1934) cited in Hickey, supra seems to hold the Legislature does have the power at any time subsequent to the passage of the Act creating the system to make changes in the law so as to render intact the actuarial soundness of the system (also 52 ALR 2d No. 30, P. 476), Hickey, supra clearly holds the Legislature may strengthen the actuarial fibers, but it cannot break the bonds of contractual obligations, (emphasis supplied) The permissible changes, amendments and alterations provided for by the Legislature can apply only to conditions in the future, and never to the past. We say that is the better rationale to apply in the present case and the one we adopt; so that after appellee’s rights became vested by his having met the service requirements, his entitlements could not thereafter without his consent be affected by any future enactment, — not by the 1967 Act. Yeazell v. Copuis, (Arizona 1935) 402 P 2d 541, in which there is demonstrated the wide diversity of court rulings throughout the states on the various aspects of the retirement or pension laws and particularly as to when the employee’s or member’s rights vest. See also Bordens v. Board of Trustees of Judges Retirement System, 174 N.E. 2d 169 (Illinois 1961). In the instant case, there is no contention or proof that the 1967 Act “strengthens the actuarial fibers” of the system. Had Cheney discontinued his voluntary contributions or severed his employment prior to fulfilling his service requirement under the 1965 Act, he would have lost his rights under the Retirement System, but no such violation occurred. When he fulfilled the contributions and service requirements, his annuity or retirement benefits were then assured upon his attaining sixty-five years of age, and should have been allowed when he reached that age. Considering Hickey, supra as being nearly on all fours with the case at issue, and being impressed with some of the statements appearing therein, we quote:

“In 1934 we said in the case of Retirement Board of Allegheny County v. McGovern, 316 Pa 161, 177, 174 A 400, 408:
‘The Legislature, in effect, makes this offer to the employee: The state or municipality will contribute so much money to a fund and you will contribute to the same fund for a given time on the basis of service performed.....It is difficult to understand where this relation lacks the elements of an executory contract if the employee and the state have directly or indirectly made any payments on account of it.’
Further,
‘Retirement pay is defined as ‘adjusted compensation’ presently earned, which, with contributions from employees, is payable in the future.’

In 1939 we said in the case of McBride v. Allegheny County Retirement Board, 330 Pa 402, 199 A 130, 133:

‘Our act establishing the county employees’ retirement system, and also the acts providing for retirement of state employees, employees of cities of the first class, teachers, and motor police, recognize the employee as being a party to the contract.’
If Hickey is a party to a contract the Legislature may not impair that contract. Hickey agreed to work for the City 20 years and to pay certain sums into the Pension Fund. He has fulfilled those conditions. The City agreed, in its turn, to pay Hickey a pension or compensation for the remainder of his life when he reached his 60th year. Shutting off the pension because he obtained employment elsewhere is refusal on the part of the Pension Fund to abide by its contract. If this contract had been entered into between a private individual and a private corporation it is unquestioned that the Legislature could not impose an additional condition for its fulfillment. The law does not change because one of the parties is a governmental agency.” 52 ALR 2d 430 et seq. (P. 434).

A refusal to now pay appellee the retirement pay due him is a refusal on the part of the Retirement System to abide by the terms of the Contract.

There are some recent cases, primarily from California, that hold an employee obtains vested rights in a pension fund upon the acceptance of employment. See e.g. Chapin v. City Commissioner of Fresno, 149 Cal. App. 2d 40, 307 P2d 657; and Abbott v. San Diego, 165 Cal. App. 2d 511, 332 P 2d 324; which, although involving rights under a city charter, in effect holds that rights arising before the happening of a contingency making the pension payable, cannot be constitutionally abolished by subsequent changes in the law. The California Supreme Court has consistently held that it is a general and well recognized rule that pension provisions shall be liberally construed in favor of the applicant. Gibson v. City of San Diego, 25 Cal. 2d 930, 935, 156 P2d 737, 740; Lyons v. Hoolver, 41 Cal. 2d. . . , 258 P2d 4; McKeag v. Bd. of Pensions Com’rs., 21 Cal 2d 486, 390-132 P2d 198. Inasmuch as Cheney was not required under the 1965 Act to be a member of any Quasi-Judicial Tribunal at the time of filing for a retirement annuity (Ark. Stat. 12-2706), and since we hold that Cheney’s rights became vested prior to the enactment of the 1967 Act, the Act cannot be construed constitutionally to now deprive him of his retirement benefits under the 1965 Act.

“Rights are vested when the right to enjoyment, present or prospective, has become the property of some particular person or persons as a present interest.” 16 CJS Constitutional Law § 215, page 1173.

Courts have consistently held that retroactive laws are invalid only if they impair the obligations of contracts or rights accruing thereunder, and, therefore, infringe on certain vested rights. Talkington v. Turnbaw, 190 Ark. 1138, 83 S.W. 2d 71 (1935), Coco v. Miller, 193 Ark. 999, 104 S.W. 2d 209 (1937), and Gillioz v. Kincannon, 213 Ark. 1010, 214 S.W. 2d 212 (1948). Cheney’s rights were clearly defined in Act 148 of 1965 and his rights became consummate when he fulfilled the service requirements created by the Act.

The rights of anyone electing after the effective date of the 1967 Act to become a member of the retirement system would, of course, be governed by the law as so amended. Cross v. Graham, 224 Ark. 277, 272 S.W. 2d 682 (1954). Accordingly, there is no basis on which to classify the 1967 Act as ex post facto legislation. It was certainly not within the constitutional power of the legislature to enact legislation which operated retroactively so as to affect the contractual relationship between the Retirement System and Cheney created before the passage of the 1967 Act, as the 1965 Act contained no reservation permitting any such change. The constitutional provision prohibiting the passage of laws impairing obligations of contracts applies to contracts, not only between individuals, but also to those made by the state or by one of its agencies when authorized by law. W. C. Smith v. City of Dothan, et al, supra.

Basically, appellant simply argues that chronology should control, but we are not impressed with the reasorting that just because Cheney was not 65 years of age (a contingency over which he had no control) he should be deprived of his rights fixed by the 1965 statute,— rights to which he was contractually entitled under that act to enjoy when he became 65. Such deprivation would be a unilateral abolishment of his entitlement.

Found in 52 ALR 2d, page 437, et seq. is a rather exhaustive annotation on the subject of “Vested rights of pensioner to pension,” which elaborates particularly as to when and under what conditions a pensioner’s rights actually vest. These general statements are made by the author:

“Development of the law on the question under annotation has been long and tortuous, reflecting the increasing pressure placed upon the judiciary by the evolution of the now generally accepted theory that pensions are a part of the compensation of an employee to which, under ordinary circumstances, he is as much entitled as he is to the wages paid him for the work he has actually performed.”
“There is general agreement among the courts in various jurisdictions that an employee who is eligible for a pension has rights therein which are ‘vested’ in the sense that authorities administering the pension system cannot deny him the pension, or alter the amounts of his pension payment except in accordance with the express or implied provisions of the pension statute.” 52 ALR 2d P. 441.
“In a number of jurisdictions it is held that, where participation in a statutory public employees’ pension system calling for employee contributions is on a voluntary basis, the relationship between the system and the participating employee is contractual, and legislative abrogation of the employee’s contractual rights is barred.” 52 ALR 2d 443.

In New Jersey it was held:

“...And the ‘no vested rights’ rule has been held to apply only to statutory pension systems which either do not require employee contributions, or require such contributions on a compulsory basis. Thus, in the leading case of Ball v. Teachers’ Retirement Fund (1904) 71 NJL 64, 58 A 111, it was held that, under a statute providing for a teachers’ retirement fund which made it optional with the teachers to come under its provisions and to have a certain amount deducted from their monthly salary, the legal relation between teachers who had accepted the provisions of the statute and the board of trustees of the retirement fund was contractual, the terms of the contract to be ascertained by reference to the statute; the contract, it was said, could not be altered without the consent of both parties thereto, and without a sufficient consideration. Having taken this view, the court ruled that a statute enacted after a teacher’s election to participate in the retirement fund, operating to make the retirement of a teacher dependent upon the approval of the board of trustees, rather than (as under the earlier statute) merely upon the teacher’s request, did not affect existing contracts, as it was an attempt to impair the obligation thereof, and thus was beyond the power of the legislature.” 52 ALR 2d 467.

This opinion will not be unduly prolonged to analyze or distinguish the cases from other jurisdictions that take the view we have expressed in aligning Arkansas with the minority rule. Neither will we comment upon the numerous cases supporting the majority rule that we do not follow, being to the effect that notwithstanding contributions made by the employee, whether compulsory or voluntary, his rights do not become vested until all requirements of the statute have been met, and he is entitled to retirement allowances. We have considered all appellant’s citations of authority as well as many other cases not cited, and hold under the minority rule, that appellee’s right became vested when he fulfilled the service requirements under Act 148 of 1965, before the passage of Act 167 of 1967, which was enacted prior to appellee’s becoming 65 years old. Having attained that age when he applied for benefits, appellee is entitled to retirement pay provided by the 1965 Act, and as directed by the Mandamus Order of the Circuit Court.

Affirmed.

Ross, James A., Special C. J., and Arnold, Richard L., Reid, Richard, McAllister, A. D., Rieves, Elton A., Special JJ., concur. Soloman, David, Special J., dissents.

David Soloman, Special Justice

dissenting. I respectfully dissent from the conclusions reached by the majority and would reverse the Pulaski County Circuit Court.

My reasoning does not require a distinction of the type of plan involved herein — contributory, non-contributory, mandatory, voluntary, or any other. Simply, my basis for dissent is the fact that any type of plan involving employees of the State of Arkansas has inherent in it the right and ability of the State to alter the plan prior to the recipient actually receiving benefits thereunder, or rather becoming entitled thereto based on the then existing law. Although we use the word “vesting”, and it might be the most appropriate, I do not think the member or recipient has reached this pinnacle until all the conditions have been achieved on his part under the then existing law. Up until this time the State of Arkansas acting through the legislative process can amend, alter and change the conditions under which the recipient participates — no “vesting”.

The distinction in my reasoning is that the governmental process has created a condition or contract, but implicit and a part thereof is that the State is not subject to the same rules as a private individual or private corporate entity. The philosophy of our government necessarily is that the future is subject to change, and that rigid processes must bend when the determination of such need is made by the appropriate governmental authorities. To me this is most true in the pension or retirement plans.

Admittedly there is a great conflict in the State and Federal Courts on this issue, and it is possible to reach most any conclusion and to find authority for this conclusion. The majority opinion has given attention to these many distinctions and conflicts. My reasoning is that since Appellee had not fulfilled all of the requirements on his part at the time the amendment to the plan became a law, he is governed by the law in effect when he had fulfilled all the requirements.

The Court in Creps v. Board of Firemens Relief and Retirement Fund, Trustees of Amarillo, Texas, 456 S.W. 2d 434 (1970) expressed my reasoning when it said:

“The firemen here had no vested property right in the pension fund that is necessary for the invocation of constitutional protection. Until the firemen, under the law, had a statutory right of refund or a right to receive a pension therefrom, their right in the fund was only an expectancy based upon, not only their continued employment for the required number of years, but also the continued existence of the law which is subject to revision, modification or complete abrogation by the Legislature.”

As stated I would reverse the lower Court and enter judgment for the Appellant.


author: David Soloman, Special Justice.

text:
    Hoyte R. PYLE, et al v. John B. WEBB
    5-5957
    489 S.W. 2d 796
    Opinion delivered February 2, 1973

      Warren ér Bullion, for appellants.

      Gene Worsham, for appellee.
   David Soloman, Special Justice.

Appellee brought this action against Appellants, who constitute the Board of Directors of the Teacher Retirement System of the State of Arkansas and its Executive Director.

Appellee was a public school teacher in Arkansas until 1959, when he became an employee of the Arkansas Department of Education. At this time he was contributing to the Teachers Retirement System, which he continued to do until 1961. Then his agency in the Department of Education was placed in another state agency, and this terminated his rights to make contributions to the retirement system, the job classification being other than a “Teacher” under Act 93 of 1957 as Amended.

Appellee became sixty years of age on January 31st, 1964, and applied for retirement benefits effective July 1st, 1964, having twenty-nine years service under the Teacher Retirement System. Appellants approved the application and made regular monthly annuity payments from July 1st, 1964. Appellee continued his employment with the State of Arkansas, and his agency is still not a part of the Arkansas Department of Education. In 1964 Appellee was not eligible for membership in the State Employees Retirement System.

Act 624 of 1969 placed a limitation on persons receiving annuities from the Teachers Retirement System who were employed by the State of Arkansas in a position covered by the State Employees Retirement System. Appellee’s position was covered by the State Employees Retirement System by Act 480 of 1965, at a time when he was drawing his Teacher Retirement annuity.

Appellants discontinued the annuity payments to Appellee effective July 1st, 1969, under the authority of Act 624 of 1969, since Appellee worked full time for the State of Arkansas. Appellee then instituted this action, seeking a Declaratory Judgment construing his' rights under the Teachérs Retirement System, and for judgment for his annuity payments.

The Pulaski Circuit Court in the Declaratory Judgment action determined that Appellee’s rights to the annuity under the Teachers Retirement System vested in 1964, prior to the legislative action in 1969, and could not be divested by this subsequent legislation. Thereupon, Appellee, was given judgment for the amount of the annuity payments unpaid after July 1st, 1969, and this Appeal resulted.

The question confronting this Court stated as simply as possible is:

“Once a member of the Teachers Retirement System qualifies for an annuity, can subsequent legislative action remove the member’s qualifications?”

Although we find no cases in this jurisdiction directly in point, and although we find a conflict in the answer from other jurisdictions, we have reached the conclusion that the Circuit Court correctly decided this matter and should be affirmed.

An attempt has been made to distinguish between the pension plans under which voluntary contributions are made by the member, or involuntary contributions are made as a part of employment; or to distinguish between pension plans which are “money purchase plans” or “benefit formula plans”; or to distinguish between pensions and retirement benefits. We feel none of these distinctions have any bearing in this case. Plans in which both Employer and Employee contribute have been determined by this Court to be compensation to the Employee. In Daggett v. St. Francis Levee District, 226 Ark. 545, 291 S.W. 2d 254, we said:

“It can not be doubted that a retirement allowance financed over a period of years by the joint contribution of the employer and the employees represents compensation rather than a mere gratuity.”

This was reaffirmed by us in Chandler v. Board of Trustees of the Teacher Retirement System of the State of Ark., 236 Ark. 256, 365 S.W. 2d 447:

“A retirement allowance represents compensation paid to the recipient.”

See also Commissioner of Labor v. Renfroe, opinion delivered October 30, 1972.

We must come to the conclusion then that the plan to which Appellee made contributions is contractual in nature and a part of the contract of employment between Appellee, his employer, and the State of Arkansas.

To reach our conclusion it is necessary to find the retroactive aspect of Act 624 of 1969 unconstitutional as applied to the situation in this case. This Court has consistently held that retroactive laws are invalid if they impair the obligations of contracts or rights accruing thereunder. In Gillioz v. Kincannon, Judge, 213 Ark. 1010, 214 S. W. 2d 212, we stated:

“The rule appears to be well settled generally that retrospective laws as the one here, are unconstitutional if they interfere with substantive, or substantial rights, and are valid only when they effect remedies or procedure.” .

See also Coco v. Miller, 193 Ark. 999, where we said:

“...rights conferred by statute are determined according to statutes which were in force when the rights accrued, and are not affected by subsequent legislation. The Legislature has no power to divest legal or equitable rights previously vested.”

See also Talkington v. Turnbow, 190 Ark. 1138, 83 S.W. 2d 71, and Robinette v. Day, 210 Ark. 181, 194 S.W. 2d 878. We, therefore, must reach the conclusion that since Appellee on July 1st, 1964, had performed all of the requirements on his part of his retirement plan, he was entitled to benefits and the legislature could not deprive him of these contractual benefits by future action on its part. Vesting, if that is the correct terminology, occurred no later than this point, July, 1964, and could not be divested thereafter. The legislature at this point had done nothing to reserve its right under the contract to future action affecting Appellee on a retroactive basis.

As previously mentioned, there is conflict in the decisions from other States. An annotation in 52 A.L.R. 2d 437 discusses many of these, and we feel that the reasoning and holding of Hickey v. Pittsburg Pension Board, 378 Pa. 300, 106 A. 2d 233, is expressive of our reasoning, wherein that Court said:

“The Legislature may strengthen the actuarial fibers, but it cannot break the bonds of contractual obligations. Permissible changes, amendments and alterations as provided for by the Legislature can apply only to the conditions in the future, and never to the past. According to the cardinal principle of justice in fair dealings between government and man, as well as between man and man, the parties shall know prior to entering into a business relationship the conditions which shall govern that relationship. Ex post facto legislation is abhorred in criminal law because it stigmatizes with criminality an act entirely innocent when committed. The impairment of contractual obligations by the legislature is equally abhorrent because such impairment changes the blue print of a bridge construction when the spans are half way across the stream.”

Affirmed.


author: Carleton Harris, Chief Justice. Conley Byrd, Justice,

text:
    Ruby MINTON and Eva L. SIMPSON v. Roy McGOWAN et ux
    5-6142
    490 S.W. 2d 136
    Opinion Delivered February 12, 1973

      Eugene Sloan, for appellants.

      Henry S. Wilson, for appellees.
   Carleton Harris, Chief Justice.

The question in this case is whether the chancellor, at the conclusion of appellants’ case, properly sustained a demurrer to the evidence.

E. A. McGowan, the owner of an eighty-acre hill farm in Craighead County, died in 1933. His wife, Annie McGowan, continued to live on the property, which was the family homestead, until 1951, at which time she passed away. Roy McGowan, who, with his wife, are the appellees, was born upon, and has lived his entire life, upon this property, here in controversy. Appellants, Ruby Minton and Eva L. Simpson, married and moved away from the farm in 1924. Following their mother’s death, in 1952, appellants consulted an attorney in Jonesboro with reference to the fact that Roy held drainage district deeds under which, according to appellants, he was claiming title. No acdon, however, was taken, and Roy continued to live on, and to farm, the property. In June, 1970, all the heirs of E. A. McGowan except appellants, deeded their interest in the property to Roy, and on September 10, 1970, appellants instituted suit in the Craig-head County Chancery Court seeking partition of the lands, alleging that they were two of the seven children of E. A. McGowan and each asked that her one-seventh interest in the lands be set apart or the lands sold wherein they could derive their proportionate shares. After a demurrer had been overruled, appellees filed an answer asserting that they had acquired title to the property by adverse possession. Thereafter, appellees moved for summary judgment, but this motion was also denied, and the case proceeded to trial.

At the conclusion of appellants’ case, counsel for appellees demurred to the evidence, the court sustaining the demurrer, and accordingly entering its decree finding that appellees had acquired title by adverse possession and that appellants had no right, title or interest in the lands. From the decree so entered, appellants bring this appeal.

Since this case involves a demurrer to the evidence, it is the duty of the trial court to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence, when so considered, fails to make a prima facie case. Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225. At the time the plaintiff completes his case, it is not proper for the court to weigh the facts, and the motion should be denied if it is necessary to consider the weight of the testimony before determining whether the motion should be granted. Pults v. Pults, 236 Ark. 434, 367 S.W. 2d 120; Neely v. Jones, 232 Ark. 411, 337 S.W. 2d 872.

In the instant litigation, though portions of the testimony by appellants favor the position of appellees, we are still of the view that appellants offered some evidence presenting factual issues for determination. For instance, Charles P. Simpson, husband of appellant Eva L. Simpson, testified that following the death of the mother in 1951, while still at the cemetery, he asked Roy if an administrator shouldn’t be named while the heirs were there all together. He said that Roy answered that there wasn’t any hurry and he (Roy) would take care of the matter later on and wouldn’t make any charge. He testified that he next talked with Roy about getting the estate wound up in 1957, at which time he told the latter that he wanted to build a house on his wife’s part of the land for a home; that Roy responded that he did not have it in shape to divide it up, and walked away. The witness said that he next talked with Roy at the cemetery following the Ace Puckett funeral in 1962, at which time Roy said that he “hadn’t got it ready”. The witness stated that he also talked to Roy several times in 1965 when the latter came to the house to sell butter and eggs, and that Roy gave the same answer.

In 1964, Simpson testified that he told Roy that he, (Simpson) was in the market for a cow and he went to the farm with this appellee to look at a cow. According to Simpson, Roy said he wanted $200.00 for the cow.

“I said, ‘Well, that’s a little high but being you need to sell her and we need one pretty bad I believe I’ll do that’. He said, ‘Well, you’ll have to have your wife sign a deed to her part of the estate’ and I said, ‘Well, I wouldn’t give that for the cow without the $200.00’ so right then we went back to the house and that was all.”

According to Simpson, Roy did not, during any of these conversation, state that he owned or was claiming the property as his own. The witness quoted his last conversation, in April or May of 1970, with Roy when appellee came to his home to ask Eva to sign a deed, as follows:

“I might not get all of the words but he said to her ‘What do I do to get you to [deed] your part of that place?’ and she said, ‘What do I get out of it?’ and he said, ‘You ain’t going to get nothing’ and he said ‘I’ll make you’ and I said, ‘Wait, I’ll get in there now’. Í said, ‘You won’t make my wife do nothing’ and I said, ‘What do you want to give her?’ and he said, ‘I wouldn’t give her very much. It wasn’t worth — I believe he said — $350.00 when he took it over. He said, ‘It wasn’t worth much’. He said, ‘I wouldn’t give much’ and I said, ‘Well, just a little won’t get it’. He said, ‘Well, I’ll sue her. I’ll make her that way’.”

Simpson testified that after about two weeks, since Roy did not institute suit, appellants filed a complaint.

It will be noticed that, from the conversations related, Roy McGowan never contended to Simpson that he owned the property, having acquired it by adverse possession, and it will be noted that the conversations reported broke the continuity of seven years adverse possession. However, there is even stronger evidence presenting a fact question offered by Burl G. Slaven. This witness testified that he was planning on constructing a road running between the McGowan, Rogers, and Slaven land to aid public travel and he had already spoken to Rogers and an aunt seeking to obtain a thirty foot right-of-way. From the record:

“I was going to get 30 foot from each side of the line and build a road and try to get Bill Clark to maintain it for us and he said if I would get a right-of-way he would see what he could do about it. He never did commit himself either way and I went down and asked Roy — ‘Poss’, I know him as Poss better— and I asked him could we have a right-of-way 30 foot across there to put a road through there so my sister could build a house back there. She wanted a house back there and that was the reason for building the road and he said he couldn’t let me have it because it wasn’t his.”

Slaven testified that, to the best of his recollection, this had happened two or three years before the trial.

R. A. Slaven, uncle of Burl, and a cousin of Roy and appellants, testified that he had over the years visited with Roy McGowan and that the two had hunted and fished together; also that Roy had worked for him “off and on” for approximately twenty years. He said that he had talked with Roy at different times about the property and that Roy had never claimed to own the place, “about all he ever said was he paid the taxes on it.”

In Montgomery v. Wallace, 216 Ark. 525, 226 S.W. 2d 551, we said:

“. . . In order that adverse possesson may ripen into ownership, possession for seven years must be actual, open, notorious, hostile, exclusive, and it must be accompanied with an intent to hold against the true owner.”

Of course, the cited testimony disputes the acts necessary to acquire adverse possession, for, to say the least, a factual issue is presented as to whether Roy McGowan intended to hold adversely against his sisters. In addition, we have said that stronger evidence of adverse possession is required of a cotenant where a family relationship exists than is required against a stranger. Johnson v. Johnson, 250 Ark. 457, 465 S.W. 2d 309. Also, evidence of. an adverse holding must be very clear where the original entry is by permission. Dial v. Armstrong, 195 Ark. 621, 113 S.W. 2d 503.

For the reasons herein stated, we are of the view that the court erred in sustaining the demurrer to the evidence, and the decree is accordingly reversed, and the caused remanded to the Craighead County Chancery Court for further proceedings not inconsistent with this opinion.

IT IS SO ORDERED.

Byrd, J., concurs.

Conley Byrd, Justice,

concurring. This controversy as it presently appears before us is a procedural battle and. in writing the majority opinion the author has emphasized, as he should, those facts that are strongest in favor of appellants. Thus the reversal here may be only a Pyrrhic victory — i.e. by winning this battle on procedure, the appellants do not necessarily win the lawsuit. There is other cogent evidence in the record to show that appellants have been denied possession of the lands in excess of seven years and if this matter had been presented on a question as to the weight of the evidence, I would be inclined to hold on the record before us that a preponderance of the evidence shows that appellee had held the lands openly, notoriously and adversely for more than seven years.

Therefore, I respectfully concur.

       Ace Puckett was a brother-in-law, the husband of a sister of his wife.

       According to an affidavit made by Simpson on November 1, 1971, in connection with the motion for summary judgment, this occurred in November or December of 1963, Simpson stating that the conversation took place “soon after the assassination of President Kennedy”.


author: George Rose Smith, Justice. Carleton Harris, Chief Justice,

text:
    Merle FEIGHT et al v. Alice Gay FEIGHT
    5-6106
    490 S.W. 2d 140
    Opinion delivered February 12, 1973

      Phillip H. Loh, for appellants.

      Gordon & Gordon, P. A., for appellee.
   George Rose Smith, Justice.

This case involves the custody of two boys, Jeff and Eric Feight, who were respectively nine and seven years old when the appellee’s petition was filed in the court below. The principal appellants are the children’s paternal grandparents, who appeal from an order confirming the mother’s previously adjudicated right to the custody of her sons.

The parents, Richard and Alice Gay Feight, were divorced in Arkansas in June, 1969, custody of the children then being in the mother. In September of that year the matter of custody was litigated in Arizona, where the parties were then living. The court awarded custody of the children to the mother and ordered the father to pay $100 a month for their support. Thereafter the mother moved with the children to Mason City, Iowa, where she obtained employment.

Richard Feight, the father, still lives in Arizona and is actually a bystander in this dispute. In late December, 1971, the paternal grandparents, Merle Feight and his wife, went to Iowa and, with the mother’s permission, brought the two boys back to their farm in Conway county, Arkansas, for a stipulated one week’s visit. At the expiration of that week, however, the elder Feights went back on their agreement, by refusing to return the children to their mother. Some four months later the appellee filed the present habeas corpus action to recover the actual custody of her sons. The decree, as we have said, was in her favor.

The chancellor was right, under either of the two settled principles that control a dispute of this kind. First, a judicial award of custody will not be modified unless it is shown that there are changed conditions which demonstrate that a modification of the decree will be to the best interest of the children. Wilkins v. Davis, 244 Ark. 304, 424 S.W. 2d 530 (1968); Keneipp v. Phillips, 210 Ark. 264, 196 S.W. 2d 220 (1946); Myers v. Myers, 207 Ark. 169, 179 S.W. 2d 865 (1944).

Here there is no such showing. In fact, there is no proof at all of the conditions that existed when the Arizona court entered its order in 1969. In the present proceedings the appellants have proved nothing, essentially, except that the appellee is a strict disciplinarian in the matter of bringing up her sons. It is not shown, however, that she was not equally strict when custody was awarded to her in the first place. Consequently the necessary proof of changed conditions is wanting.

Secondly, it is firmly settled that, as between a parent and a grandparent (or anyone else), the law awards custody to the parent unless he or she is incompetent or unfit to have the custody of the child. Keneipp v. Phillips, supra; Baker v. Durham, 95 Ark. 355, 129 S.W. 789 (1910). Thus the privotal issue here is the fitness of the appellee to have the care of her own sons.

Even if the question of the appellee’s fitness were the only issue before us, we could not say that the chancellor was wrong in deciding the case as he did. All the evidence unfavorable to the appellee comes either from her own lips or, directly or indirectly, from the lips of her sons, who not only testified but also were quoted extensively by their grandparents. No witness except the mother and the two youngsters purported to have firsthand information about what went on while the boys were living with their mother in Iowa.

We need not read very deeply between the lines in the record to understand why the two boys, after having been in the unlawful care of their grandparents for four months preceding the trial, preferred to remain there. They testified that their mother, who worked during the day, required them to make up their own beds, to scrub floors, to wash dishes, and to do their own laundry. Their mother punished them for failing to do their chores. They also complained about the food they were given, though we have our doubts about the ability of little children to pass upon the sufficiency of their diet.

From the boys’ point of view, conditions upon their grandparents’ farm were ideal. They were apparently given no chores to perform. They had a Shetland pony, a television set, and free access to a radio. They could eat whenever, and apparently whatever, they wanted to. The only indication of discipline during the four months is a statement that the younger boy was spanked once with a switch.

The appellee testified positively, without apology, that she is strict with her children. She gives them chores to perform and punishes them for misconduct. When the younger boy had a tantrum and refused to stop screaming she held his head under a water faucet for about ten seconds. There had been one or two previous incidents of the same kind. Upon another occasion, when Eric refused to do anything that he was required to do, she locked him in a basement room (which had a window) for about half an hour.

The record does reflect one disinterested point of view. The appellee testified that her husband employed a lawyer to have “the social services department” investigate conditions in her home. In the appellee’s words, “they came at their leisure one evening to see my home and my situation and said they were very much impressed with the children, my home and myself. And offered to go to court for me if I had any trouble whatsoever in the future.” It is immaterial that the quoted testimony was hearsay, for no objection was made either to the appellee’s testimony or to that of the grandparents, whose evidence was almost entirely a narration of what the two children had told them.

In conclusion, we should make it clear that it is not the courts’ responsibility to weigh this mother’s strictness against the grandparents’ permissiveness. Not even Solomon could make that decision with the assurance of being right. The only questions before us are whether the appellants have shown a change of conditions since the Arizona court entered its decree and whether the appellee is so unfit to bring up her own children that she "should be permanently deprived of their custody. We cannot say upon either issue that the chancellor’s decision is against the weight of the evidence.

Affirmed.

Harris, C. J., dissents.

Carleton Harris, Chief Justice,

dissenting. It is somewhat with reluctance that I write these dissenting remarks for I have always been a strong believer in home discipline, and am of the view that many a delinquent boy or girl has acquired that deplorable status because of a lack of discipline at home. In other words, I sometimes think that as many, or more, delinquents are created by being overprivileged, as by being underprivileged. Nonetheless, I cannot bring myself to approve of the disciplinary methods used by this mother on her two sons.

In making these remarks, I shall not depend on the testimony of the grandparents (who acquired their information from the boys) since this is hearsay (though not objected to) and shall only relate some of the incidents testified to by the boys themselves, or incidents admitted by the mother.

The four most notable examples in my view are (1) the breaking and giving away of the boys’ toys and presents, (2) the incarceration of the younger in what the boys and mother referred to as the “devil’s room”, (3) sending the children to school without breakfast, and (4) holding the younger boy’s head under a water faucet. In discussing these instances, let us look to the record, though the occurrences will not be discussed in the order listed. The two boys, Jeffery and Eric, are nine and seven years of age respectively. The mother admitted holding Eric’s head under a water several times, stating that she did this because he was having a “tantrum, screaming and yelling”. Another punishment, which I consider extreme, was administered on occasions when the mother stated Eric was misbehaving. She took him to the basement (referred to as the “devil’s room”) and locked him in by himself. There were no lights in the basement and he would be kept there for some period of time as his punishment. From the record:

“Q. What other kind of punishment have you used other than putting him underneath the water?
A. And spanking him.
Q. What else?
A. And there was a time when he decided he just would not do anything he was required to do. I said fine, if you’ve separated yourself from the family, you go down in the basement and stay in the room down there.
Q. How long did he stay in that room down there?
A. Half an hour maybe.
Q. How many times did you leave him down there all day?
A. I never shut him anywhere all day. I never shut him away anywhere. Perhaps thirty minutes or less.
Q. Go ahead, what other punishments have you used?
A. That’s it.
Q. Do you know about this devil’s room?
A. That’s the little room I was telling you about.
Q. And you put him in this room? Did it have any lights in it?
A. Lights in it?
Q. Yes.
A. No, it didn’t.
Q. Did you lock the door?
A. Yes, I did.
Q. What was in the room?
A. Just a bunch of little old suitcases and things like that.
Q. Just a bunch of junk?
A. Uh-huh.
Q. How long would you keep him locked in a room like that?
A. Maybe a half an hour.
Q. No window light or electric lights?
A. There was a window and there was light in the room that came in around the door. The door is not a tight door at all.”

I cannot agree that proper discipline includes inducing a child to fear the dark.

According to the nine-year-old son, Jeffery, the two boys were assigned various tasks, scrubbing floors, mopping, washing dishes every night and the next morning, making their own beds, etc. (and certainly I have no objection to the assigning of tasks or jobs). However, Jeffery testified that if the tasks were not performed by the time the mother returned home from work, the boys went to bed without supper, and if they did not complete the morning chores by 7:00 A.M., they didn’t get any breakfast. I cannot approve sending these boys to school without breakfast since it could well be detrimental to their health.

More inhumane than these facts, in my opinion, was the action of this mother in destroying and giving away the toys and presents given to the children. Eric testified that if he didn’t get his work done on time, appellee would pick up a toy and say “You’re not going to enjoy having this toy” and would stomp on it. He also said that she had given some of his toys and clothes to the “Goodwill”, including a pair of boots that he had received as a present, and was never permitted to wear.

The breaking of the toys was not denied by the mother and she also admitted giving them away. From the record:

“Q. What — tell us about the toys they have. A few toys? Lot of toys?
A. Since I have been divorced they have been provided a great amount of toys through their grandparents and through their father. There was very little left that I could give them.
Q. Is your closet like the one in my house, it’s overflowing with toys?
A. That’s right.
Q. And—
A. I saw fit to get rid of most of their toys and injurious things so I could provide these myself.”
Q. Did you from time to time give away the boys’ presents like bicycles?
A. Yes, I did.
Q. Did you replace them?
A. I have replaced most of them.
Q. Did you replace the bicycles?
A. I have not.”

This breaking and giving away of toys and presents seems to me to be utterly senseless, and I can only conclude that this is occasioned by hatred of the father and his parents, not a desirable sentiment or trait to impart to one’s children.

Not only that, but the mother only receives $300.00 per month take-home pay, and she can hardly afford to spend a portion of this money replacing toys and presents.

I have not mentioned several other matters testified to by the children since the ones already mentioned, in my opinion, should preclude the mother from being given custody at the present time.

The majority mention that there has been no showing of a change in circumstances since the original decree. The evidence does not reflect the testimony given at the time the divorce was granted, but the things that I have mentioned took place after the awarding of the divorce and custody. Of course, there actually has been a change in that the children are living with their grandparents, and do not desire to return to their mother. Also, other women friends lived with the mother and her children for a period of time, the children complaining that these women whipped them with a board, called the “board of education”.

The majority also mention that the evidence denotes that the home was investigated by the Social Services Department. Appellee testified:

“I assume my husband had hired a lawyer to have my situation of communal living investigated and they came at their leisure one evening to see my home and my situation and said they were very much impressed with the children, my home and myself. And offered to go to court for me if I had any trouble whatsoever in the future.”

The fact remains that, though the present litigation shows a full-scale custody action, no testimony, .through deposition or otherwise, was given by employees of the department.

It might be that if appellee presently lost custody by virtue of the actions mentioned, she would recognize that the law does not condone the acts of a person, even a parent, in going beyond the realm of reason in administering disciplinary action.

I, therefore, respectfully dissent.

       These boots were given by the grandparents who, at the time of the trial, were keeping these children.

       For instance, Jeffery testified that he and his brother slept in the basement on beds "made for camping. We called them camping bunk beds.” The bunks contained no mattresses or springs. “All they had was the cloth on them. Just like a cot.”


author: George Rose Smith, Justice.

text:
    SOUTHLAND CORPORATION and TRAVELERS INSURANCE COMPANY v. Gerta L. HESTER et al
    5-6153
    490 S.W. 2d 132
    Opinion delivered February 12, 1973

      Terral, Rawlings é- Matthews, for appellants.

      Rush, Asher ir Galloway, for appellees.
   George Rose Smith, Justice.

This is a claim for death benefits under the workmen’s compensation law. The pivotal question is whether the employee’s death, assuming it to have been accidental rather than self-inflicted, arose “out of” his employment. The commission’s two-to-one decision allowing the claim wras affirmed by the circuit court.

The facts, stated most favorably to the appellees, are these: Buford Hester, the decedent, was employed by Southland Corporation, which was a distributor of milk and milk products. The record does not tell us much about Hester’s duties as an employee, except that for an unspecified period of time before his death he had been traveling with newly employed route salesmen, showing them the territory that they were to cover.

On April 12, 1969, Hester was to travel over a new route with Bland Williamson. The two men agreed to meet at Southland’s office at 7:00 a.m. When Williamson reached the office he discovered that Hester was dead. The decedent was sitting in a chair in front of his desk. He had been shot by his own .22 caliber rifle. The butt of the rifle was propped against a surface-mounted electrical outlet on the floor. The barrel of the weapon was pointed toward the decedent’s chest, in the vicinity of his heart. Powder burns indicated that the gun had been pressed against Hester’s chest when the fatal shot was fired.

Almost all the claimants’ witnesses testified only to facts rebutting the inference of suicide. To that end it was convincingly shown that Hester had no known motive for taking his own life and that he was not familiar with firearms. We do not set out that testimony, because we do not rest our decision upon the view that Hester’s death was not accidental. Instead, we are concerned with the existence of a causal connection between Hester’s employment and his death. Upon that issue the main testimony is that of Hester’s widow, whose evidence is to this effect:

Hester owned the rifle. About four months before his death he asked his wife where the gun was. Mrs. Hester told him that she had put it in a bedroom closet that was used for storage. “I asked him why, and he said that, well, there had been quite a few rough-looking youths coming in and applying for jobs, and he said somehow or another I have a feeling that they are not looking for jobs, because their eyes roves around over the office area, and there would be at times money that Miss Holland would have money from the routemen laid out there, and he was quite concerned about that, and he had warned them.” Mrs. Hester had no idea when her husband took the rifle to the Southland office. No one testified to having seen the weapon at the office before Hester’s death. A filling station attendant in the neighborhood testified that he saw Hester enter the Southland building on the morning of his death and that Hester was not then carrying a rifle. There is no proof that Hester’s duties as a Southland employee involved any responsibility for the handling or safekeeping of money belonging to the company. No funds were kept at the office overnight, but routemen did bring in collecdons during the day.

The applicable principles of law are fairly well settled. An accident arises “out of” the employment when there is a causal connection between the two; that is, when the accident results from a risk reasonably incident to the employment. Owens v. Southeast Ark. Transp. Co., 216 Ark. 950, 228 S.W. 2d 646 (1950). With respect to injuries resulting from the accidental discharge of firearms, Schneider fairly summarizes the cases:

“Injuries to workmen from the accidental discharge of guns, not handled or present in connection with or furtherance of the employer’s business, cannot be said to be compensable accidents. They do not arise out of though they may occur in the course of the employment. But where the presence of a gun is reasonably necessary to insure the safe conduct of the employer’s business, or is present or handled for the purpose of protecting the employer’s property, or in the furtherance of the employer’s interests, and the employer has knowledge of its presence, or acquiesces in its presence, either affirmatively or by his inaction, injuries resulting from the accidental discharge of the weapon, while the workman is in the course of his employment, may be said to be compensable as arising out of the conditions surrounding the employment and risk inherent to the nature thereof.” Schneider, Workmens Compensation, § 1567 (a) (1948).

Compensation is to be denied when the presence of the firearm had no connection with the employer’s business or the employee’s duties. Bull v. Wayco Oil Corp., 250 Mich. 51, 229 N. W. 597 (1930); Highway Oil Co. v. State ex rel. Bricker, 130 Ohio St. 175, 198 N.E. 276 (1935); Beamer v. Stanley Co. of America, 295 Pa. 545, 145 A. 675 (1929); Aetna Life Ins. Co v. Burnett, 283 S.W. 783 (Tex. Civ. App., 1926). On the other hand, when there was such a connection, and when the employer expressly or impliedly consented to the presence of the weapon, compensation is recoverable. Nurmi v. Indus trial Acc. Commn. of Calif., 137 Cal. App. 221, 30 P. 2d 529 (1934); Security State Bank of Sterling v. Propst, 99 Colo. 67, 59 P. 2d 798 (1936); Holland v. Continental Cas. Co., 155 So. 63 (La. App., 1934); Gallaher v. United States F. & G. Co., 77 S.W, 2d 312 (Tex. Civ. App., 1934). In the somewhat analogous case of an injury resulting from horseplay upon the employer’s premises, we have noted that a pertinent fact is whether the employer should have known about the horseplay, so that it could have been stopped. Southern Cotton Oil Division v. Childress, 237 Ark. 909, 377 S.W. 2d 167 (1964).

In the case at bar we cannot conscientiously say that there is any substantial evidence to support the conclusion that Hester’s accidental death was causally connected with his employment, within the controlling rules of law. It is not shown that he was in any way responsible for the safekeeping of Southland’s money or property. It is not shown that Southland consented, expressly or impliedly, to the presence of the rifle upon its premises, much less to its control by a man unfamiliar with the use of firearms. To say the least, Hester voluntarily created a dangerous situation having no direct connection with his duties as an employee and bearing no express or implied approval on the part of his employer. Inasmuch as Hester’s death cannot be said to have been proximately connected with his work, even under the most liberal view of the evidence, the claim for death benefits must be denied.

Reversed and dismissed.


author: Lyle Brown, Justice.

text:
    COMBINED INSURANCE COMPANY OF AMERICA v. William J. YATES
    5-6148
    490 S.W. 2d 134
    Opinion delivered February 12, 1973

      Barber, Henry, Thurman, McCaskill ir Amsler, for appellant.

      Hale, Hale ir Fincher, P. A., for appellee.
   Lyle Brown, Justice.

This is an appeal from a judgment entered on a jury verdict in favor of appellee William J. Yates and against appellant Combined Insurance Company of America. The judgment was based on a group disability policy for seven months disability, $1000 per month. Application for the policy was made on October 16, 1970. On November 22, 1970, appellee suffered a heart attack which formed the basis of his claim. The claim was resisted, and was defended, on the theory that appellee gave untrue answers to some of the questions in the application and that if the true facts had been disclosed the policy would not have been issued. The single point for reversal is that appellant’s motion for a directed verdict should have been granted.

Appellant pointed its proof to three elements, namely, high blood pressure, a medical examination by Dr. Murphy, and the allegation that appellee had long taken diupres (a medication for high blood pressure).

High Blood Pressure. One of the questions on the application inquired if appellee had ever had abnormal blood pressure. The answer inserted was “No”. Appellee testified that he told the agent that he was rejected by the armed forces in 1953 because they said his blood pressure was up a few points. The salesman replied, so appellee testified, that the insurance company was not interested in a problem beyond five years. Appellee insisted that it was the agent who filled in the answers to the questions. Dr. Stanley, who treated appellee when he had his heart attack, said he had a case history, some obtained from appellee and some from appellee’s wife, that appellee had a long history of hypertension. Appellee categorically denied that to be a fact. Appellee testified that as a truck driver and a commercial pilot he had to take physical examinations annually and that he had never been refused his licenses because of any disability. He said he also had passed two physicals in 1969 for other insurance.

Medical Examination by Dr. Murphy. Another question inquired of appellee if he “had been under observation, or had medical or surgical advice or treatment” during the preceding five years. Appellant said he answered “No” to that question. Appellee said in November 1969 he went to his family doctor for an ICC examination and complained of a mild chest pain. He said he did not consider the incident to constitute medical observation or treatment. Had appellee answered “Yes” and had the insurer made inquiry of Dr. Murphy, appellant would have received answers favorable to the insured. In fact, after the heart attack, the insurer called on Dr. Murphy for a report of that visit. The substance of the answers was that for eight years appellee had taken an annual physical for the ICC permit and that appellee passed the physical without defects. As to the chest pain, Dr. Murphy took an electrocardiogram at the interview and found no evidence of infarction.

As to the Medication Diupres. The last question on the application inquired if the applicant was in good health and free from impairment. Appellee gave a “Yes” answer to the question. Appellant argues that the case history taken by Dr. Stanley developed that appellee was regularly taking diupres for hypertension. The appellee testified that Dr. Stanley was mistaken; that he never to his knowledge had taken any medication for high blood pressure.

The burden was on appellant to prove that any misrepresentations were fraudulent or material to the acceptance of the risk or hazard. Hartford Life Ins. Co. v. Catterson, 247 Ark. 263, 445 S.W. 2d 109 (1969). Whether appellee had a history of high blood pressure and whether he took diupres were fact questions resolved by the jury against appellant. Also, the question of whether appellant was prejudiced by the failure of appellee to relate his visit to Dr. Murphy was a question for the jury. We also think the form of the question propounded to appellant’s underwriter is significant. We abstract the question, in three parts, as follows:

If it had been disclosed that Yates had been rejected by the armed forces for high blood pressure; and,
If it had been known that Yates had been examined by Dr. Murphy shortly prior to the issuance of the policy, at which time Yates complained of chest discomfort; and,
If it had been disclosed appellant had been taking medication for high blood pressure, would the policy have been issued?

The underwriting supervisor replied that the policy would not have been issued under those circumstances. It is significant to us that the hypothetical question was cumulative, in other words, the supervisor was saying that had appellant been furnished, collectively, with those elements, the policy would not have been issued. What we are saying is that he did not respond that the knowledge of any one of the recited elements would have resulted in a rejection.

Finding substantial evidence to support the conclusions of the jury, we affirm the judgment, adding thereto the statutory penalty and attorney’s fee of $1000.

Affirmed.


text:
    PINE BLUFF NATIONAL BANK v. Billy E. PARKER et al
    5-6160
    490 S.W. 2d 457
    Opinion delivered February 12, 1973
    [Rehearing denied March 12, 1973,]

      Jones, Matthews <b Tolson, for appellant.

      Wilton E. Steed and Coleman Gantt, Ramsay & Cox, for appellees.
   Lyle Brown, Justice.

The appellant (plaintiff below) is the Pine Bluff National Bank. The appellees are First Federal Savings and Loan Association of Pine Bluff (garnishee below) and Frank Parker (intervenor below). Pine Bluff National sued Billy E. Parker and obtained a writ of garnishment against First Federal Savings. The garnishee answered that Billy Parker had on deposit $11,231. Pine Bluff National and Billy Parker agreed to a consent judgment whereby Parker paid a lump sum on a substantial debt and executed three installment notes. The judgment recited that First Federal, the garnishee, would hold the savings account for sixty-one days and if by that time Billy Parker was in default on his installment notes, the court would enter an order to First Federal Savings to pay over the $11,231 to Pine Bluff National. Such a default occurred and on April 17, 1970, judgment was entered finding Billy Parker in default and ordering First Federal Savings to pay the $11,231 to Pine Bluff National. In reliance on the judgment and garnishment the bank released certain automobiles to Billy Parker from its security.

On July 2, 1970, First Federal filed a motion to set aside the judgment against it as garnishee, alleging that it was in error in answering that Billy Parker had $11,231 on deposit; that the deposit was a joint account in the names of Frank Parker or Billy Parker; that the mistake had not been discovered until after the entry of judgment against First Federal; and it prayed that it be permitted to file an amended answer setting forth the true facts. The trial court entered an order setting aside the judgment against the garnishee and permitting it to file an amended answer. From that order Pine Bluff National appealed to this court. Pine Bluff National Bank v. First Federal Savings & Loan Ass’n., 250 Ark. 600, 466 S.W. 2d 249 (1971). There we held that since granting of the judgment and the setting aside thereof were done in the same term, there was no merit in the challenge to the court’s right to set the judgment aside. We refused to pass on the bank’s claim of title to the funds because that issue had not yet been resolved by the trial court.

Upon remand to the trial court, Frank Parker filed an intervention claiming to be the sole owner of the funds. Based on the pleadings and the testimony the court, sitting as a jury, adjudged that (1) when the judgment against the garnishee First Federal was set aside it placed all parties in the same position with respect to their legal rights that they had prior to the original answer of the garnishee; (2) a joint account is garnishable only to the extent of the ownership of the debtor; and (3) the savings account was owned by intervenor, Frank Parker, and should be released to him.

The bank does not appeal from the court’s findings as to the respective rights between Frank Parker and First Federal Savings. The court committed no error in permitting Frank Parker to intervene because the court had that right by virtue of our holding in the first appeal. Furthermore, Frank Parker had a right to establish his actual ownership of the account because that was a garnishment proceeding. Hayden v. Gardner, 238 Ark. 351, 381 S.W. 2d 752 (1964). Pine Bluff National contends that the court erred in refusing to grant it a judgment against First Federal because, acting in reliance on the first judgment, the bank released certain automobiles which Billy Parker had pledged as security for the original debt. That contention is meritorious.

The evidence is undisputed that the garnishee, First Federal, upon receipt of the first court judgment, accepted its responsibilities thereunder. First Federal’s attorney advised Pine Bluff National’s attorney that its responsibility under the judgment would be observed promptly upon receipt of a finding that Billy Parker was sixty-one days in default. Under Ark. Stat. Ann. § 67-1838 (4) (Repl. 1966) Billy Parker had a prima facie right to make the assignment. First Federal reported the account to be in the name of Billy Parker, accepted the assignment, and caused the bank to act to its detriment (release of the collateral). We hold that in such a situation First Federal is liable to pay to Pine Bluff National a sum equal to the amount of the garnishment. We have held that where a garnishee answers and admits a debt without reservation or qualification, he does so at his peril. Cross v. Haldeman, 15 Ark. 200 (1854). Also see Dunnegan v. Byers, 17 Ark. 492 (1856). When one of two innocent parties must suffer, the burden should be borne by the one whose conduct induced the loss. Lane v. Rachel, 239 Ark. 400, 389 S.W. 2d 621 (1965); Sims v. Petree, 206 Ark. 1023, 178 S.W. 2d 1016 (1944).

Finally, First Federal contends that the appeal should be dismissed for failure of Pine Bluff National to state the points to be relied upon at the time of designating an abbreviated record. Ark. Stat. Ann. § 27-2127.5 (Repl. 1962). Appellant does not cite any prejudice and we perceive none.

The trial court is directed to enter judgment in favor of Pine Bluff National and against First Federal Savings in the amount of the garnishment together with interest.

Reversed.

Harris, C. J., not participating.


author: John A. Fogleman, Justice.

text:
    J. B. RICKMAN, Jr. and Wanda RICKMAN, his wife, and Robert E. HORNER and Patsy G. HORNER, his wife v. Jack E. MOBBS and Alice MOBBS, his wife
    5-6155
    490 S.W. 2d 129
    Opinion delivered February 12, 1973
    /. H. Carmichael Jr., for appellants.

      Wayne R. Foster, for appellees.
   John A. Fogleman, Justice.

Appellants filed a suit to enjoin the appellees from the operation of a used car lot and real estate office on certain lots in the Holiday Park South Subdivision in Pulaski County. Neither of the appellants has ever owned any property in that subdivision. The dwelling houses owned by each of them are located in Holiday Park Subdivision, which is separated from Holiday Park South by Kiehl Avenue, a street running east and west. A bill of assurance restricting the property in Holiday Park to residential use was approved by the Pulaski County Planning Commission. It was recorded in the Circuit Court Clerk’s office on July 8, 1964, prior to the purchase of the lots on which appellants’ residences are located. Subsequently, a bill of assurance restricting the use of certain lots (including those on which the businesses of appellees were located) in Holiday Park South, dated January 19, 1966, was approved by the planning commission and recorded in the clerk’s office on April 8, 1966. Appellants contended that their property was damaged by the use of appellees’ lots for business purposes and sought to recover damages as wéll as to enjoin the continued use of the property for commercial purposes.

Appellees moved for a summary judgment upon the basis of their ownership (along with their daughter and son-in-law) of all of Holiday Park South and the fact that appellants owned no property therein. Thereafter, appellants amended their complaint to allege that the use being made of the Mobbs property was in violation of the planning board rules and regulations in that the board had approved the Holiday Park South bill of assurance, that the plats of both subdivisions and the accompanying bills of assurance dedicated Holiday Drive, a street extending from the north end of Holiday Park to the south end of Holiday Park South, to be used in connection with lots restricted by the respective bills of assurance to residential uses, and that the lots in both subdivisions were purchased from a common source.

Appellees then filed a supplemental affidavit in support of their motion for summary judgment, stating that no zoning regulations or restrictions covering their property had ever been promulgated, and that Holiday Realty Company, Inc., the developer of both subdivisions, had acquired the lands comprising the respective subdivisions at different times from diffeerent owners, platted the respective tracts into lots at different times and disposed of them at different times, so that it was not the owner of either appellants’ or appellees’ lots at the time the appellees acquired the respective tracts owned by them in Holiday Park.

Appellees’ affidavits were not controverted by counter-affidavits or other matter, prior to a hearing on the motion. The chancellor reserved a ruling, however, until evidence had been adduced on all issues except the question of damages to appellants. Appellants’ attorney conceded that the statements contained in the affidavits were correct, but insisted upon offering testimony.

It was shown by witnesses that the Mobbs “mobile home” real estate office and used car lot were immediately opposite the Rickman property on Kiehl Avenue, that the Horner residence was situated nearby and that the value of both residential properties was diminished by reason of the proximity of Mobbs’ commercial operations. Rickman and his wife purchased their property from Austin Wiggins on February 28, 1968. Rickman stated that he was aware of the existence of the two subdivisions, and that he relied upon the recorded bill of assurance and plat of Holiday Park South to restrict the use of the property in that subdivision to residential purposes. Patsy Horner also knew of the restrictions on use contained in the Holiday Park South bill of assurance when she purchased her property in Holiday Park in 1969 from Donald J. Roderique. Mobbs testified that he bought Holiday Park South from Holiday Realty Company on December 5, 1966, and deeded certain lots therein to his son-in-law.

After hearing all the testimony, the chancery court granted the motion for summary judgment. Appellants contend that this action was erroneous. We do not agree.

Appellants argue that they have standing to enforce the provisions of the bill of assurance covering Holiday Park South, even though they own no property in that subdivision and never have. They base their argument upon the approval of the bill of assurance by the county planning board and rely upon cases holding that owners of nearby property may challenge changes in zoning, even though they own no property in the rezoned area. Those cases have no application here. There has been no zoning of the Mobbs property so far as this record discloses. Under our statutes, approval of the bill of assurance and plat by the planning commission did nothing more than entitle the owner to place them of record. See Ark. Stat. Ann. § 17-1106 (Repl. 1968). See also, Ark. Stat. Ann. § 19-2829 (Repl. 1968). While the county planning commission may recommend zoning of unincorporated areas as to land use, such recommendations are not binding until adopted by the county court, after a public hearing. Ark. Stat. Ann. § 17-1103 (Repl. 1968). This necessary action is not disclosed by the record.

In the absence of any zoning of the property, appellants can only prevail if their reliance upon the recorded bill of assurance pertaining to Holiday Park South gave rise to enforceable rights. In approaching this question, we must remember that the courts do not favor restrictions upon the utilization of land. Schermer v. Haynes, 248 Ark. 255, 451 S.W. 2d 445. There is no doubt that the purchaser of land covered by a bill of assurance is entitled to have the reciprocal obligations of restrictions thus established enforced against the owners and purchasers of other lands subject to the same bill of assurance. Moore v. Adams, 200 Ark. 810, 141 S.W. 2d 46; Dillingham v. Kahn, 188 Ark. 759, 67 S.W. 2d 735. But this right to enforce restrictions as to use rests upon a contractual basis imposing upon the grantor and his grantees the obligation of observing them. Moore v. Adams, supra. While the bill of assurance is only one means of establishing a, restricted use in a district, the understanding of the purchaser, or even a general or common understanding, that a certain restriction applies to a section or area is not a sufficient basis for enforcing that restriction, when the understanding or belief is not founded upon a contractual obligation. Moore v. Adams, supra. While there is evidence that appellants were aware of, and perhaps relied upon, the Holiday Park South bill of assurance at the time of their purchase of lots in Holiday Park, we find nothing whatever to indicate any contractual basis for this reliance or that the bill of assurance covering the Holiday Park South subdivisision was for the benefit of Holiday Park or owners or purchasers of property therein.

In view of our disposition of this point raised by appellants, their other points for reversal are moot and the decree is affirmed.