author: John A. Fogleman, Justice.

text:
    City of Little Rock v. Samuel Lanier Raines III
    5-4177
    411 S. W. 2d 486
    Opinion delivered February 20, 1967

      Joe Kemp and Riddick Riff el and Moses, McClellan, ArnoldOwen & McDermott, for appellant.

      Patten & Brown and Catlett & Henderson, for appellee.
   John A. Fogleman, Justice.

The fundamental question in this case is. whether the City of Little Eock has the authority to exercise the power of eminent domain to take private property for use as an industrial park. This involves consideration of two legal questions: (1) Has the power of eminent domain been delegated to the city for this purpose? (2) Is the use for this purpose a public use satisfying constitutional requirements for the exercise of the power?

On June 21, 1965 the City of Little Eock passed an Ordinance (No. 11,612) condemning property of appellees, used for agricultural purposes outside the city limits, for the stated purpose of constructing a port, establishing an industrial park, and for related facilities.. This ordinance directed the City Attorney to file condemnation proceedings. Before this was done, appellees filed this action in the Pulaski Chancery Court on October 8, 1965. They alleged that the city was purporting to take their lands for a private purpose — the establishment of an industrial park. They asserted that this action was beyond the city’s powers and contrary to the Constitutions of Arkansas, and the United States, thus rendering the ordinance void and creating a cloud upon appellees’ title. Alternatively, appellees prayed for just compensation. The city filed its answer, but before trial it filed two condemnation suits against different appellees, in the Pulaski Circuit Court. Each of the appellees answered and successfully moved the transfer of the cases to the chancery court where, by agreement, all cases were consolidated. After hearing testimony on April 27th and 28th, the chancellor rendered a decree on September 27, 1966, holding the city ordinances null and void, insofar as they applied to the lands of appellees.

In the decree the court made these pertinent findings :

1. That the city ordinances purport to condemn the appellees’ property for the purpose of constructing a port, establishing an industrial park and related facilities;
2. that the use for which the city proposed to condemn the property of appellees was to place improvements thereon and otherwise prepare the land for industrial sites, and to sell or lease said lands to private industries;
3. that these lands were proposed to be? used other than as a site for a port facility;
4. that the proposed use of these lands is not a “public purpose or use permitted by the? Constitution of the State of Arkansas under the right of eminent domain of the City of Little Rock, Arkansas. ’ ’

Appellant contends: That the lands of appellees were being taken for an industrial park that constituted an over-all proposal .for port facilities adjacent to the industrial project; that this use was for a public and lawful purpose; that the necessity for the proposed taking was concluded by (1) the vote of the electors of the? city approving the issuance of bonds under the authority of Amendment 49 to the Constitution of Arkansas, and (2) the action of the city; and that the city has the authority, both express and implied, to condemn the properties involved.

An understanding of the basis of these findings requires some review of the record. For this purpose we will, for the most part, review the action of appellant and the testimony offered by it.

The title of Ordinance No. 11,612 states that the property is “to be used for the purpose of constructing a port., establishing an industrial parle and for related facilities.” The statement of necessity in this section is that the properties “are necessary for the purpose of creating and developing a port facility and terminal, and an industrial park and related facilities.” [Italics ours]

Appellees filed a motion to require appellant to produce plans for development of the lands of appellees prepared by Carver and Carver, Forrest and Cotton, or by any other person, firm or corporation. In response, appellant stated that it had adopted no plan prepared by those named or any other persons, firm or corporation and added:

“As indicated in the Complaint the Defendant proposes to develop the lands of the Plaintiff, when-acquired, for general industrial purposes but has established no detailed land use plan for such development.” [Italics ours]

In its condemnation complaint against appellees, Samuel L. Raines, et ux, appellant alleges that it had declared that the acquisition of the lands was “necessary for public use in its undertaking in creating, constructing and developing an industrial park, a port facility and related facilities.” [Italics ours] The complaint of the city in the case against appellee Mary J. Raines states the proposed use to be “in creating, constructing and developing an industrial park and related facilities”, without mention of a port.

The preamble to City Ordinance No. 11,674, repealing an ordinance condemning lands of another owner and a section of the ordinance by which appellant sought to condemn appellees’ property along with that of other owners, states that the condemnation “was for lands to be used and utilized in the establishment and construction of an industrial park and for related facilities” without mentioning a port facility.

During the examination of one E. L. Killingswortli, Jr., a civil engineer called as a witness by appellant, one of the city’s attorneys asked whether the witness prepared “the preliminary plans and the cost figures f.or this industrial park to be operated in relation with the Port Authority” and offered the plans prepared by him. This exhibit called the project “Little Bock Port Industrial Park”. It consisted of six sheets, and portrayed apparent proposals, for water distribution lines, railroad lines, streets, sanitary sewers and storm drainage, along with a proposed typical street section. Nowhere is a port mentioned, except in the title, and its proposed location is not shown. From examination of this plan in conjunction with other exhibits and testimony, it appears that a road or street would be provided to cross a levee into the proposed port site. Mr. Fred I. Brown, Jr., currently Chairman of the Little Bock Port Authority, testified that this agency was “charged with building a port and developing an adjoining industrial district on the Arkansas Biver”. Even though he stated that the two would necessarily be considered a unit, he stated that the purpose was “to build a municipal dock with a related industrial area. ’ ’ Little Bock Besolution No. 3,428 was introduced through this witness. Its preamble contains a finding that it is necessary and vital to proceed with acquisition of lands “to be utilized for industrial development and related port and port terminal facilities purposesThe reason Mr. Brown gave for the plan to sell or lease the property acquired to private business was the inability of anyone to make money out of it and the fact that the project is a non-profit venture. He further testified that neither the port nor the industrial district would be a profitable venture and that the city only had the money to develop 129 acres of the projected 1,200 acres. [Italics ours]

Mr. Harry Pittard, the Director of Pulaski County Flood Control and Navigation Committee, a group that served in an advisory capacity in the formulation of this proposed district, when asked his understanding of the use to be made of the district answered, “Part of it as an industrial site cmd part of it as a port site.” He said that at the time of his appraisals of appellees.’ property the existing plans were only to develop it as an industrial site and port facility. [Italics ours]

Mr. Floyd Fulkerson, another witness, for appellant, stated that the port on the Arkansas River would support an industrial district.

It might further be noted that no plans exhibited by appellant showed anything more than the location of a proposed port site. They showed nothing purporting to be a plan of development of the port site or an interrelation of the two facilities whatever.

It appears to us that the trial court’s factual finding’s that the proposed taking of appellees’ property is for the establishment of an industrial park, by placing improvements thereon and otherwise preparing the lands for industrial sites to be sold or leased to private industries and that the use is for other than a port facility are supported by a preponderance of the evidence. Certainly it cannot be said that they are clearly against the preponderance of the evidence.

The city contends that it has the power of eminent domain for taking the property of appellees for industrial park purposes upon these bases:

(1) As a power fairly implied in or incident to the express powers granted by Amendment No. 49 to the State Constitution authorizing* cities and counties to issue bonds and levy taxes, “for the purpose of securing and developing industry within or near the municipality holding the election” and by the provisions of the Act implementing the Amendment [Act 9 of 1960, Extraordinary Session, Ark. Stat. Ann. § 13-1602] (Supp. 1965)].

(2) As an express grant by Act 231 of 1937, as amended by Act 189 of 1947 [Ark. Stat. Ann. §§ 19-2702 — 19-2719 (Repl. 1956)], authorizing cities to purchase, construct, establish and operate ports, harbors and barge terminals.

(3) As an express grant by Act 167 of 1947 [Ark. Stat. Ann. §§ 19-2720 — 19-2731 (Repl. 1956)], authorizing cities to create port authorities.

(4) As an express grant by Act 206 of 1963 [Ark. Stat. Ann. §§ 19-3101 — 19-3108 (Supp. 1965)], an Act implementing Amendment No. 18 to the Constitution which provided for the levy of a city tax to be used for securing the location of factories, industries and river transportation and facilities.

(5) As an express grant by the Act of March 9, 1875 [Ark. Stat. Ann. § 35-902 (Repl. 1962)], as amended.

In considering these contentions of the city, we must keep in mind certain fundamental principals of the law of eminent domain, especially as it relates to municipal corporations.

The power of eminent domain is an attribute of, and inherent in, a sovereign state. Article 2, § 23, Constitution of Arkansas; Young v. City of Gurdon, 169 Ark. 399, 275 S. W. 890; City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30. The right of property is before and higher than constitutional sanction. Article 2, § 22, Constitution of Arkansas.

Cities are creatures of the state to aid it in the regulation and administration of local affairs. Woods v. Haas, 229 Ark. 1007, 320 S. W. 2d 655; Portis v. Board of Public Utilities of Lepanto, 213 Ark. 201, 209 S. W. 2d 864; City of Hot Springs v. Gray, 215 Ark. 243, 219 S. W. 2d 930. They have no inherent powers, and can exercise only (1) those expressly given them by the state through the constitution or by legislative grant, (2) those necessarily implied for the purposes of, or incident to, these express powers and (3) those indispensible (not merely convenient) to their objects and purposes. City of Piggott v. Eblen, 236 Ark. 390, 366 S. W. 2d 192; McClendon v. City of Hope, 217 Ark. 367, 230 S. W. 2d 57; Bain v. Ft. Smith Light & Traction Co., 116 Ark. 125, 172 S. W. 843, LRA 1915 D 1021; Laprairie v. City of Hot Springs, 124 Ark. 346, 187 S. W. 442; City of Argenta v. Keath, 130 Ark. 334, 197 S. W. 686, LRA 1918 B 888; Cumnock v. City of Little Rock, 154 Ark. 471, 243 S. W. 57, 25 ALR 608; Arkansas Utilities Co. v. City of Paragould, 200 Ark. 1051, 143 S. W. 2d 11; Williams v. Dent, 207 Ark. 440, 181 S. W. 2d 29; Deaderick v. Parker, 211 Ark. 394, 450, 200 S. W. 2d 787.

Cities may act legally only within the powers derived from or delegated by the constitution and statutes.. Neal v. City of Morrilton, 192 Ark. 450, 92 S. W. 2d 208. The validity of their ordinances depends on the authority granted by the constitution or by the legislature. Incorporated Town of Paris v. Hall, 131 Ark. 104, 198 S. W. 705; Nesler v. City of Paragould, 187 Ark. 177, 58 S. W. 2d 677; Bennett v. City of Hope, 204 Ark. 147, 161 S. W. 2d 186; City of Stuttgart v. Strait, 212 Ark. 126, 205 S. W. 2d 35.

Consequently, if the City of Little* Rock has the power of eminent domain for the purposes for which they s.eek to exercise it here, it must be grante*d by the constitution or statutes. Grants from sovereigns are to be construed strictly against the grantee. Citizens Pipe Line Co. v. Twin City Pipe Line Co., 178 Ark. 309, 10 S. W. 2d 493. The authority for the taking of private property (for public use) should be clearly expressed. City of City Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30.

Statutes relating to the exercise of the right of eminent domain, especially where there is an alleged delegation of the power, should be strictly construed in favor of the landowner and against the condemnor, largely because they are in derogation of the common right. City of Little Rock v. Sawyer, supra; Hampton v. Arkansas State Game and Fish Comm., 218 Ark. 757, 238 S. W. 2d 950.

Any fair, reasonable and substantial doubt about the existence of a power in a municipal corporation must be resolved against it. City of Piggott v. Eblen, 236 Ark. 390, 366 S. W. 2d 192; Yancey v. City of Searcy, 213 Ark. 673, 212 S. W. 2d 546.

Having these cardinal principles in mind, we proceed to examine the city’s contentions, as to sources of its alleged power.

(1) Amendment No. 49 was proposed by the General Assembly. Nothing in that amendment, the resolution proposing it, its content or the ballot title under which the people adopted it, even faintly intimated to the voters that it would permit the taking of- private property for securing and developing industry or that any power to do s.o was, or would be, delegated to cities. Nothing was sought to be done, or was accomplished, by this amendment except to permit the issuance of bonds and the levy of taxes to secure and develop industry. The title of Act 9 Ark. [Stat. Ann. §§ 13-1601 — 13-1614 (Supp. 1965)] is “Municipalities, Counties Industrial Development Revenue Bond Law.” The statement of purposes (% 13-1614) does, not even suggest the conferring or delegating of the power of eminent domain. The only possible inference that there could have been any contemplation of the power of eminent domain is section (§ 13-1602) authorizing municipalities to acquire land, buildings or facilities that can be used in securing and developing industries. If we give the effect to this amendment and its implementing act, contended for by appellant, the city could condemn the plant of an existing industry to secure another. We cannot believe that either the people or the General Assembly intended this. In any event, we do not find the power that appellant seeks to exercise in the present proceeding.

We recognize that the Act calls for a liberal construction to accomplish the purposes thereof. We do not believe that it was intended that this be the vehicle for overruling all principles of existing law of eminent domain, in view of our recognition that the right of private property is higher than constitutional sanction. It would take an extremely liberal construction indeed to find the power appellant seeks to exercise here. If the mere fact that cities are authorized to promote industry and to use tax money for that purpose gives it this power, then it seems that it could exercise the power to take a headquarters for a welfare association, since it has been held that contributions to such are a proper public purpose under statutes conferring on municipalities power to make ordinances necessary to promote the prosperity and improve the morals, order, comfort and convenience of the municipality and its inhabitants. See Bourland v. Pollock, 157 Ark. 538, 249 S. W. 360.

(2) Ark. Stat. Ann. §§ 19-2702 — 19-2719 (Repl. 1956) does delegate the power of eminent domain to cities, but only for the purpose of acquiring ports, harbors, river-rail and barge terminals. The Act specifically mentions wharves, docks, piers, quays, elevators, compresses, refrigeration storage plants, warehouses and landing places and basins and other structures and any and all facilities needful for the convenient use of the same in aid of commerce, including belt line roads and highways and bridges and causeways, shipyards, shipping facilities and transportation facilities incident thereto and useful or convenient for the use thereof. Industrial sites or parks are not even remotely suggested. The doctrine of ejusdem generis would require their exclusion from the contemplation of the Act.

(3) The Act authorizing the creation of a Port Authority probably should not be considered because there is no effort on the part of that authority to take appellees’ property. This is attempted by a city ordinance. Even if the Port Authority were acting, however, its powers of eminent domain (§ 19-2723) can be exercised to acquire property only for terminal railroads and structures, including railroad crossings, airports, seaplane bases, naval bases, wharves, piers, ships, docks, quays, elevators, compresses, refrigeration storage plants, warehouses, and other riparian and littoral termináis and structures and approaches thereto, transportation facilities needful for the convenient use of the same, belt line roads and highways and causeways and bridges. None of these purposes for appellees’ property are even remotely suggested in the city ordinances, pleadings, or testimony.'

(4) Ark. Stat. Ann. §§ 19-3101 — 19-3108 (Reph 1956) is an Act implementing Amendment No. 18 and providing for creation of industrial commissions authorized by this amendment. This Act only authorizes the use: of the proceeds of a special" tax or bond issue authorized thereby. The amendment does not purport to delegate the power of eminent domain. These proceedings are not under the provisions of either the constitutional amendment or its implementing act; so we need not decide whether the section of the Act authorizing the use of these funds for the acquisition of industrial sites can be considered a delegation of the power of eminent domain.

(5) Appellant seeks, to find the power in the rather general words, "other lawful purposes”, found in § 35-902 Ark. Stat. Ann. (Bepl. 1962). This court has already held that no such broad and liberal construction can be given this section. City of Osceola v. Whistle, 241 Ark. 604, 410 S. W. 2d 393. While the appellant urges that the Act should not be given such an extremely narrow construction, this clause cannot, in any event, be extended beyond the municipal purposes provided for in the Act of March 9, 1875 (as amended), of which the clause is a part.

Thus, we find no delegation to the city of the power of eminent domain by the state under which this taking-can be sustained, if indeed the state has any such power in view of the use to which the property would be put. A state cannot grant greater powers to a municipal corporation than it possesses. McClendon v. City of Hope, 217 Ark. 367, 230 S. W. 2d 57. Without the consent of the owner, private property cannot be taken for private use, even under the authority of the legislature. Roberts v. Williams, 15 Ark. 43; Mountam Park Terminal Railway Co. v. Field, 76 Ark. 239, 88 S. W. 897; Gilbert v. Shaver, 91 Ark. 231, 120 S. W. 833; Ozark Coal Co. v. Pennsylvania Anthracite R. Co., 97 Ark. 495, 134 S. W. 634.

Whether or not a proposed use for which private property is to be taken, even with legislative sanction, is a public or private us a judicial question which the owner has a right to have determined by the courts. Mountain Park Terminal Ry. Co. v. Field, supra; Ozark Coal Co. v. Pennsylvania Anthracite R. Co., supra; Cloth v. Chicago R. I. & P. Ry. Co., 97 Ark. 86, 132 S. W. 1005; Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49.

Private property can be taken under the power of eminent domain only for a public use. For a use to be public it is necessary that the public shall be concerned in the use to be made thereof and the purpose for which the property is to be used must in fact be a public one. Cloth v. Chicago R. I. & P. Ry. Co., supra; St. Louis I.M. & S. Ry. Co. v. Petty, 57 Ark. 359, 21 S. W. 884, 20 L.R.A. 434.

As this court said in the Petty case, where the delegated power of eminent domain was being exercised by a railroad:

“* * # a railway cannot exercise the right of eminent domain to establish a private shipping station for an individual shipper. If the station is for the exclusive use of a single individual, or a collection of individuals less thian the public, that stamps it as a private use, and private property cannot be taken for private use. The fact that the railway’s business would be increased by the additional private facilities is not enough to make the use public.”

The findings of fact by the trial court that appellees’ lands were to be used to place improvements thereon and otherwise prepare the lands for industrial sites for sale, or lease to private industries and that the use was not as a site for a port facility, not being clearly against the preponderance of the evidence, would lead to the legal conclusion that the use is not a public one for which the power of eminent domain may be exercised.

But appellant seeks to obtain a different result by saying the determination of the necessity for the use closes the inquiry by the courts, relying on Woollard v. State Highway Commission, 220 Ark. 731, 249 S. W. 2d 564 and State Highway Commission v. Saline County, 205 Ark. 860, 171 S. W. 2d 60. This contention is not well founded because the question in those cases related to the necessity of the taking for an admitted public use — highway construction. In the Woollard case the question was whether right-of-way could be taken where it was needed for future, not present, use. The question in the Saline Comity case had to do with location and route of a highway. Neither question is involved here.

The city also seeks to justify taking of industrial sites as a public use under the authority of such cases as Hackler v. Baker, County Judge, 233 Ark. 690, 346 S. W. 2d 677; Wayland v. Snapp, 232 Ark. 57, 334 S. W. 2d 633. These cases refer to industrial development as a public purpose insofar as expenditure of tax funds is concerned. The constitutional questions considered were whether the legislation violated those sections of our constitution: (1) Prohibiting a city or county from becoming a stockholder in or appropriating money to, or lending its credit to a company; (2) prohibiting expenditures in excess of revenues; (3) prohibiting exemption of any property from taxation, except that used exclusively for public purposes; (4) prescribing the jurisdiction of county courts,, and (5) permitting a county to issue bonds for industrial development purposes. Nowhere in either of these cases is there any discussion that leads to the conclusion that use of private property taken under eminent domain for sale to private industries is a “public use” under our constitution and statutes. This would also lead to tbe conclusion which would permit the taking of the buildings for a welfare association, under the authority of Bourland v. Pollock, 157 Ark. 538, 249 S. W. 360, as hereinabove pointed out. That a project is one for which public funds may be expended is not a sufficient basis for finding that use of the property is a public use justifying the taking of private property.

Appellant also relies on the decision, in Sublett v. City of Tulsa, 405 P. 2d 185 (Okla. 1966). It is significant that the Oklahoma Constitution prevents the denial of the right of the State to engage in any occupation or business for public purposes. We prefer the result reached in Hogue v. Port of Seattle, 54 Wash. 2d 799, 341 P. 2d 171. There it was held that the Port of Seattle could not constitutionally acquire well-developed agricultural and residential lands for industrial development purposes by eminent domain as the use was private, not public. It was further held that before the power of eminent domain could properly be exercised, the courts must find that the proposed use of the property is a really public one. The condemning authority in that case had contended that the taking of this land was incidental to the reclamation of certain marginal lands in the proposed industrial district, just as appellant contends that this industrial park is incidental to the establishment of a Port.

The city also contends that the housing authority cases constitute precedent and authority for its contention that the proposed use of this, property is a public use. Appellant cites Hogue v. Housing Authority of North Little Rock, 201 Ark. 263, 144 S. W. 2d 49, and Rowe v. Housing Authority of City of Little Rock, 220 Ark. 698, 249 S. W. 2d 551, on the basis of the holding that the mere fact the property taken might later lie sold to another private individual or corporation would not render the use private or the Act conferring the power of eminent domain unconstitutional. Apparently appellant feels that this makes the purpose of the attempted taking here a valid public use. What it overlooks is that in these cases the purpose of the taking-expressed in the Acts authorizing the creation of these authorities was slum clearance, elimination of unsafe, unsanitary housing, and providing safe and sanitary dwelling accommodations — which the courts found to constitute a public use. The right of sale of portions of the property after the public purpose was accomplished was held not to make the use any the less public nor the Acts unconstitutional. Here, the sole and only purpose is to acquire the property of appellees now being used for agricultural purposes and to sell or lease it to private1 industries. Those Acts granted the power of eminent domain in specific words and stated that the objectives were not only public purposes, but public uses.

If the people of Arkansas desire to confer the power on municipalities to acquire private property by eminent domain for industrial development, they should do so in clear and unmistakable language in view of the provisions of our constitution.

Our holding is not intended, nor should it in anywise be taken, to be critical of the commendable efforts of the public-spirited citizens constituting the Little Rock Port Authority or its Board of Directors or other officials or agencies who have collaborated in these projects. On the other hand, they are to be commended, not only for the expenditure of their energies, but for their frankness and candor in their statements and actions in treating the subject of this litigation. Yet, when commendable desire for progressive development and fundamental constitutional principles conflict, there is no doubt that the latter must prevail. Otherwise, constitutional government- — government by law, on which our system will stand or fall — could not exist.

The decree is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Ambort Med. Products v. Intra Products
    5-4126
    411 S. W. 2d 662
    Opinion delivered February 20, 1967

      Robert C. Do'wmé for appellant;

      W. J. Walker ior appellee.
   J. Fred Jones, Justice.

The appellee, Intra Products, Inc., hereinafter referred to as “Intra,” is a manufacturer of drugs and pharmaceutical products, and the appellant, Ambort Medical Products, Inc., hereinafter referred to as “Ambort,” is. a distributor of such drugs and products in Arkansas and surrounding areas. This case involves a suit by Intra against Ambort for the sum of $1,376.02 allegedly past due on open account. Ambort filed answer and counterclaim for $2,178.53.

The case was tried to the trial court sitting as a jury and the “substantial evidence rule” applies here. The trial court entered judgment for Intra for $1,376.02, and for Ambort, on its counterclaim, for $104.00 and Ambort has appealed.

As background for the relationship of the parties, appellant had purchased drugs and related products from appellee for a number of years prior to 1962. In late 1961 or early 1962, a breakdown occurred in the structure of an aqueous hormone product produced by appellee which made the product unfit for the use for which it was intended. All of the defective product was voluntarily recalled by appellee under advice and directions of the Federal Food and Drug Administration.

Some of the defective product had been distributed to appellant, who had in turn, sold and distributed some of it to doctors and other customers in its territory, and appellant was required to recall these sales. Appellant was given credit on its account with appellee for the products returned to appellee, but appellant contended that appellee owed for additional expenses incurred by appellant in picking up the defective product from its customers.

After considerable negotiations were carried on between the parties, appellee finally credited appellant’s account to the extent of the balance owed by appellant in the approximate amount of $500.00. Appellant and appellee ceased doing business with each other for a short time but later resumed their business relations but on more restricted month to month credit basis.

As background for the present litigation, in December 1963, appellant owed appellee $1,376.02 for drugs and related' products purchased in October and November of 1963. In December 1963, appellant advised appellee that there was a “black precipitate” in some of the vials of “aqueous estrone,” received by appellant from the appellee. Appellee advised the appellant that this difference in color was brought about by change in temperature and only affected' the appearance of the product and not its safety or fitness for use, and appellee suggested to appellant that the vials showing this change be picked up from doctors’ offices, upon complaint or request by the customer, and in the course of regular routine business calls by appellant’s salesmen.

When appellant refused to pay its account and claimed an offset against the account for the alleged expenses it had incurred in locating and picking up some of the discolored products, appellee filed suit on the account and appellant filed counterclaim for the expense it allegedly incurred.

Appellee sent one of its salesmen on a special trip to Missouri for the purpose of picking up and returning an order of several vials of the product at a cost of $104.00, and appellant picked up other vials from various doctors ’ offices over a period of several months. Appellant did not request its customers by phone to return any of the product that appeared bad, and on this point at page 75 of the transcript appears testimony as follows:

“Q. When did you make your last call with regard to this picking up?
A. Well, it is hard to say that.
Q. Approximately?
A. I am still making those calls.
Q. Still making calls to pick it up and it has been — •
A. Two and a half years.
Q. Two and a half years?
A. Yes, because other drugs—
Q. Did you send telegram to any of the doctors, you call doctors on telephones make an effort to get in touch with doctors?
A. In search for these things no sir? I didn’t. Cost of telegram is a lot more than going to see them.”

At the trial of the case, appellant contended, as set out on pages 27, 30 and 33 of its brief as follows:

“I sent our Mr. Chudy to Missouri to pick up 25 bottles on a weekend and told him to spare no expense to get up and get them. He did and charged the company $104.81.1 have that check if you want to see it. I paid him the following Saturday when he brought the merchandise in. There was no other occasion for this, trip other than to pick up this. I made the rest of the pick ups.. I had to search 1,500 accounts to satisfy myself that there was no more of this out and in so doing I have it written down. Of the 1,500 searches, 143 calls produced results. That is where I found bad drugs. I didn’t sell the doctor nothing and these are calls I am charging these people. In figuring my expenses in making such a call, the national average is $14.00 a call to call on a doctor, wait 2yk or three hours and any drug firm will .confirm this in Arkansas. We don’t have expenses national people do, it don’t cost as much. At $8 a call, that is gasoline, insurance, oil, motel, food, parking meters, storage, long distance calls and then your office backing you up.
‘ ‘ I had 143 calls and I estimate $8.00 a call. As near as I can figure, that includes all expense I went to in getting products back off my customer’s shelves.
"I am not telling the court that when I called on these doctors I called on them for the sole purpose of picking up these products and didn’t talk about selling any other product or anything. I called on accounts and tried to handle this like everything was fine. If I sold an order or if I made some other adjustment not having anything to do with this, we didn’t charge it against this.”

Appellant relies on three points which we now discuss in order.

1
"The finding of the trial court that appellant had not met the burden of proving that trips made by appellant were made solely to pick up that defective products is without any substantial evidence to support it and is reversible error. ’ ’

We have examined the record and agree with the trial court on this point.

2
“The court committed reversible error in finding that appellee should have judgment ‘because this all had to do with Vitamin B-12.’ ”

Regardless of whether the account was for Vitamin B-12 appearing as Exhibit “A” on page three of the transcript or for the other item of the exhibit through page eight of the transcript, there is no evidence in the record that appellant had paid this, account and did not owe it when the suit was filed. The trial court’s finding under point No. 2 was not reversible error.

3
“The court erred in refusing to allow appellant $239.63 for its costs in replacing the defective products of appellee.”

Appellant did not return, or offer to return, the products to appellee and request credit or refund.

At pages. 67 and 73 of the transcript, Mr. Ambort testified as follows:

“Q. Mr. Lusher said something about samples or vials you have not returned, have you been holding these I assume for this particular hearing today?
A. Yes, sir, I have.
Q. You propose to either return them to Mr. Lusher or Food and Drug Administration?
A. Yes, sir, and I have got another four humdred some odd dollars in my truck outside.
Q. You say you carrying that stuff in your truck, is that where salesmen—
A. Was in my truck, we are not peddlers, ship from warehouse under constant control, these are in my truck today, I don’t know what disposition I am going to make,, take a hammer and bust it up or give it back.” (Emphasis supplied)

We find that there is substantial evidence in the record to sustain the* judgment of the trial court in this case. The judgment is affirmed.

Affirmed.


author: Conley Byrd, Justice.

text:
    B. & P. Inc. v. Letha Ann Norment
    5-4090
    411 S. W. 2d 506
    Opinion delivered February 20, 1967

      Bussell and Hurley for appellant.

      Harold Sharpe for appellee.
   Conley Byrd, Justice.

This appeal is prosecuted from a summary judgment entered by the trial court in favor of appellee, Letha Ann Norment, because of appellant B. & P. Inc.’s failure to respond to certain requests for admissions in the manner required by Ark.' Stat. Ann. § 28-358 (Eepl. 1962).

The litigation was initiated by a foreclosure petition upon a mortgage. Attached to the complaint was the note, executed in Forrest City, Arkansas; the mortgage to Bevis Shell Homes, Inc., showing a Tennessee acknowledgment; and the assignment to appellant B. & P., Inc.

After answer, appellee filed on November 5, 1965 and again on December 7, 1965 requests for admissions of fact. Appellant, by these requests for admissions, was asked to admit, among other things, that the mortgage was executed in St. Francis County, Arkansas, and that Bevis Shell Homes, Inc., to whom the note and mortgage was executed, was neither an Arkansas corporation nor a foreign corporation licensed to do business in the state of Arkansas on the date the mortgage and note were executed.

Appellant made no reply to the requests until after appellee filed a motion for summary judgment in March of 1966. The first responses filed by appellant in April of 1966 were not verified and were signed only by appellant’s attorney. About two weeks later, appellant’s second responses to the requests for admissions were filed, containing only the verification of appellant’s attorney.

On appeal, appellant contends that the trial court abused its discretion in taking the requests for admissions as admitted because there was no time limit placed in the requests for admissions in which appellant should respond, and because in Kingrey v. Wilson, 227 Ark. 690, 301 S. W. 2d 23 (1957), we permitted the answers to requests for admissions to be verified at the beginning of the trial.

In Young v. Dodson, 239 Ark. 143, 388 S. W. 2d 94 (1965), we held that responses to requests for adis-m sions verified by a party’s attorney did not comply with § 28-358, supra, and that even though the responses were verified by the attorney, the requested facts would stand as admitted.

In Kingrey v. Wilson, supra, we held that the trial court did not abuse its discretion in permitting the answers to be verified at the beginning of the trial. However, when Kingrey v. Wilson was decided, the lawyers had not had as much time to become acquainted with the penalties invoked upon failure to comply with the discovery procedures provided in Act 335 of 19'53, as is the situation today. Furthermore, the record is silent as to any request by appellant for permission to verify properly the answers to the requests for admissions.

Nor can we agree with appellant that it was misled by the appellee’s, failure to specify the time within which the requested facts were to be admitted or denied. Obviously, more than three months had elapsed from the date the requests were made until the date of the motion for summary judgment, and another month elapsed between the date of the summary judgment motion and the date of the second response. Therefore, the trial court did not abuse its discretion in accepting the facts set forth in the requests for admissions as being admitted. Ark. Stat. Ann. § 28-358, supra.

The facts thus admitted, together with the facts pleaded by appellant, show that Bevis Shell Homes, Inc., a Florida corporation, entered into a mortgage upon real estate in the state of Arkansas contrary to the provisions of Ark. Stat. Ann. § 64-1202 (Repl. 1966), which provides:

“any foreign corporation which shall fail or refuse to file its articles of incorporation or certificate as aforesaid, cannot make any contract in the State which ccm be enforced by it either in law or in equity, and the complying with the provisions of this act after the date of any such contract, or after any suit is instituted thereon, shall in no way validate said contract.” (Emphasis supplied.)

It follows that under the terms of the statute the trial court properly entered summary judgment for the appellee.

JSTor can appellant find any relief in Furst v. Brewster, 282 U. S. 493, 51 S. Ct. 295, 75 L. Ed. 478 (1931), and UPI v. Hernreich, d/b/a Station KZNG, 211 Ark. 36, 106 S. W. 2d 317 (1966), which- hold the statute inapplicable to transactions in interstate commerce, for the taking of a note and mortgage is not ordinarily a transaction in interstate commerce. Hemphill v. Orloff, 277 U. S. 537 (1928), and Blumenstock Bros. v. Curtis Pub. Co., 252 U. S. 136 (1920). Furthermore, if such an issue were involved, appellant had the duty of pointing it out to the trial court, either in its pleadings or by affidavits in response to the motion for summary judgment. Mid-South Ins. Co. v. First Nat’l Bank of Fort Smith, 211 Ark. 935 110 S. W. 2d 873 (1967).

Affirmed.


author: C'onley Byrd, Justice.

text:
    S and S Construction Co. et al v. A. J. Stacks et al
    5-4116
    411 S. W. 2d 508
    Opinion delivered February 20, 1967

      S. Hubert Mayes Jr. for appellant.

      Felver A. Rowell Jr. for appellee.
   C'onley Byrd, Justice.

Appellants, S and S Construction Company and Marvin Sherman, bring this appeal from a tort judgment in favor of the owner, driver and passengers of an automobile which was involved with appellants’ 2010'John Deere tractor, equipped with a front end loader and back hoe attachment and being used in construction of a sewer near Highway 64 in the city of Plumerville, Conway County, Arkansas. Appellants rely upon two points only for reversal:

I. The trial court erred in admitting the opinion testimony of the investigating officer as to the point of impact.
II. The verdicts for personal injuries of appellees in this case were grossly excessive.

The facts show that appellees, Mr. A. J. Stacks et al, were traveling west on Highway 64 in the city of Plumerville when they struck the front end loader scoop with the right side of their vehicle, and then struck a cotton trailer proceeding in the opposite direction. The driver and two passengers were in appellees’ vehicle, and the operator and two witnesses for appellants were present at the time of the occurrence, all of whom testified as to the point of impact. Notwithstanding, appellees called the officer who arrived at the scene of the accident some twenty or thirty minutes later and asked him if he were* able to determine the point of impact between the 2010 John Deere pay loader and the Stacks automobile. The state trooper testified that from the debris and the tire marks he was so able to determine the point of impact. Over the objection of appellants the trooper was permitted to testify as follows:

“The Stacks car was traveling west — Of course, when I arrived at the scene, as I said, the payloader was sitting off the pavement on the shoulder, but had been in this position, digging a ditch putting in a sewer system. And on the front of the payloader is a ditch digger; and on the back of this loader is a scoop where they pick up the dirt and load it on the truck. It was. sitting in this position digging this ditch, with the scoop overhanging out into the west bound lane of traffic. The vehicle traveling west hit the back end of the scoop of the payloader.” (Emphasis added.)

We had a similar problem before us in Reed v. Humphreys, 237 Ark. 315, 373 S. W. 2d 580 (1963). We there said:

“The collision here in question was uncomplicated and there were photographs of the automobile, truck, and the scene of the accident, showing gouges and marks on and off the road, as well as. testimony of witnesses who vividly described the conditions prevailing and the scene. The police officer’s testimony conflicts in part with testimony of some of appellee’s witnesses who arrived at the scene before the officer; however, virtually the only fact testified to by the officer not already clearly covered by testimony of witnesses for both appellee and appellants was the location of debris on the highway, which the officer testified about, in detail and at length. As was stated in the Waters case, supra, ‘The facts to be determined were not complicated. This was a relatively simple collision. Certainly there was no evidence to indicate that it was beyond the jury’s ability to understand the facts and draw it’s own conclusions. The state of the record being thus, we find that the trial court erred in allowing appellee to resort to such expert opinion.’
“It follows, therefore, in the present case, that the trial court committed no error in excluding the police officer’s, testimony. In so holding, we take this occasion to restate the rule so succinctly stated in Cahil v. Bradford, 172 Ark. 69, 287 S. W. 595, ‘Opinion evidence is not admissible when the fact is susceptible of being adequately exhibited to the jury in the ordinary way. ’ ’ ’

Therefore, we hold that the admission of the officer’s opinion testimony as to the point of impact was error.

While the damages awarded appellees are a bit liberal, we need not review them here since the issue may not arise on a new trial.

Reversed and remanded.


text:
    Doris May, etc. v. Spivey Chevrolet Co., Inc.
    5-4128
    411 S. W. 2d 528
    Opinion delivered February 20,1967

      J. B. Milham for appellant.
    No brief for appellee.
   Conley Byrd, Justice.

This collateral attack on an order removing the disabilities of a minor was initiated in the trial court by appellant Doris May as next friend of her son, Wayne May, aga'nst the appellee, Spivey Chevrolet Company. Appellant elected to stand on her complaint and prosecutes this appeal from an order sustaining appellee’s demurrer. No brief has been filed by appellee.

Early in 1966, appellant had obtained an order from Saline Chancery Court removing her son’s disabilities. Later, appellant filed this action against appellee seeking to have the order removing disabilities modified, for cancellation of a note and contract and for other relief. Appellee demurred to the complaint and amendment to the complaint, which were properly sustained.

Since enactment in 1869 of the procedure for removal of disabilities of minors, this court has consistently held that a decree valid on its face removing disabilities of a minor may not be attacked collaterally. Hindman v. O’Connor, 54 Ark. 627, 16 S. W. 1052; Young v. Hiner, 72 Ark. 299, 79 S. W. 1062; Gilmore v. Union Sawmill Co., 178 Ark. 297, 10 S. W. 2d 517. Discussing these cases in Wilson v. Magnolia Petroleum Co., 181 Ark. 391, 26 S. W. 2d 92, Justice Hart observed, “No doubt numerous rights have grown up under these decisions, and the holding of the court has become a rule of property.” Our present statute, Ark. Stat. Ann. § 34-2001 (Repl. 1962), with the added provision that judges may act in vacation, is a re-enactment of the 1869 law. Obviously, since the minor is not a party to this action, and the decree removing the disabilities of the minor may not be collaterally attacked, the demurrer was properly sustained for defect of parties.

Affirmed.


author: Lyle Brown, Justice.

text:
    Planters Lumber Company, Inc. v. The Wilson Company, Inc.
    5-4108
    413 S. W. 2d 55
    [Supplemental opinion on rehearing. Rehearing denied.]
    [Original opinion delivered February 13, 1967, p. 1005, 413 S. W. 2d 55.]
   Lyle Brown, Justice.

Appellee, The Wilson Company, Inc., contends there is no distinction between the case at bar and Sebastian B. & L. Assn. v. Minten, 181 Ark. 700, 27 S. W. 2d 1011 (1930). In Minten the lender disbursed the full amount of the mortgage money. In Minien there was no guarantee placed of record whereby the building and loan association was committed to a stipulated advancement for construction purposes. In both these respects the opposite is true in the case at bar.

We are asked to clarify our opinion with respect to Wilson’s priority for interest. As to Lot 2, Wilson is entitled to priority for interest on $11,334.19; as to Lot 4, Wilson is entitled to priority for interest on $10,805.72. With regard to clarification requested by appellee on certain minor items, it is sufficient to say that the chancellor made awards in these respects and we do not disturb them on appeal.


author: Carleton Harris, Chief Justice.

text:
    George Alexander Brown v. Adept, Inc., Louise Swetnan, Johnny Myers et al
    5-4118
    411 S. W. 2d 868
    Opinion delivered February 27, 1967

      Rose, Meek, House, Barron,, Nash & Williamson, for appellant.

      Fred Newth, Jr., for appellees.
   Carleton Harris, Chief Justice.

Appellees, Adept, Incorporated, an Arkansas corporation, Johnny Myers, Louise Swetnan, W. B. McSwain, Ted W, Calva, J. 0. Anderson, Joe Calva, J. B. Fowler and Buel C. Worth-en, instituted suit against, among others, George Alexander Brown, appellant herein, to restrain him from extracting, pumping, or diverting waters of Old River Lake below the natural water level of the lake. A hearing was conducted on September 9,1965, for the purpose of determining whether a temporary injunction should be issued during the pendency of the suit. At the conclusion of the hearing, the court orally ordered Brown to cease pumping water from the lake as long as the water level was 12 inches below the spillway; however, no written order was entered. On July 18, 1966, appel-lees filed a motion asserting that Brown was pumping water from the lake in violation of the court’s order of September 9, 1965, and the court was asked to find appellant in contempt. On July 19, a special Chancellor passed the question of contempt until a subsequent date, but again directed Brown to discontinue the pumping of water from Old River Lake immediately, and further required appellant to perfect a surety bond in the amount of $1,000.00, “guaranteeing this court that the defendant will not pump water from Old River Lake until further orders of this court. ’ ’ A written order was entered. No bond was required of the plaintiffs (appel-lees) in either instance. Thereafter, on August 4, 1966, a hearing was held before the regular Chancellor on the motion to hold appellant in contempt of court. Since the original order had been made orally, nearly a year before, the Chancellor, stating that he could not remember the exact language used, refused to hold Brown in contempt, but appellant was again enjoined and restrained from pumping, and the court further directed that the surety bond made by Brown be continued in effect. From the order so entered, appellant brings this appeal. For reversal, it is contended that the court erred in awarding a temporary injunction to appellees without first requiring a bond in an adequate amount, and with sufficient sureties, insuring that appellees would pay to Brown any damages resulting from improper issuance of the temporary injunction.”

Chapter 2 of Title 32, Arkansas Statutes, 1962 Replacement, deals, with “Proceedings for Injunction.” Section 32-206 provides as follows:

“In every case, the court or judge granting an injunction shall specify in the order therefor an amount, for which the party obtaining it shall give security in a bond to the party enjoined, before the injunction shall become effectual; which amount shall be sufficient to cover all the probable damages and costs,’that may be occasioned by the injunction. The court or judge may prescribe the effect of the bond, so as to secure to the party enjoined the damages to which he may become entitled, if it is finally decided that the injunction ought not to have been granted.* * *”

Section 32-207 states:

“The order of injunction shall not be issued by the clerk, until the bond mentioned in the last section has been executed in his office by one [1] or more sufficient sureties of the party obtaining the injunction.* * *”

Again, Section 32-212 provides:

“Where notice of the application for an injunction has been given to the party enjoined, it shall not be necessary to serve the order upon him; he is bound by 'the injunction as soon as the bond required of the adverse party is executed.”

In Harahan Viaduct Improvement District v. Martineau, 172 Ark. 189, 288 S. W. 10, the question here presented was passed upon by this court. We said:

“Our statute provides as follows: ‘In every case, the court or judge granting an injunction shall specify in the order therefor an amount for which the party obtaining it shall give security in a bond to the party enjoined, before the injunction shall become effectual, which amount shall be sufficient to cover all the probable damages and costs that may be occasioned by the injunction.’ Section 5801, C. & M. Digest. Under the above statute, before the injunction order by the court could be issued or become effectual, the court must specify that the party obtaining it shall give a bond to the party enjoined, naming an amount sufficient to cover all possible damages and costs that may be occasioned by the injunction. Compliance with the above statute on the part of the judge of the chancery court was absolutely essential to his jurisdiction to direct the clerk to issue the order and to have the order put into effect. Without compliance with the above statute, any order issued by the clerk would be absolutely void, and disobedience -of the • order on the part of the defendants could not be held a contempt of the court or of the judge issuing the order. In other words, a compliance with the above statute is essential to the jurisdiction of the chancery court, or judge in vacation, to have the order for a temporary injunction issued and made effectual.

“* * * The chancery court or judge had no jurisdiction to order the issuance and enforcement of a temporary injunction without complying with the above statute. ’ ’

Appellees present two arguments, the first being that the statutory requirements for a bond only apply in those cases where a temporary injunction is entered before a hearing. We do not agree with this interpretation for the statutes make no such distinction. The making of the bond by the party obtaining a temporary injunction seems to be mandatory in this type of case, and, of course, the purpose of the bond is to protect the party against whom the injunction is directed, if it develops when the case is heard on its merits that the temporary injunction should not have been granted.

The second contention advanced by appellees is that the injunctions entered actually were not temporary, but rather were permanent, and appellee states that the court is empowered to enter permanent injunctions without requiring a bond from the plaintiff. We agree with this last statement, but we disagree with the statement upon which it is predicated, i. e., that the injunctions granted were permanent. Normally, it would appear that after three hearings, any order entered would be of a permanent nature, but an examination of the record discloses that no hearing involving the merits of the case was ever held. In fact, when discussing the order to be entered on August 4, counsel for appellant asked:

“This is a temporary order pending the hearing on its merits!”

The court replied:

“If it is a temporary order,- whatever it may be called, temporary, in between, quasi-permanent,'it is an order prohibiting pumping in Old River Lake, reiteration of the July 21, 1966, order of Special Chancellor Louis Rosteck.”

It will be noted that every descriptive word uséd by the court denoted the temporary character of the order; the' court never used the word, “permanent.” We hold that, under the authority heretofore cited, the injunction issued was not binding.

Appellant also attacks the validity of the court’s order in requiring a bond from appellant to’ the effect that he would “comply with the terms of the temporary (our emphasis) injunction entered on the 21st day of July, 1966. We agree that there is no authority for this action, under the circumstances, of this case; enforcement of the court’s order (if it had been legally entered) would properly be through contempt proceedings.

Reversed.

       This section is identical to Section 32-206.

       This quotation from the bond itself is further evidence that the order was only temporary. At the conclusion of the hearing on August 4, the following colloquy took place between the court and counsel:
      “Mr. Haley: No bond is required of Plaintiffs?
      “The Court: No bond of the Plaintiffs, a one thousand dollar bond in the July 21, 1966, order will be required of the Defendant as - Judge Eosteck has required on his hearing. Any other questions.
      “Mr. Haley: We previously filed a bond referring to the July 21, 1966, order and if the Court will void the necessity of filing additional bond, if this bond were deemed sufficient and approved for purposes of this subsequent order.
      “The Court: The bond was issued covering that very order and this Court is reiterating and affirming that order (our emphasis) and this bond is sufficient/’


author: Gtbobge Rose Smith, Justice.

text:
    Bobby J. Lawson et al v. Taylor Hotels, Inc., et al
    5-4101
    411 S. W. 2d 669
    Opinion delivered February 27, 1967

      Thomas E. Sparhs, for appellant.

      Glint Huey, Paul K. Roberts and Tom Haley, for appellee.
   Gtbobge Rose Smith, Justice.

The only question now presented is whether the appellants, Bobby J. Lawson and Lawson & Lyon Hotel, Inc., as lessees of the Southern Hotel in the city of Warren, aré entitled to specific performance of an option in the lease by which they had the right to purchase the hotel at any time during the term. The chancellor refused to order specific performance, holding that the lessees’ failure to pay or even to tender two delinquent monthly installments of rent precluded them from exercising the option to purchase. We are unable to say that the chancellor was wrong.

The material facts must be winnowed from an extensive record. On December 30, 1963, the appellee Taylor Hotels, Inc., as owner, leased the hotel land and building- to Omar Greene for a term of one year beginning January 13, 1964. Tbe rent was $525.00 a month, payable in advance on the first day of each month. The lessor agreed to keep in force an existing $70,000.00 insurance policy on the hotel. The lease contained an option by which the lessee might buy the property by assuming an outstanding purchase-money mortgage and paying an additional $10,000.00 — a third in cash and the rest over a period of ten years.

By assignment the appellants acquired the leasehold interest. H. E. Taylor, president of the corporate lessor, died in June, 1964. In August the lessees, began negotiating with Taylor’s widow for the purchase of the hotel, not under the option but under a new proposal by which they would have bought the Warren Music Company along with the hotel.

. On October 12 the hotel building was destroyed by fire. Two days later the parties reached an agreement about the sale of the music company, but Mrs. Taylor broke off the negotiations about the lots where the hotel had stood. Before the fire she had been asking $30,000.00 for the lessor’s equity in the property — a figure considered by the lessees to be excessive. After Mrs. Taylor’s withdrawal there was no more discussion about a sale of the hotel site.

When the hotel burned there was pending in the chancery court a suit between Taylor Hotels, Inc., and the estate of H. E. Taylor, involving the ownership of personal property. On November 23 Taylor ^Hotels filed in that case a petition reporting the availability of insurance proceeds in the amount of $70,000.00 and asking that $64,977.88 of the money be used to satisfy the outstanding mortgage, with the surplus remaining on deposit subject to the court’s orders. The next day the court entered an order granting the prayer of the petition.

On December 1 the lessees gave notice that they were exercising the option to purchase and also filed an intervention in the chancery case. In that pleading they asked for specific performance of the option to purchase and also asked that the surplus insurance proceeds he paid to them. With the intervention the lessees paid into court a third of the $10,000.00 purchase price and tendered their promissory note for the other two thirds. The chancellor, as we have indicated, held that the lessees’ failure to make the rent payments that were due on October 1 and November 1 barred their right to specific performance.

We think the chancellor was right. There is no contention that the destruction of the hotel building relieved the lessees of their duty to pay rent. That obligation, absent any agreement to the contrary, was not affected by the fire loss. Davis v. Shepperd, 196 Ark. 302, 117 S. W. 2d 337 (1938); Burger v. Boyd, 25 Ark. 441 (1869). Hence the lessees were in the attitude of seeking specific performance when they were themselves in default. That position is not tenable. In Lacey v. Bennett, 210 Ark. 277, 195 S. W. 2d 341 (1946) we held that a party seeking specific performance “must show that he has all the time been ready, able and willing to perform his part of the contract” and that he has complied with the terms of his contract “by performing or offering to perform, on his part, the acts which formed the consideration of the undertaking on the part of the defendant.” In the lease now in question there was no consideration for the option to purchase except the lessees’ agreement to pay rent. Yet no tender of the back rent was made during the thirteen months or more that the case was pending in the trial court.

The appellants argue that the lessor would not have accepted such a tender and that therefore they were excused from making what would have been a useless gesture. Quality Motors v. Hays, 216 Ark. 264, 225 S. W. 2d 326 (1949). There are two flaws in that argument. First, it is by no means certain that the lessor would have refused the tender. The matter was never discussed between tbe parties. While it is true that on October 14 Mrs. Taylor dropped the negotiations for a sale to these appellants and that later on she sought to interest another prospective purchaser in the property, we cannot say with confidence that the tender would have been rejected. Mrs. Taylor had already engaged an attorney and no doubt would have consulted him. There is nothing in the record to indicate what his advice would have been.

Secondly, and perhaps more important, the tender of the delinquent rent, amounting to $1,050.00, would, whether it was accepted or not, have gone far toward establishing the lessees’ good faith in the matter. That good faith was manifestly open to question. After the negotiations fell through on October 14 the lessees made no move until the lessor had committed itself to using the insurance money to pay the mortgage. Then, perhaps sensing a windfall both in the purchase of the hotel site and in the capture of the surplus insurance money, the appellants for the first time declared their intention to exercise the option to purchase.

We think it significant, however, that even in that declaration they acted in such a way as to avoid the possibility of any financial loss.. That is, there was no risk in their tender of a third of the purchase price, because the lessor could not accept that money Avithout binding itself to sell the property. But the situation with respect to the rentals Avas materially different. That debt, under the law, Avas unconditionally due. Thus the lessor might have accepted the past-due rent and still have contested the lessees’ right to purchase the property. Upon these facts the chancellor was not Avithout justification in attaching controlling importance to the lessees’ continued disinclination to pay the rent that was owed.

At the oral argument counsel for the appellants expressed some anxiety about the possibility that the final decree, by reason of its reference to the chancellor’s comprehensive interim findings, might be construed to include a money judgment against the appellants for the overdue rentals. The appellees’ attorney disclaimed any such understanding of the decree; so that issue passes out of the case.

Affirmed.

Byrd, J., disqualified.


author: Paul Ward, Justice.

text:
    Kenneth Johnson v. Pat Nelson
    5-4139
    411 S. W. 2d 661
    Opinion delivered February 27, 1967

      Loftin,, Herrocl & Cole, for appellant.

      Cockrill, Laser, McGehee, Sharp & Boswell, for ap-pellee.
   Paul Ward, Justice.

This is an action to recover for injuries to Kenneth Johnson, age fourteen, (referred to as appellant) brought by his father, Autice E. Johnson. Appellant was struck by a car driven by Pat Nelson (ap-pellee). From a jury verdict in favor of appellee comes this appeal.

Background Facts. Appellee was driving east on Ninth Street in Little Rock, and. when she had crossed or was in the act of crossing Cumberland Street she saw three boys (one being appellant) walking west along the sidewalk on the south side of Ninth Street. Suddenly ap-pellee saw one of the boys (later identified as appellant) step or fall into the street. Appellee allegedly promptly tried to stop her car but could not do so before she hit and injured appellant. The point of impact was about forty feet east of the east side of Cumberland Street.

The only point relied on by appellant is that ‘ ‘ The Court erred in giving an instruction on behalf of defendant for a sudden Emergency . . . .” The instruction referred to was No. 4 which reads:

“A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation.”

We think the above instruction was correct. It is an exact copy of AMI 614, Sudden Emergency. In turn, the AMI instruction is based on and justified by the case of Hooten v. DeJarnatt, 237 Ark. 792, 376 S. W. 2d 272.

Apparently appellant does not argue that the instruction is inherently wrong, but that it was not justified under the testimony in this case. That is, appellant argues there is no substantial evidence in the record from which the jury could find that an emergency actually existed and, if so, that appellee did not cause it. We think the record does contain such testimony. Hansel Boyd, who was at the intersection in his car on the north side of Ninth Street when the accident happened, testified he saw the boys and there was nothing “to suggest there was going to be an accident”. Jerry Horton, who was following behind appellee on the south side of Ninth Street, and who also saw the boys, testified; ap-pellee was not exceeding the speed limit; there was. nothing* to alarm him, and; there was nothing to suggest one of the boys “might wind up in the street”. Thelma Gus-tas, who was. on Ninth Street near the scene of the accident and saw appellant fall in the street, testified:

“Q. Did you see what caused Kenny to be in the street?
A. Well, I don’t know whether he slipped or turned his ankle or stumbled or something to that effect. It seemed like it give way.
Q. All right. Now, when you saw that could you tell us. where Mrs. Nelson’s car was at that time?
A. Well, she looked like she was right on him. Just like it was going — that was it — she hit him. ’ ’

None of the above testimony is denied by any witness.

It must be concluded therefore that there is substantial evidence in the record to justify the trial court in giving instruction No. 4.

Affirmed.


text:
    Jeffery Stone Co. v. Lester H. Raulston
    5-4131
    412 S. W. 2d 275
    Opinion delivered February 27, 1967
    "■Rehearing denied April 3, 1967.]

      Terral, Rawlings, Matthews & Purtle, for appellant.

      Edward Boyett, for appellee.
   Paul Ward, Justice.

This is a Workmen’s Compensation case. Jeffery Stone Company (appellant) is the employer and Lester H. Raulston (appellee) is the claimant. Appellant’s insurance carrier was a defendant and is also one of tlie appellants. Appellee’s claim is based on silicosis.

The Referee denied appellee’s claim, the full Commission allowed the claim, and the Circuit Court upheld the Commission.

Appellant here urges four separate points for a reversal. These points will be designated and discussed in the order presented to us. Necessary references to the record will be made as each point is discussed.

One. The essence of appellant’s first contention is that appellee must offer more than mere substantial evidence that his disability was caused by silicosis because he was not employed for a period of five years. A basis for this contention is Ark. Stat. § 81-1314 (b) (2) (Repl. 1960). The portion of subdivision (2) applicable to the facts here reads as follows:

“In the absence of conclusive evidence in favor of the claim, disability or death from silicosis ... shall be presumed not to be due to the nature of any occupation within the provisions of this section, unless . . . the employee has been exposed to the inhalation of silica dust . . . over a period of not less than five (5) years . . . .”

We see no merit in this contention.

Both the Referee (who denied the claim) and the full Commission found appellee had been in the employment of appellant for a period of more than five years, and we think they were correct in doing s.o. Appellant admits appellee began work on June 15, 1959 and quit (or had to leave) on October 8, 1964 — a period of three months and twenty three days more than five years. However, there are some deductions which appellant would make as presently shown.

(a) It is true that there was a period of two months and ten days when appellee did not work. However it does, not clearly’ appear that he was not still in the employment of appellant during this time. Appellee said he thought he was. At any rate we think the Commission wa. justified in so finding. Even if he was not, that still leaves a period of one month and thirteen days over the five year period.

(b) The record shows that appellee was not actively working, due to illness, on two different occasions totaling a few days more than the - one month and thirteen days mentioned above. Appellant apparently contends that these two sickness periods should also be deducted. On this point we agree with appellee that, under a liberal construction of the statute in favor of the claimant, these sick periods should not be deducted from his total period of employment. To carry appellant’s interpretation ■ of the statute to its fullest possibility an employee could be penalized for Saturdays, Sundays, holidays and one or two days of sickness. In any event, there is substantial evidence to support the Referee and the Commission on this point.

There is no merit in the contention that appellee became disabled prior to October 8, 1964. In the case of Ark. Coal Co. v. Steele, 237 Ark. 727, 375 S. W. 2d 673, we said:

“In silicosis cases the statute commences to run at the time of disablement and not from the time the claimant learns that he is suffering from the disease, and disablement does not occur until the employee is unable to work and earn his usual wages.”

Also, in Hixon Coal Co. v. Furstenberg, 225 Ark. 568, 284 S. W. 2d 120, it is stated:

“In silicosis, the injury may occur many years before the disease becomes manifest, as the accumulated effects of the deleterious substance are of slow, insidious nature.”

Two. We cannot agree with appellant’s contention there is no substantial evidence to support a finding that appellee’s disability was caused from silicosis.

Ark. Stat. Ann. § 81-1314 (Repl. 1960) deals with occupational diseases, and subsection (b) (1) reads:

“ ‘Silicosis’ means the characteristic fibrotic con dition of the lungs caused by the inhalation of silica dust ...”

It would serve no useful purpose to set out in detail the voluminous testimony of some four or five doctors on this issue, some of which is somewhat conflicting if not confusing and irrelevant. It suffices, we think, to point out some facts and testimony to show substantial evidence to support the Commission on this point.

In June of 1959 appellee was a strong healthy man six feet and four inches tall, weighing 192 pounds. In 1964 he was admittedly totally disabled, weighing around 157. It is also admitted that for years he worked under conditions where he was exposed to the inhalation of silica dust. Testimony shows that at times ap-pellee had dust all over him, and even in his nose and mouth to the extent he was forced to wash before drinking water — sometimes his. teeth were not visible. There was testimony that gravel picked up where he worked contained as much as 60 silican dioxide. One doctor diagnosed appellee’s ailment as pulmonary fibrosis. Another doctor’s report showed appellee had a fibrotic process with fibrosis of both lungs. Still another doctor said appellee showed a finely granular fibrotic appearing process throughout both lungs. One doctor said ap-pellee was totally disabled because of silicosis.

Three. It is here argued by appellant, for the first time, that it was error to allow appellee full compensation for total disability caused by silicosis. This argument is based on certain medical testimony that appel-lee was also suffering from other ailments. For two reasons we do not agree with this contention.

First, the issue was not raised before the Commission and, under our well established procedural practice, it cannot be raised here.

Also, as we have heretofore pointed out, the Commission found appellee was totally disabled because of silicosis and we have sustained that finding.

Four. Finally, appellant contends “The Commission erred in holding that appellant had the burden of proving that appellee was not suffering from silicosis.” (Our emphasis.) Again, we cannot agree with this contention for two reasons.

One, we do not find in the record where the Commission placed any such burden on appellant. Two, as is made clear from what we have heretofore said, the finding of the-Commission is supported by substantial evidence.

Affirmed.