text:
    E. H. OTTS v. CERTAIN LANDS et al
    5-5632
    472 S.W. 2d 104
    Opinion delivered November 1, 1971

      James C. Cole, for appellant.

      Lawson E. Glover and David M. Glover, for appellee.
   Lyle Brown, Justice.

Appellant E. H. Otts brought suit to confirm title to three tracts of land in Hot Spring County. One tract was seventy-five acres in section nineteen, and another was forty acres in section twenty. The third tract was five acres in the northeast corner adjoining the seventy-five acres, which small tract was purchased from the State. Title to the five acres was by the chancellor vested in appellant and is not in issue on appeal. As to the other two tracts the court denied the plea of title by adverse possession, estoppel and laches, and held that title was vested in appellant and his nephew, the appellee Hawley, as tenants in common. Appellant here contends that the findings of the chancellor were against the preponderance of the evidence.

E. K. Otts died in 1921 and was the record owner of the two tracts with which we are concerned. He was survived by one son, the appellant, and by one daughter, Abbie Otts Hawley. The daughter died in 1965, leaving as her sole heir appellee, Archie Hawley; Jr. Mrs. Hawley moved to Texas shortly before the death of her father and continued to live there the remainder of her life. Appellee has lived in Texas all his life. Appellant went into possession of the two tracts upon the death of his father. He has exercised exclusive control, paying taxes, cutting timber, selling gravel, keeping out trespassers, fencing that part which was not fenced, and entering the lands in a federal farm program of some type.

In addition to the activities incident to possession appellant testified that he at all times claimed to own the lands. He pointed specifically to an experience with the State Highway Department in 1962 wherein he asserted ownership and insists that his claim was brought home to his sister. Interstate 30 cuts diagonally across the center of one of the forties in section nineteen and touches upon the edge of the forty acres in section twenty. The highway department presented an option to purchase to appellant and he signed it. The option was then sent to Mrs. Hawley and she executed it. There was a “payee designation” attached to the option and the department filled in the blanks to provide that the settlement funds would be divided one-half to each of the owners. Appellant refused to sign the payee designation because he said he considered the property his exclusively. Consequently the highway department filed eminent domain proceedings. In that action Mrs. Hawley filed an answer and averred that she owned a one-half interest in the thirty-five acre tract in section nineteen which was cut in halves by the new highway. She did not assert any interest in that forty acres in section twenty where the highway cut across the extreme northeast corner. The condemnation proceeding was filed July 25, 1962. Appellant filed the instant litigation April BO, 1970. Appellant insists that the wording of the option to purchase revealed to Mrs. Hawley that he was claiming both forty acre tracts; that she was advised that appellant would not agree to sharing the compensation with her; and that when she did make an assertion by way of answer she laid no claim to one of the forties touched by the highway.

Appellant insisted that his sister had been very indifferent about the property; that she never did come out to the place since the father died to discuss taxes; that she never talked to appellant about the property; and that she in fact did not attend her father’s funeral. He conceded that she had been out to his house “a time or two” but that he did not see her.

On cross-examination appellant admitted that he had never told his sister, either orally or in writing, that he claimed the land as against her. It was clear that there was some degree of animosity on his part toward his sister. He said she came by once to see him and that “I told her to get on up the road.” When the option to purchase was first presented appellant it was filled out to show that he had no sisters or brothers but appellant denied furnishing that information to the interviewer. Appellant has a first cousin and two second cousins living in the same neighborhood and he could not recall ever having told either of them that he was claiming the land exclusive of his sister.

Appellant introduced into the record an order of the circuit court entered in the eminent domain proceeding. It recited that appellant’s ownership of the forty in section twenty which was traversed by the highway in the northwest corner of the forty was not questioned in the litigation. Consequently the clerk of the court was authorized to pay the deposit, $1,600, to appellant. With respect to the other thirty-five acres across which the highway ran, it was recited that there was a controversy between appellant and his sister about the ownership and the funds should be held in escrow.

E. F. Burns testified that for many years he was community committeeman for the farm program in the area of this land; that appellant farmed a portion of the land; that the witness lived in the community at that time; that he never had occasion to check the land title; and that he always took the application from appellant for participation in the farm project.

Appellee Archie Hawley testified in his own behalf. Summarizing, his mother died in 1965. In 1939 he came to Arkansas with his mother and they proceeded to appellant’s home. Appellant ran back into the dark part of a barn and would not come out and talk to him. Appellant would have nothing to do with him or witness’s mother so they left after visiting the aunts who lived with appellant. On another visit witness and his mother checked the taxes and found they were paid. He could tell the timber had been cut but his mother remarked that “Uncle Earnest (appellant) was taking care of the property over there and if he got anything over the taxes that was his good — ”

One of the exhibits introduced on behalf of appellee was a letter from appellant addressed to appellee’s mother. It was dated in 1922 or 1924. Appellant was answering a letter he had received from his sister. Apparently she had suggested that he buy her interest. He said he would like to have it but he could not raise a thousand dollars. He suggested that she come to Arkansas and they would make some arrangement to divide the property. As we interpret his letter he was saying he could not raise $1,000 for her one-half share in the 115 acres.

Harry Otts testified for appellee. He is a first cousin to appellant and they live in the same neighborhood. With regard to the property in litigation he testified that he never heard appellant nor his sister relate anything about the ownership of the land. He testified that appellant removed an old house from the lands and cut the timber.

George F. Otts, another cousin of appellant, was called by appellee. He testified that about fifteen years ago he mentioned to appellant that he would like to buy the land and appellant replied that he could not sell it.

Witness June Hawley is the wife of appellee. She went to an attorney’s office with appellee’s mother in 1962 to execute the option to purchase agreement. She recalled the mother’s receipt of notice from the highway department that appellant would not agree to a division of the compensation for the taking of the property. On cross-examination she conceded that the mother had knowledge, from information received from the highway department, that appellant would not agree that his sister had any interest in the right-of-way claim.

The activities of appellant — payment of taxes, cutting of timber, fencing, etc. — were consistent with co-tenancy and did not constitute notice to appellee or his mother that appellant was claiming by adverse possession. Phillips v. Carter, 222 Ark. 724, 263 S. W. 2d 80 (1953). It was incumbent on appellant to show, by acts other than those described, that he brought to the attention of his cotenant his hostile claim by acts either direct or so unequivocal and notorious that notice has to be presumed. Ueltzen v. Roe, 242 Ark. 17, 411 S. W. 2d 894 (1967). Stronger evidence is required where there is a family relationship than in cases where no such relation exists. McGuire v. Wallis, 231 Ark. 506, 330 S. W. 2d 714 (1960).

It is our conclusion that in 1962 appellant’made it known to his sister that he was claiming two forty acre tracts adversely to her. We refer to the incidents surrounding the highway condemnation. Appellant executed the option to purchase in which he claimed to be the owner of two of the quarter sections. He agreed that he would furnish the highway department good title. That instrument was mailed to appellee’s mother and she took it to her lawyer in San Antonio, Texas.

Upon receipt of notice of the claim of ownership by appellant it became incumbent upon his sister (appellee’s mother) to take action if she desired to interrupt the seven year statute of limitations. The general rule is stated in 2 C. J. S. Adverse Possession, § 141:

In order to stop the running of the statute there must be a physical interruption of adverse possession, or a suit, or some unequivocal act of ownership which interrupts the exercise of the right claimed and being enjoyed by the adverse claimant.

Some of the cases supporting the recited rule are Daniels v. Jordan, 134 So. 903 (Miss. 1931); Batson v. Smith, 51 So. 2d 749 (Miss. 1951); Petty v. Petty, 95 S. W. 2d 1122 (Ky. 1936); and Grubbs v. Rick, 212 S. W. 2d 489 (Texas 1948).

Appellee is an owner, as tenant in common, of the thirty-five acre tract bisected by the new highway. The answer filed in her behalf interrupted the enjoyment by appellant of his claimed rights in that it prevented him from drawing down funds to which he would be entitled if his claim to exclusive ownership had not been so challenged. Those funds are still in the registry of the court. The first action taken by appellant to get the funds released was the filing of this suit. With respect to the forty acre tract out of which was carved a small portion in the northwest corner, appellee’s mother did not see fit, in her answer, to mak« any claim to that acreage, notwithstanding it was described in the option to purchase. Consequently the seven year statute has since run and title has therefore vested in appellant. See Parham v. Dedman, 66 Ark. 26, 48 S. W. 673 (1898). The third forty acre tract, which the highway does not touch, is held by appellant and appellee as tenants in common. That is because appellant never unequivocally asserted to appellee or his mother a claim of exclusive ownership to that tract.

Affirmed in part, reversed in part.


source: Caselaw Access Project

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

license: Public Domain

text:
    Marshall L. CHERRY, Superintendent v. Larry Ray HALL
    5639
    472 S.W. 2d 225
    Opinion delivered November 1, 1971

      Ray Thornton, Attorney General; Garner L. Taylor, Jr., Asst. Atty. Gen., for appellant.

      Herrod & Cole, for appellee.
   John A. Fogleman, Justice.

This appeal constitutes our original confrontation with the problems presented by Tate v. Short, 401 U. S. 395, 91 S. Ct. 668, 28 L. Ed. 2d 130 (1971), wherein it was held that a state statute may not be constitutionally applied to justify immediate imprisonment of an indigent who cannot forthwith pay a legally imposed judgment for fine and costs. The statute involved was similar in effect to Ark. Stat. Ann. § 43-2314.1 (Supp. 1969).

Appellee Hall was convicted March 29, 1971, in the Circuit Court of Pulaski County of the misdemeanor, possession of stolen property, after trial de novo on appeal from the Municipal Court of North Little Rock. The jury fixed his punishment at a fine of $250. Appellee requested that he be granted time to pay the fine. His request was accompanied by his counsel’s statement that, even though he thought that appellee could offer proof of indigency, this would be unnecessary, because Hall’s family could raise the money if given a few days. In spite of this statement and a deputy prosecuting attorney’s recognition of the existence of a problem if Hall was indeed indigent, the court rejected appellee’s request, rendered judgment for the fine and directed his commitment to prison unless he paid the fine immediately.

The commitment was issued on the date of the jury verdict. It required imprisonment of Hall until his fine and the costs of prosecution were paid or otherwise discharged by due course of law. This action, of course, was pursuant to Ark. Stat. Ann. § 43-2314.1. On April 12, 1971, appellee filed his petition for a writ of habeas corpus to the Superintendent of the Pulaski County Penal Farm, seeking discharge from custody on the ground that his incarceration based solely upon his inability to pay the fine and costs was a violation of his “equal protection” rights under Amendment 14 of the United States Constitution.

At the hearing on Hall’s petition, he testified that he did not have the money or any other means to pay his fine, had no money at all, did not own any property, and had no job. He stated that he was 21 years of age, married and had a stepson, and that, while his father worked, his wife and mother were unemployed. Even so, he said that he might have been able to pay the fine over a period of time, which he had thought he would be given. From this uncontradicted testimony, the circuit court found that Hall’s imprisonment resulted solely from his indigency and ordered his release from the county farm, saying that because Arkansas had no specific statute establishing a procedure for paying fines in installments, the court had no choice in the matter.

The state, on appeal under Ark. Stat. Ann. § 43-2720 (Repl. 1964), contends that the trial court erred in failing to require the defendant to pay his fine in installments over a period of time. We agree with the state’s argument that, even though the release of appellant from his imprisonment on the county farm was required, appellee is not relieved of liability for the fine and costs, and that there were alternatives to his outright and unconditional release.

In Tate, the United States Supreme Court held that the United States Constitution prohibits a state from imposing a fine as a sentence and then automatically converting it into a jail term solely because the defendant is indigent and cannot forthwith pay the fine in full. But the court still recognized that there are alternatives to which a state “may constitutionally resort to serve its concededly valid interest in enforcing payment of fines.” The court reiterated statements from an earlier case, that a state was free to choose from a variety of proposed solutions to the problem and to devise new ones, but did not, in any respect, limit the states to procedures subsequently adopted. Although we are not aware of any legislation adopted in the wake of Tate, existing law provides our courts with machinery to enforce the collection of fines. Thus, we find that the circuit judge erred in holding that there was no alternative to unconditional release of Hall.

The imposition of the fine actually constituted a judgment against Hall. Hudmon v. Coonfield, 239 Ark. 1063, 396 S. W. 2d 296. The judgment became a lien on the property of Hall, owned or acquired at any time after his arrest, in whosever possession it might be found. Ark. Stat. Ann. § 43-2403 (Repl. 1964); Lawson v. Johnson and Ashley, 5 Ark. 168; Western Tie and Timber Company v. Campbell, 113 Ark. 570, 169 S. W. 253, Ann. Cas. 1916C 943; New Amsterdam Casualty Co. v. O’Dell, 193 Ark. 246, 98 S. W. 2d 953. The clerk of the court is charged with the duty of issuing executions on all judgments for fines and costs. Ark. Stat. Ann. § 43-2404; Hall v. Doyle, 35 Ark. 445; Hudmon v. Coonfield, supra. The county sheriff has the duty of collection of all fines and penalties adjudged in the circuit court. Ark. Stat. Ann. § 43-2503, 2504 (Repl. 1964). In the performance of this duty, in misdemeanor cases, the sheriff may accept a note or bond, with adequate security or sureties for the payment of a fine and attendant costs. Ark. Stat. Ann. § 43-2317 (Repl. 1964). This authority, in itself, might be utilized to provide an installment payment system for those whose payments are secured by solvent surety. Action by the above named officials and by the county judge is authorized without any specific direction by the circuit court. Yet, there are procedures open to the court which may be more effective in cases of chronic indigency.

Arkansas Statutes Annotated § 43-2314.1 itself provides that it shall not be construed “to limit or restrict the authority of any court to suspend any sentence upon such conditions as the court may impose.” Any court of record may postpone pronouncement of final sentence and judgment upon such conditions as it shall deem proper and reasonable as to probation and payment of costs in the form of a suspended sentence. Ark. Stat. Ann. § 43-2324 (Repl. 1964). This' authority applies where the punishment is by imposition of a fine. Ark. Stat. Ann. § 43-2326 (Repl. 1964). Circuit courts, under proper circumstances, are specifically authorized by statute to make the payment of a fine in one or several sums a condition of probation when imposition or execution of sentence is suspended. Ark. Stat. Ann. § 43-2331 (Supp. 1969).

The above outline of procedures available to circuit courts may not be exhaustive, but it is certainly indicative that the court has alternatives to the unconditional release of Hall on his petition. It may well be that further procedures to insure collection of fines should be provided by statute or by the exercise of the inherent procedural rule-making powers of the courts. In New Jersey, the Supreme Court prescribed a course of procedure for installment payments based upon statutes little more specific in that regard than our own. State v. DeBonis, 58 N. J. 182, 276 A. 2d 137 (1971).

This court clearly has the jurisdiction to review, revise and correct the action of a trial court or judge on a petition for habeas corpus. State v. Williams, 97 Ark. 243, 133 S. W. 1017. The judgment of conviction against Hall is still enforceable. See Freeman v. City of Benton, 191 Ark. 1131, 89 S. W. 2d 738.

There is nothing in Tate which precludes a court from conditioning its order of release upon some reasonable alternative method for the satisfaction of the finé. Faught v. Commonwealth, 467 S. W. 2d 322 (Ky. Ct. App. 1971). The fact that Hall was entitled to release from the county farm, under present circumstances, on his application for habeas corpus, does not mean that he was to be completely freed of the consequences of the punishment imposed or that the right of the state to resort to procedures not constitutionally inhibited was in any way impaired. Bailey v. Henslee, 287 F. 2d 936 (8th Cir. 1961), cert. denied, 361 U. S. 945, 80 S. Ct. 408, 4 L. Ed. 2d 364 (1960); 368 U. S. 877, 82 S. Ct. 121, 7 L. Ed. 2d 78 (1961); In re Christian, 82 F. 199 (Cir. Ct. W. D. Ark. 1897). See also, State v. Neel, 48 Ark. 283, 3 S. W. 631; Horton v. Bomar, 335 F. 2d 583 (6th Cir. 1964); Application of Billie, 103 Ariz. 16, 436 P. 2d 130 (1968); In re Turrieta, 54 Cal. 2d 816, 356 P. 2d 681 (I960); In re Toney, 114 Ohio App. 397, 183 N. E. 2d 141 (1961); Foran v. Maxwell, 173 Ohio St. 561, 184 N. E. 2d 398 (1962); People v. Follette, 32 A. D. 2d 389, 302 N. Y. S. 2d 624 (1969); Shipley v. State, 235 Md. 408, 201 A. 2d 773 (1964); In re Garofone, 80 N. J. Super. 259, 193 A. 2d 398 (1963); Van Etten v. Cochran, 120 So. 2d 587 (Fla. 1960); Lawton v. Hand, 183 Kan. 694, 331 P. 2d 886 (1958).

The judgment of the circuit court is reversed and the cause remanded for further proceedings consistent with this opinion.

Byrd, J., concurs.

Conley Byrd, Justice,

concurring. I concur in the result reached only because Tate v. Short, 401 U. S. 395 (1971), (to me, erroneously), classifies as revenue producers for the State all fines including those assessed by a jury as an alternative penalty. However, it should be pointed out that the granting of this writ does not give petitioner complete amnesty for he cannot consistently avoid imprisonment for the payment of a fine by persistent impecuniousness. Otherwise we would have an inverse discrimination where the penalty of a fine would be chargeable against only those who work.

      No question is raised about the propriety of resort to habeas corpus to assert matters which might have been considered on appeal, even though Hall waived his right of appeal. For this reason, we do not consider that question but address ourselves only to the single point argued on behalf of appellant.

      Municipal court judges have the same power in this regard as circuit judges. Ark. Stat. Ann. § 22-754 (Repl. 1962).

      As to procedural rule-making powers: see Hixon v. Weaver, 9 Ark. 133; Christy v. Speer, 210 Ark. 756, 197 S. W. 2d 466; Widmer v. State, 243 Ark. 952, 422 S. W. 2d 881; Act 470 of 1971.


author: J. Fred Jones, Justice.

text:
    PACE CORPORATION, Kemper Insurance Company Insurance Carrier v. Joyce BURNS
    5-5633
    472 S.W. 2d 78
    Opinion delivered November 1, 1971

      Gaughan, Laney, Barnes, Roberts ir Harrell, for appellants.

      Woodward ir Kinard, for appellee.
   J. Fred Jones, Justice.

This is a workmen’s compensation case in which the appellee, Joyce Burns, claimed compensation benefits because of an injury to two discs in her cervical spine which occurred when some boxes fell on her while in the course of her employment by the appellant, Pace Corporation, during the first part of March, 1969. Compensation was awarded by the Commission and the award was affirmed on appeal to the Ouachita County Circuit Court. On appeal to this court Pace Corporation and its compensation insurance carrier rely on the following point for reversal:

“There is not substantial evidence in the record to support the workmen’s compensation Commission’s finding that the claimant’s disability was caused by an on-the-job accident.”

Mrs. Bums testified that she is 37 years of age and started working for the Pace Corporation in August, 1968. She testified that sometime during the first two weeks in March, 1969, she was engaged in her regular duties of sitting at a powder machine and “putting powder in cases.” She testified that after filling the cases she would put them in wooden boxes which weighed three or four pounds each and would then start the boxes, containing the cases, along a conveyor belt which moved along an assembly line. She says that the empty boxes she was using were stacked behind where she sat at the powder machine; that on the day of her injury the boxes were piled high behind her and that as she reached to get one of the cases to put powder in, the pile of boxes fell on her. She says that a knot was raised on the back of her head where it was struck by one of the boxes, and that she had a terrific headache immediately following the boxes falling on her. She says that she went to the office and the office secretary, Mrs. Crawford, gave her two white tablets, which could have been aspirin. She says she does not recall having received any medication prior to the incident, but that she received aspirin from Mrs. Crawford for headache quite often following the injury and that she suffered headaches up until the time of her surgery. She testified that after obtaining aspirin for her headache on the day of her accident, she returned to work and worked until around the 9 th of April when she experienced severe pain in her arm and went to a doctor. She then testified as follows:

“Q. What doctor did you go to?
A. Doctor Hout.
Q. What complaint, if any, did you make to him with regard to your head?
A. Well, now I didn’t make any statement to him because I didn’t think it was my head. When I went to him for this it was my arm, it was bothering me in my arm. I couldn’t raise my arm and I’d just holler everytime I’d get up.
Q. How long had this been going on?
A. Well, it started about the 9th of April or the 10th of April, somewhere thereabout.
# * #
Q. And you worked then until April the 9th?
A. That’s right.
Q. Why did you terminate on April the 9th?
A. I got up out of bed and I walked just about a foot from the bed and I couldn’t move my arm. It was hurting me and I got to hollering and my husband asked me what was wrong and I told him something had gone wrong with my arm because I had this terrible pain and a headache.
Q. What did you do after that?
A. Well, he took me to Doctor Hout.
Q. Did Doctor Hout treat you?
A. Doctor Hout gave me a shot and told me it was bursitis and gave me a shot and sent me home.
Q. What type of examination did Doctor Hout perform?
A. Well, he just looked around and felt around, to the best of my knowledge, of my arm.
Q. What statements, if any, did you make to Doctor Hout with regard to the boxes?
A. I did not, I could not remember. I did not remember at that time about them. I never thought that would be caused from anything.”

Mrs. Burns testified that she was seen by Dr. Hout four times and that each time he gave her a shot for bursitis. She stated that the shots gave her no relief from the pain in her arm so she then went to Dr. Meek. She says that Dr. Meek put her in the hospital for a week for bursitis; that her condition continued to get worse rather than better; that Dr. Meek advised her that something was wrong other than bursitis and recommended that she go to the Warner Brown Hospital in El Dorado for an examination by Dr. Hartmann. She says that a myelogram was performed by Dr. Hartmann, whereupon he advised her that some “discs were out of place” and that surgery would have to be performed. She testified that Dr. Hartmann then performed an operation on her neck for the removal of discs, and that following the surgery Dr. Hartmann fitted her with a cervical collar with instructions to wear it as long as she had muscle spasm. She says she is still under Dr. Hartmann’s care and was seen by him on the Monday prior to the hearing. She testified that prior to her injury she was in pretty good shape physically; that she had no headaches and had never had a previous injury. Mrs. Burns then testified as follows:

“Q. Now, do you recall if you ever discussed this box falling incident with any physician?
A. The only one I discussed it with when I really remembered and thought about it was Doctor Hartmann.
Q. When was that? Do you recall?
A. No, sir, I’m sorry I don’t.
Q. How did you recall that at that time, do you remember?
A. I just remembered out of the clear blue sky. I just thought about it. They were asking me about car wrecks, if I ever had been in a car wreck or anything and I just happened to think. He said any accident and that made me think of the boxes falling on me.
Q. Had you discussed this with Doctor Hout?
A. No, sir, I had' not.
Q. Had you discussed this with Doctor Meek?

A. No, sir, I had not because I did not remember it then.”

Mrs. Burns testified that other than the headaches, all of her symptoms came on suddenly when she got up from bed on the morning of April 9th or April 10th and experienced severe pain in her arm. She testified that she does not remember whether she gave Dr. Hout any history or not. She says she has taken so much medicine that she has been unable to remember very much. As to Dr. Meek, she testified as follows:

“A. I remember talking to Doctor Meek and I remember Doctor Meek asking me if there was an accident at that time but I could not remember because I was having one shot right after another one and I just can’t remember things when I’m like that.
Q. Do I understand then that you do remember Doctor Meek asking you about an accident and you told him no or that you didn’t remember having one because you didn’t. . .
A. I told him not as I knew of. I didn’t know.
Q. But again you do remember him questioning you?
A. I do after I got off the medicine. I can remember the report but I couldn’t as long as I was having those shots every so many hours.
Q. I don’t quite understand. Did you actually, prior to talking to Doctor Meek had it occurred to you in your own mind that the box falling accident might have been responsible for this?
A. No, sir, because I could not remember it. He kept asking me if I had been in a car wreck but I could not remember anything.
Q. When did you, in your own mind, first feel. like that the boxes falling might have had something to do with the condition that you had?
A. After I had had surgery and didn’t have those shots but I had just taken shots and shots, About every four hours I had to have a shot for pain. I was in that much pain,
Q. In what manner did you first make the connection between the falling of boxes and having had this operation? Were you trying to think of what possibly could have caused it?
A. Doctor Hartmann asked me if I had been in a car wreck or in any kind of accident and that’s when I thought about the boxes falling.
Q. Was this after you were released from the hospital and when you went back to see him in his office?
A. I really don’t know. I can’t remember.”

Mrs. Burns’ testimony about the boxes falling and one striking her on the back of her head is sustained by the testimony of Leslie Clawson, Rachel Offutt, and other fellow employees who remembered the incident of the boxes falling.

George Edward Rhodes testified that he was .employed where Mrs. Burns worked in March, 1969. He says that he was walking through the plant and passed Mrs. Bums’ station and that she was sitting and rubbing her head. He testified that she looked like she felt bad and that upon inquiry she told him that some boxes had fallen on her head striking her on the back of the head. He testified that he lived in the same apartment building with Mr. and Mrs. Burns and that Mrs. Burns complained considerably about having headaches after the boxes fell on her. He stated that the most of the complaints he heard from her were while they were at home and where they drink coffee together at work.

Ethlyn Crawford testified that she was secretary in the office of the plant manager during March, 1969, and that it was customary procedure for injuries among employees to be reported to her; that she kept aspirin in her office available to anyone who wanted them, but that all complaints of injury or other complaints of illness were referred to the company nurse. She testified that the first she knew of Mrs. Burns’ injury was when she was interviewed in connection with the compensation claim. She says that the only accident or illness that she recalls being reported to her by Mrs. Burns was one time when she had the flu and one time when she had an injury to her hand while working the “flaring machine.” She testified that she reported all accidents to “entry and credit” and that she so reported the hand accident. She testified that Mrs. Burns obtained aspirin tablets quite often in her office when complaining of sinus headaches. She testified that from the time Mrs. Burns was first employed at the plant she came in periodically for aspirin for headaches and that she does not recall her ever coming in for aspirin when she had a knot on her head.

Richie Burns, the husband of Joyce Burns, testified that Mrs. Burns met him at the Arkansas Cafe about four o’clock in the afternoon (he does not recall the date) and he observed a knot on the back of her head. He testified that she complained of headaches and continued to take aspirin until she went to the doctor sometime in April when her arm got to bothering her. He testified that with the exception of the flu, Mrs. Burns seemed to be in good health prior to the accident. On cross-examination he testified that to the best of his memory the lump on the back of Mrs. Burns’ head and her complaint with headaches were somewhere about the first week in March. He testified that they both worked during the daytime and most of her complaints to him were at night.

No medical testimony was taken in this case and the medical evidence consists of hospital records and unverified medical reports submitted in evidence by stipulation. Record sheets from the Ouachita Hospital were introduced into evidence. The admission sheet is illegible but the summary sheet showed admission date as April 14, 1969, to April 20, 1969, with attending physician, Dr. T. J. Meek.

The pertinent information shown on the personal history sheet dated April 15, 1969, is as follows:

“Chief Complaint: Extreme pain in right shoulder, also right subscapula area.
Working Diagnosis: Acute bursitis, right shoulder.
Present Illness: The patient has had several major operations several years ago. Recently, she has been working in one of the plants across the river. She developed extreme pain in the right shoulder one week ago. She has been treated for a week by another physician in his office with injections, medications. She states the pain has not improved at all, in fact she says it has become worse. The pain is over the doltoid area and also over the subscapula area. It is exaggerated by any movement of the shoulder. She seems to be worse today. She is admitted to the hospital for treatment.”
The discharge summary on this report is as follows:
“The patient admitted 4-14-69 complaining of extreme pain in the right shoulder. She was believed to have bursitis although x-ray was normal. She has been treated by another doctor for approximately a week. She has not improved at all. During her hospital stay here she was treated with steroids injected into the shoulder. Also Indocin, Sterazolidin, sedation, Ultrasonic. In spite of all this treatment she stated the pain was not improved at all. By 4-20-69 there was still marked limitation of motion and tenderness. She may possibly have some involvement of the nerve being impended upon from the cervical spine. She is discharged today and referred to the care of Dr. Earnest Hartmann in El Dorado.”

The summary sheet dated April 20, 1969, prepared by Dr. Hartmann, contains the following pertinent information:

"Chief Complaint: Right shoulder.
Duration: Ten days.
Present Illness: The patient had onset of right shoulder and arm pain some ten days ago. The patient was treated with injections into the shoulder without any improvement in symptoms. Subsequently, the patient’s pain has radiated into the neck and down the arm to the radial aspect of the forearm. Symptoms are aggravated by use of the arm, and to some extent by head and neck motions, no headache. It is not affected by coughing. There have been no previous episodes.
Past Medical History: The patient has had no broken bones. She has had an appendectomy, a hernia repair, and a vein ligation without any anesthetic complication. There has been no serious illness. The patient is allergic to Empirin and Codeine.
Systemic Review: is not remarkable.
Family History: is noncontributory.
Examination: Shows a normal head and neck posture. Motion of the head on the neck is normal. There is tenderness over the right scalene muscle. The patient has good flexion and extension, lateral bending is symmetrical. The right pulse is obliterated with elevation of the wrist to shoulder level and turning the head and neck in the opposite direction. Reflexes, sensation, and motor functions of the upper extremities are normal. There is tenderness over the greater tuberosity and right humerus. There is normal motion of the shoulder. The patient is obviously distressed and nervous.
Diagnosis: Acute right scalene syndrome.
Treatment: The patient admitted for further evaluation and treatment.”

Dr. Ernest R. Hartmann, under date of May 13, 1969, reported to the compensation carrier as follows:

“The above named patient was re-examined by me on May 12, 1969.
We are enclosing the medical record on the above named patient. Since this patient was hospitalized, she failed to respond to conservative treatment and following the myelogram, which revealed a cervical disc, an anterior cervical spine fusion was done. The patient had good early improvement of her symptoms.
The patient on return for follow-up visit, records a history of injury while working for Pace Corporation. The injury was sustained somewhere between March 1 and March 15, 1969, when five or six boxes, weighing three or four pounds fell on her head. The weight fell about two feet before striking her head and back. The patient states following this injury she had headaches and had a knot on the back of her head for about three weeks. Two days after the accident her job was changed. At the time of the initial history, the patient states she did not recall the injury to her neck.
Examination shows the patient is considerably improved in ways of nervousness and distress. The wounds are well healed and the sutures were removed.
The patient is to continue her collar and return in three weeks.
Further reports will be sent as the patient is seen.”

Under date of June 4, 1969, Dr. Hartmann reported as follows:

“The above named patient was re-examined by me on June 2, 1969.
The patient’s neck is considerably improved.
X-rays of the cervical spine show the anterior spine fusion of C-5, C-6, and C-7, the pegs are nicely in place.
The patient may leave off her collar at night, but continue to wear it in the daytime. She is to return in three weeks for further evaluation.
Further reports will be sent as the patient is seen.”
On June 25, 1969, Dr. Hartmann reported as follows:
“The above named patient was re-examined by me on June 23, 1969.
The patient states she does all right as long as she has her brace on. She has some difficulty sleeping at. night. She feels this may be due to the brace. The patient has some catching in her hip at the donnor sight with going up steps.
X-rays show a reversal of the cervical curve. The bone pegs are in place, but cannot evaluate the bone texture at this time.
The patient’s neck was not examined today because of the time factor since surgery.
The patient is to continue use of the collar during the day and remove it for sleeping. The patient is to return in two to three weeks.
Further reports will be sent as the patient is seen.”

On August 19, 1969, Dr. Rushton, Mrs. Burns’ original family physician, reported to her attorney as follows:

"I examined the above today at which time she stated she was injured in March of this year while an employee of Pace Corporation Company of Camden, Arkansas. She stated that some boxes fell and hit her on the top of the head and on April 10 her right arm became numb. At that time she was treated by a doctor in Camden and wasn’t getting any better. She later was treated by Dr. Meek in Camden and hospitalized on April 14.
Treatment in the Camden hospital lasted approximately one week and she was removed to Warner Brown Hospital in El Dorado at which time she was placed under the care of Dr. Hartmann. He did surgery in the cervical area, removing two discs and at the same time did a fusion of the cervical vertebrae.
She came here complaining of blackout spells and she had two yesterday. I checked her over and found her in a weakened condition, suffering from malnutrition. She stated to me that she had lost her appetite following surgery and had not regained it. Upon further examination she was found to have difficulty in her balance and coordination, which could possibly be due to the accident which she sustained.
She wears a cervical collar at times and does not have free movement in the cervical area. I think it is a little too soon following this type of surgery to give an estimate as to her permanent total disability.”

There is substantial evidence in this case that Mrs. Bums received a rather severe blow to the back of her head when some boxes fell on her sometime in the first two weeks in March, 1969. There is substantial evidence that Mrs. Burns experienced'severe pain in her arm on the morning of April 9 or April 10, 1969, and that this pain was traced to two discs in her cervical spine. There is substantial evidence that it was necessary to surgically remove the offending discs and to fuse the cervical vertabrae in the area.

Mrs. Burns testified that she had constant and severe headaches from the date the box struck her head until the date of surgery, and that she had not experienced headaches prior to her injury. This testimony is refuted to some extent by Mrs. Crawford who testified that Mrs. Bums came to her office quite often for aspirin for sinus headaches. The substantial nature of Mrs. Burns’ testimony as to the unusual onset, duration and seveiity of her headaches is diminished by the apparent fact that she failed to mention it to any of the doctors who saw and treated her, and the record indicates that she herself failed to associate her headaches with the injury. She apparently had forgotten all about the boxes falling on her until she was quizzed by Dr. Hartmann about automobile or other accidents, and by her own admission this did not occur until after her surgery. On a follow-up examination report dated May 12, 1969, Dr. Hartmann states:

‘‘The patient on return for follow-up visit, records a history of injury while working for Pace Corporation. The injury was sustained somewhere between March 1 and March 15, 1969, when five or six boxes, weighing three or four pounds fell on her head. The weight fell about two feet before striking her head and back. The patient states following this injury she had headaches and had a knot on the back of her head for about three weeks. Two days after the accident her job was changed. At the time of the initial history, the patient states she did not recall the injury to her neck.” (Emphasis supplied).

Apparently Dr. Hartmann asked Mrs. Burns about headaches for under date of April 20, 1969, in setting out her complaints, he says “no headache.”

It is obvious from the record and from Mrs. Burns’ own testimony, that after she was questioned following her operation about any possible accident that could have injured her cervical spine, she simply related the known condition back to the last known accident that she felt could have accounted for the condition. Even though she testified that this period was bridged by headaches, there is no evidence in the record that headache is a symptom of cervical disc injury. The Commission, of course, has had considerable experience with ruptured disc cases and it is not difficult to associate ruptured cervical discs with trauma such as Mrs. Burns experienced, especially if followed by other known symptoms and an absence of any other known precipitating causes. In the case at bar, however, the necessary elements to a logical conclusion as to condition as well as causation are absent from the evidence of record in this case, and it is in such cases as this, where medical evidence becomes important in rounding out substantial evidence as to causation.

As already stated, ndne of the doctors who saw or treated Mrs. Burns testified by deposition or otherwise in this case. All of the medical evidence is in the form of hospital records and medical reports, and Dr. Hartmann, who performed the surgery, simply says in very general terms: “Since this patient was hospitalized, she failed to respond to conservative treatment and following the myelogram, which revealed■ a cervical disc, an anterior cervical spine fusion was done.” (Emphasis added). Dr. Hartmann does not describe the discs or the bone structure at the disc spaces. He does not say whether the discs were protruding, herniated or ruptured, and he gives no clue as to whether such lesions as he must have found, were caused by chronic disease or by old or recent traumatic injury. He doesn’t even say whether the discs were surgically removed. He does indicate that Mrs. Burns denied headaches, but he does not say whether headache is a symptom of such disc lesion he found.

Dr. Rushton does say that Dr. Hartmann removed two cervical discs and at the same time did a fusion of the cervical vertabrae. He also says that Mrs. Burns has been experiencing blackouts “which could possibly be due to the accident which she sustained,” but he sheds no light on whether the blackouts are related to the disc operation or whether the disc operation was related to the injury.

There is substantial evidence that the bursitis like pain suffered by Mrs. Burns on the morning of April 9th or 10th was related to the disc condition. But whatever the disc condition may have been, as found by Dr. Hartmann, the unanswered question still remains as to why Mrs. Burns did not suffer severe bursitis like pain in her arm as well, or instead of headache, immediately following the injury, if the disc condition was caused by the injury in early March. Perhaps medical testimony, especially from Dr. Hartmann who performed the surgery, could answer this question to the satisfaction of the substantial evidence rule, but without such answer the substantial evidence rule in many compensation cases could easily yield to the accident of choice.

We have not overlooked our prior decisions cited by both parties in this case. But questions of causation in compensation cases must be answered in the light of the facts peculiar to each case and the answer in one is of little aid to an answer in another. We have never attempted to lay down a rule for all cases as to when medical evidence is and is not necessary in establishing causal relation between an accidental injury and a disease or condition. As the record now stands in the case at bar, we are of the opinion that there is no substantial evidence connecting Mrs. Burns’ disc condition and surgery with the accident in which she was struck on the head by falling boxes. The record is clear that Mrs. Burns’ attorney followed the procedure which is prevalent among claimant attorneys to use medical reports in evidence by stipulation rather than the more expensive method of eliciting medical evidence from the witness stand or by deposition. There is no question that Mrs. Bums is severely disabled and we conclude that she should not be denied the opportunity of eliciting further medical evidence as to possible proof of causation in this case.

The judgment of the circuit court is reversed and this cause is remanded with directions to remand to the Workmen’s Compensation Commission for further proceedings not inconsistent with this opinion.

Reversed and remanded.

Fogleman, J., concurs in the reversal but dissents from the remand.

Byrd, J., dissents.


author: Conley Byrd, Justice.

text:
    PRISMO UNIVERSAL CORPORATION v. CITY OF LITTLE ROCK
    5-5626
    472 S.W. 2d 96
    Opinion delivered November 1, 1971

      Pope, Pratt, Shamburger, Buffalo ir Ross, for appellant.

      Joseph C. Kemp, City Attorney; Robert L. Lowery, Asst. City Atty., for appellee.
   Conley Byrd, Justice.

This action was instituted by appellant Prismo Universal Corporation to recover $6,928.52 for paint delivered to the City of Little Rock and used on its streets. The City admitted the receipt and use of the paint but denied that the goods were received and used on an open account. By way of affirmative defense the City alleged that the goods were used pursuant to the authority, terms and conditions of a telegram and letter date June 24, 1966. The trial court, sitting as a jury, found the issues in favor of the City. For reversal appellant contends that the court erred in finding as a matter of fact that the City was unsuccessful in its defense of Chancery Action No. 132996 and in concluding as a matter of law that appellant waived its right to payment.

Chancery Action No. 132996 was by Pulaski Glass & Mirror Company and Cliff G. Kress against the City of Little Rock to void a resolution accepting appellant’s bid of $12,740 for 2,000 gallons of white and yellow street marking paint on the ground that the specifications were arbitrary and limited the bidding to appellant by the following requirement:

“The successful bidder shall be required to submit satisfactory listing of at least five users of 5,000 gallons or more with a previous successful application for not less than three (3) years prior to submission of bid. . .”

The prayer of the complaint was as follows:

“WHEREFORE, plaintiffs pray that they be granted a declaratory judgment holding the resolution of the Little Rock Board of Directors which accepted the bid of Prismo Safety Corporation to be void; for a declaratory judgment holding that the provision of the specifications attached hereto requiring any successful bidder to list five users of 5,000 gallons or more with a previous successful application for not less than three years prior to submission of the bid to be illegal, against public policy, and void; for an injunction against the purchase of the Prismo paint and from the issuance of funds of the City of Little Rock in payment for said paint; for a mandatory injunction requiring the City of Little Rock to accept the bid of Pulaski Glass & Mirror Company; for a temporary injunction against the purchase of the Prismo paint during the pendency of this cause; for costs and all other proper relief.”

That complaint was filed on May 4, 1966, and on May 16, 1966, the City repealed or rescinded the resolution accepting appellant’s bid but on the same date enacted ordinance No. 11741 waiving competitive bidding and authorizing the purchase from appellant of street marking compound not exceeding $13,122.20. The City’s order No. 8407 was placed the next day. Following issuance of the order Pulaski Glass 8c Mirror Company amended its complaint to place in issue the validity of ordinance No. 11741. The prayer of the amended complaint is as follows:

“WHEREFORE, plaintiffs pray that they be granted a declaratory judgment holding Resolution 3575 and Ordinance 11741 to be void; for an injunction against the purchase of the Prismo paint and prohibiting the issuance of funds of the City of Little Rock in payment for said paint; for a mandatory injunction requiring the City of Little Rock to accept the low bid of Pulaski Glass 8c Mirror Company; for a temporary injunction against the purchase of the Prismo paint during the pendency of this cause; for costs and all other proper relief.”

After some of the paint, pursuant to order 8407, had been shipped but before it was used, appellant’s salesman John Pinkley, initiated a telephone call to Mr. D. A. Reese, Jr., appellant’s vice president of sales and marketing. This call was placed from the office of Henry DeNoble, then in charge of traffic and community development for the City. Mr. Kemp, the City attorney, was introduced to Reese over the phone and as a result of the conversation with Kemp, appellant sent the following telegram and letter:

“MR ANCIL M DOUTHIT CITY MANAGER
CITY CITY OF LITTLE ROCK LITTLE ROCK ARKANSAS
REFERENCE CITY OF LITTLE ROCK ORDER 8407 DATED MAY 17 1966
ALL MATERIALS COVERED THEREUNDER HAVE BEEN SHIPPED AND PRISMO SAFETY CORPORATION WAIVES ANY RIGHT TO PAYMENT FOR THESE MATERIALS PENDING THE SUCCESSFUL DEFENSE OF LAW SUIT AGAINST THE CITY OF LITTLE ROCK BY PULASKI GLASS AND MIRROR COMPANY AND CLIFF KRESS. PRISMO SAFETY CORPORATION WAIVES RIGHT OF PAYMENT IF THE CITY OF LITTLE ROCK IS NOT SUCCESSFUL IN ITS DEFENSE OF THIS SUIT AND IN THE INTEREST OF PUBLIC SAFETY PRISMO SAFETY CORPORATION RECOGNIZES THAT THE MARKING PROGRAM CANNOT BE CURTAILED BECAUSE OF ANY DELAY IN APPLYING THE NECESSARY MARKINGS. THEREFORE PRISMO SAFETY CORPORATION ACCEPTS POSSIBLE LOSS OF REIMBURSEMENT FOR THESE MATERIALS SHOULD THE CITY OF LITTLE ROCK NOT BE SUCCESSFUL IN DEFENDING THIS SUIT. PRISMO SAFETY CORPORATION DOES AUTHORIZE THE CITY OF LITTLE ROCK TO USE AND APPLY THE MATERIALS SHIPPED AGAINST ORDER NO 8407
D. A. REESE JR VICE PRESIDENT”
“June 24, 1966
“Mr. Ancil M. Douthit
City Manager
City Hall
Little Rock, Arkansas
“Reference: Purchase Order 8407, dated May 17, 1966
“Dear Mr. Douthit:
“This letter is to confirm our telegram of Friday, June 24, 1966, wherein Prismo Safety Corporation authorizes the t City of Little Rock to use the materials shipped by this corporation against Purchase Order 8407, with full knowledge that payment for these materials is dependent upon successful defense of the suit now pending against the City of Little Rock, instituted by Pulaski Glass and Mirror Company and Cliff Kress.
“In the interest of public safety and the continuation of the marking program of the streets of Little Rock, Arkansas, Prismo Safety Corporation recognizes that the marking program cannot be curtailed because of any delay in the application of the necessary markings due to any pending suits concerning the award to this corporation. Should the City of Little Rock not be successful in defense of this suit, then Prismo Safety Corporation recognizes that it could not be paid for these materials, and it would constitute a financial loss in the amount shown on the purchase order.
Very truly yours,
Prismo Safety Corporation
D. A. Reese, Jr.
Vice President”

August 31, 1966, the Chancellor in cause No. 132996 issued the following decree:

“After hearing all of the evidence and considering the arguments of counsel, it is ORDERED AND DECREED as follows:
“1. The Court finds that no exceptional situation existed on May 16, 1966, making it unfeasible to purchase fast setting reflective marking compounds by competitive bidding as required by § 19-716 ARK. STAT. ANN. and § 2-44 LITTLE ROCK CODE. Ordinance No. 11741 of the City of Little Rock dated May 16, 1966, is invalid as being unduly restrictive of competition. The City of Little Rock is. permanently enjoined from purchasing the 1,700 gallons of white and 300 gallons of yellow traffic marking compound from Prismo Safety Corporation pursuant to the terms of that Ordinance.
“2. The Court declines to issue a mandatory injunction requiring the City of Little Rock to purchase reflective marking compound from Pulaski Glass & Mirror Company.”

Mr. Kemp testified about the telephone conversation as follows:

“A. The City had attempted to purchase the marking compound identified in this complaint by waiving competitive bidding as reflected by the Ordinance. This was attacked in the Court by an interested competitor of Prismo, who alleged his compound met the specifications needed by the City. This lawsuit was instituted immediately after the Ordinance was adopted awarding the contract. I am unable to say whether it was prior to the date of the shipment, the first part of the shipment by Prismo or not, but it was all within a matter of a very few days one way or the other. This was, it was related to me, very critical to the City not to be able to have marking compound because of their program to mark and designate lanes for the traffic throughout the City, and they were anxious to have the suit disposed of as quickly as possible and/or use some compound that they had received. I advised them that it was not possible for them to use it inasmuch as the suit was pending, that we should await the outcome of the Chancery Court hearing. In our discussions, it developed that we had telephone conversations with the Vice President of Prismo Safety Corporation at their office wherever it is .back east, wherever it was, with a man named Reese. I explained to him the situation that the City was confronted with and told him under no condition would the City be able to use the compound except if Prismo understood and agreed, in writing, to us that if the City was unsuccessful in the litigation that was pending in Chancery Court questioning the propriety and legality of the purchase, then the City would not be expected, under any conditions, to pay for whatever, if any, of the marking compound they used. This conversation was understood by Mr. Reese and it was confirmed in writing to the City Manager, Mr. Ancil M. Douthit, at that time. It was confirmed first by telegram and subsequently the following day, as I recall it, by a letter, both over the signature of Mr. Reese.”

On re-direct Kemp stated that in the phone conversation Reese told him that appellant’s compound was whatever instrument Reese was willing to give and that the telegram and letter reflect the language he asked for.

On re-direct Kemp stated that in the phone conversation Reese told him that appellant’s compound was so peculiar that it would meet the qualification stated in the ordinance but after promising to furnish such evidence later declined because appellant did not wish to reveal its secret formula to the public.

Mr. Reese acknowledged that appellant had been doing business with the city for 25 years, that he received the phone call, that the city and Mr. DeNoble were anxious to get on with the street marking program and that he was filled in as to the details of the Pulaski Glass & Mirror Company suit. Reese stated that in the phone conversation Kemp led him to believe that the Pulaski Glass 8c Mirror suit was a nuisance, a bothersome thing, but would not seriously impede the street marking program. Kemp suggested that it would help in the defense of the suit if Reese would send a telegram and indicate that appellant would waive reimbursement for the materials. Reese considered this a rather unusual request. From the conversation Reese got the impression that there was not going to be any difficulty and the telegram and the confirming letter would be used to show good faith on the part of appellant with the City but that appellant would be paid for the materials. He also stated that Kemp assured him that if the suit were lost Kemp would see that there was some way that the material would be paid for. Reese emphasized that it was not suggested to him that he wás in any way donating materials to the city but that the impression he got was that he would be paid regardless of what happened.

John Pinkley corroborated Reese’s testimony that the main purpose of the telegram was use at the trial of the Pulaski Glass & Mirror suit to show appellant’s good faith. It was his understanding that appellant would be paid if the City had to issue purchase orders for less than $1,000 which it could do without taking bids.

The trial court entered special findings. The one of which appellant complains is that, “The City of Little Rock was unsuccessful in its defense of Chancery Court Case No. 132996 and [appellant] waived its right to payment under the circumstances.” As we view the record the trial court’s finding is supported by substantial evidence.

A waiver is an intentional abandonment or relinquishment of a known right. As we understand the record there is testimony by Kemp that he, as the City’s legal advisor, was of the opinion that appellant could not be paid for the material if the ordinance was voided and that this was explained to Reese. Furthermore, Reese was to furnish Kemp with proof that appellant’s compound was so peculiar that it would meet the qualification stated in the ordinance. As a result of the one phone conversation with Kemp, appellant forwarded the telegram and the letter before any of the material was used. Neither appellant’s witnesses nor its counsel have suggested how the telegram or the letter would assist in the Pulaski Glass & Mirror suit. If the trial court should believe Kemp, as it had a right to do, it follows that appellant waived its right to receive payment.

Appellant also makes the argument that since the City was not enjoined in the Chancery decree, supra, from making payment for materials already used, the City was not unsuccessful in defending the Pulaski Glass 8c Mirror suit. This is premised upon the theory that appellant never agreed not to pursue a quantum valebant theory unless the court enjoined the City from issuing funds to pay for paint used. This approach overlooks the fact that the waiver was made before the paint was used and that according to Kemp the paint would not have been used without the waiver set forth in the telegram and the letter. Furthermore, as we understand the record the City was not successful in its defense of the Pulaski Glass 8c Mirror Suit.

Affirmed.


text:
    Guy VEAZEY et ux v. Mrs. Adell STEWART
    5-5701
    472 S.W. 2d 102
    Opinion delivered November 1, 1971

      Allen, Young & Bogará, for appellants.

      Alonzo D. Camp, for appellee.
   Conley Byrd, Justice.

This is an action by appellee Mrs. Adell Stewart, a grandmother, against appellants Guy Veazey, stepfather and Jo Ella Veasey, mother, to obtain visitation privileges with Linda Kennedy, a minor daughter of appellee’s deceased son. The trial court granted such visitation rights and we reverse.

Jo Ella Kennedy Veazey was the wife of Jimmy Lee Kennedy, appellee’s son, until his death on November 23, 1968. To that marriage was born Linda Kennedy, now age 10. This action was instituted after Jo Ella’s marriage to appellant Guy Veazey on October 3, 1969. It is conceded that Jo Ella has been and is a good mother.

Appellee recognizes that under the general law there is no right of visitation enforceable by injunction in favor of a grandparent with respect to a grandchild when a natural parent having custody resists or objects. Yet she takes the position that, “Equity regards that as done which ought to be done”, and that the right of visitation should be accorded a good grandmother in an exceptional case. However in this case there is nothing that shows anything other than a normal grandchild-grandmother relationship in which the grandmother willingly did some Friday night baby sitting.

Appellee points out that the grandparents in Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561 (1952), were granted visitation privileges. The visitation privileges there grew out of a child custody action. Here it is admitted that this is not a child custody action.

Reversed and dismissed.


author: Frank Holt, Justice.

text:
    H. Robert REES et ux v. CRAIGHEAD INVESTMENT CO., Inc.
    5-5631
    472 S.W. 2d 92
    Opinion delivered November 1, 1971

      Ward ér Dupwe, for appellants.

      Douglas Bradley, for appellee.
   Frank Holt, Justice.

This action was instituted by Citizens Bank of Jonesboro and Craighead Investment Company, Inc. to cancel two real estate transfers relating to one piece of property on the allegation that the transactions were a fraud against them as creditors. The bank is no longer a party to this proceeding. In finding the issue in favor of the appellee, the chancellor found that a written agreement by Rees Plumbing Company, Inc. to sell a lake house to Weldon Douglas, and the subsequent assignment of that agreement by Douglas to appellant H. Robert Rees were fraudulent and designed to hinder and delay creditors and to place the property beyond the reach of present and future creditors. The transactions were cancelled and set aside and the property declared to be subject to appellee’s judgment lien.

For reversal appellants assert that the trial court erred in refusing appellants’ written motion to dismiss appellee’s complaint before and after presentation of its evidence and, further, that the findings of the chancellor are “contrary to the facts and the law applicable thereto.” We find no merit in these contentions.

Rees Plumbing Company, Inc. acquired title to the property in dispute in 1964. Harold R. Rees, the father of appellant H. Robert Rees, was the controlling stockholder of this Arkansas corporation. In March 1966 the company executed a written and unrecorded agreement with Weldon Douglas, a long-time employee of the company, by which the company agreed to sell a lake house to Douglas and also to keep up the $180.p0 monthly mortgage payments on this property and to deliver to him a deed whenever the approximate $18,000.00 balance was paid by the company. In exchange for this conveyance, Douglas conveyed to Harold R. Rees his 100 shares of stock (payment was secured by a $1,000 note which was cancelled) in a New Mexico corporation. This transfer made Harold R. Rees the controlling stockholder in the foreign corporation. In March 1966 and for several months prior and subsequent thereto the Arkansas company was heavily indebted to the bank and was unable to meet its obligations.

The next conveyance asserted to be fraudulent was executed on December 30, 1966, between Douglas and H. Robert Rees, appellant and son of R. Harold Rees, by which Douglas assigned to appellant all of his rights in the written contract of sale which he had acquired from the plumbing company in March. On this date neither Douglas nor appellant H. Robert Rees was indebted to the bank or appellee. About two weeks before this assignment, Harold R. Rees, individually, and the Arkansas company which he controlled executed new notes totalling $>72,500.00 to the appellee investment company in return for appellee paying their old notes which were owed to the Citizens Bank. An additional note of $7,020.00 was executed by Harold R. Rees and the company to appellee on December 22, 1966.

In May 1969 appellee secured a judgment in the total amount of $97,640.44 against Rees Plumbing and Harold R. Rees individually. A month later appellee discovered the existence of the two conveyances and thereupon the appellee and the bank filed the present action against Harold R. Rees, appellant H. Robert Rees, son of Harold R. Rees, Weldon Douglas, and their respective wives to set aside the conveyance from Rees Plumbing to Douglas and the assignment from Douglas to appellant H. Robert Rees, and for foreclosure of their judgment lien upon the property in dispute.

Beginning in September 1965, it appears that Rees Plumbing Company was heavily indebted to Citizens Bank and continued to borrow money and in many instances to write overdrafts until it ceased business in August or September 1966. The bank permitted this in a continuing effort to improve its security. A witness, who was vice president of the bank and chairman of the loan committee, testified that he was familiar with the Rees company account. There were constant problems such as the renewals of notes, which could not be paid, and the writing of overdrafts. In September 1965 the loan balance was $50,000.00 and during the monthly transactions thereafter the loan balance was never less than $50,000.00 and ranged up to $225,000.00, plus excessive overdrafts; for instance, in February 1966 one account balance reflected $5,112.81, another account was overdrawn by $74,697.64, and another account was overdrawn by $36,947.34. For this same month the high loan balance was $180,000.00 and the low was $170,-000. 00. On March 31, 1966, there was a balance of $6,-406.64 in one account, another account was overdrawn by $4,692.39, and another one showed an overdraft of $19,133.30. The high loan balance for this month was $180,000.00 and the low was $170,000.00. In April the loan balance was reduced from $180,000.00 to $135,000.00. In June the loan balance varied from $180,000.00 to $225,000.00; in July from $135,000.00 to $225,000.00; and in August the balance owed was $115,351.89. This witness testified that the bank had continued to renew the loans and to honor the overdrafts in an effort to strengthen its security by buttressing the financial position of the plumbing company. In December 1966 the plumbing company owed the bank notes totalling something less than $80,000.00. This former official of the bank testified that in his opinion the plumbing company was insolvent in March and December, the respective dates of the two conveyances. In fact, this witness was of the view that the plumbing company was insolvent since “the summer of 1965.”

Bank examiners insisted that the bank remove from its portfolio the Rees company indebtedness by January 1, 1967. Accordingly, in December 1966 the appellee investment company paid off the plumbing company’s and Rees’ notes to Citizens Bank and Harold R. Rees executed new notes to the investment company totalling $77,502.00. At the time these notes were executed, December 15 and 22, the written agreement between Rees Plumbing Company and Douglas had been in existence since March, or approximately 9 months. This agreement was never recorded; Douglas never paid anything on the mortgage, the taxes, or the insurance; nor did he ever see or take possession of the lake house property after this transaction. He was not aware of the amount of the mortgage or any existing equity in the property. Douglas’s testimony, which was unrebutted by Harold Rees or appellant Robert Rees, was that he surrendered his shares of stock in Rees Plumbing Company of New Mexaco on the promise of Harold R. Rees that he would receive shares in an Arkansas corporation and that the “Agreement For The Sale Of Rees Property” was given merely as security that Weldon Douglas would receive the promised shares. Douglas further stated that he gave the assignment of the property to appellant H. Robert Rees, at Rees’s father’s suggestion, because after the plumbing company went broke, he (Douglas) had no more interest in the property and just wanted to get rid of it. “I had already told him that I had no more interest in it — that I thought — as I said before that any collateral or security I was holding it for had dissipated and I only wanted what I thought I might have earned.” Appellant H. Robert Rees testified that he did not pay Douglas anything for any equity — Rees merely agreed “to make the payments and take over the obligation.”

Harold R. Rees testified by deposition that his company was not insolvent in March 1966. Loans were regularly extended upon a financial statement and collateral — a job completion estimate or an assignment. According to him, the Citizens Bank extended his company a $300,000.00 line of credit. He did not dispute that his company owed the bank $180,000.00 in March 1966. He maintained that during this month , his company was in a position to pay its debts. However, that would have resulted in no operating capital and his company would have been unable to meet the payroll which ranged from $30,000.00 to $50,000.00 per week. He testified that his company was able to meet its obligations until September 1966 when the bonding company refused him assistance.

Ark. Stat. Ann. § 68-1302 (Repl. 1957) provides that a conveyance or assignment which is made with the intent to hinder, delay or defraud creditors is void.

In United States Ozone Co. v. Morrilton Ice Co., 186 Ark. 485, 54 S. W. 2d 282 (1932), we said:

“* * * Fraud is never presumed, but must be affirmatively proved, and the burden of proving fraud is upon the party who alleges it and relies on it. 27 C. J. 44 et seq.
Whether or not there has been fraud in any case is usually a question of fact. Fraud is a question of law only when the facts are undisputed and but one reasonable conclusion can be reached from the evidence, or where there is an entire failure to sustain the issue.”

In a suit to set aside a fraudulent conveyance the allegation of fraud must be shown by a preponderance of the evidence. Clay v. Brand, 236 Ark. 236, 365 S. W. 2d 256 (1963); Killian v. Hayes, 251 Ark. 121, 470 S. W. 2d 939 (1971).

Badges or indicia of fraudulent conveyances include insolvency or indebtedness of transferor, inadequate or fictitious consideration, retention by debtor of property, pendency or threat of litigation, secrecy or concealment, and the fact that disputed transactions were conducted in a manner differing from usual business practices. Harris v. Shaw, 224 Ark. 150, 272 S. W. 2d 53 (1954).

One of the most important factors to be considered in cases of this kind is the insolvency or indebtedness of the parties. Insolvency is a lack of means to pay one’s debts, or in considering one’s assets and liabilities that the assets, if made immediately available, would not be sufficient to discharge the liabilities. Bank of Sun Prairie v. Hovig, 218 Fed. Supp. 769 (W. D. Ark. 1963).

In the case at bar we cannot say that the findings of the chancellor that the conveyances were fraudulent are against the preponderance of the evidence.

Further, we cannot agree with appellants that appellee’s complaint is subject to a motion to dismiss. Appellants assert that appellee cannot be subrogated as a successor creditor to the bank. In Rudy v. Austin, 56 Ark. 73, 19 S. W. 111 (1892), we held that when a voluntary conveyance was made to defraud a prior creditor, then a subsequent creditor who pays off the prior debts will be subrogated to the rights of the prior creditor. Therefore, in the case at bar, appellee would be subrogated to the rights of the bank.

Affirmed.


author: Frank Holt, Justice. Conley Byrd, Justice,

text:
    Collier WENDEROTH and Nancy Wenderoth v. CITY OF FORT SMITH, ARK. and GRAND INVESTMENTS, Inc. WESTARK RETIREMENT HOMES, Inc. v. CITY OF FORT SMITH, ARK. and Lawrence D. FARRAR et al
    5-5673
    5-5674
    472 S.W. 2d 74
    Opinion delivered November 1, 1971

      Harper, Young ir Smith and Pearce, Robinson ir McCord, for appellants.

      Daily, West, Core ir Coffman; Hardin, Jesson ir Dawson and Shaw ir Ledbetter, for appellees.
   Frank Holt, Justice.

The appellants, in these consolidated cases, appealed to the circuit court from the enactment of rezoning ordinances by the appellee city’s Board of Directors. These ordinances rezoned certain properties adjacent to appellants. Their objections are that the rezoning is contrary to the characteristics of the neighborhood and detrimental to them and to their properties. The rezoned properties are located within the city limits and are owned separately by the appellees Grand Investments, Inc. and Lawrence D. Farrar et al. Upon motions of the appellees, the circuit court dismissed these appeals on the basis that Ark. Stat. Ann. § 19-2830.1 (Repl. 1968), which permits an appeal de novo to the circuit court from the enactment of rezoning ordinances by a city’s legislative body, is unconstitutional because in violation of Article 4 of our state constitution. The sole issue, therefore, on appeal concerns the validity of this statute.

Appellants contend for reversal that the statute does not contravene Article 4 which is that provision in our constitution providing for separation of powers between the executive, legislative, and judicial branches of government. Article 4 of our constitution reads:

§1. The powers of the government of the State of Arkansas shall be divided into three distinct departments, each of them to be confided to a separate body of magistracy, to wit: those which are legislative to one, those which are executive to another, and those which are judicial to another..

Ark. Stat. Ann. § 19-2830.1, pertaining to building and zoning regulations, provides:

In addition to any remedy now provided by law, appeals from final action taken by the administrative, quasi judicial, and legislative agencies concerned in the administration of this Act may be taken to the Circuit Court of the appropriate county, wherein the same shall be tried de novo according to the same procedure which applies to appeals in civil actions from decisions of inferior courts, including the right of trial by jury.

The procedure provided for in this act was before us in three other cases. City of Little Rock v. Leawood Property, 242 Ark. 451, 413 S. W. 2d 877 (1967); Arkansas Power & Light v. City of Little Rock, 243 Ark. 290, 420 S. W. 2d 85 (1967); Wright v. City of Little Rock, 245 Ark. 355, 432 S. W. 2d 488 (1968). However, in neither of those cases was the constitutionality of this act considered.

We think the court was correct, in the case at bar, in holding the statute unconstitutional. The legislative power of the people is vested in the general assembly with the right of the initiative and referendum reserved to the people. Amendment 7, § 1. Although the power to enact laws is vested in our General Assembly, we have long recognized that our legislature can delegate to municipal corporations the legislative power to enact ordinances. Little Rock v. North Little Rock, 72 Ark. 195, 79 S. W. 785 (1904). There we said that: “*** there is nothing better settled than that the legislature may delegate to a town council legislative authority over the municipal affairs of the town.” Therefore, when a city exercises the power conferred upon it by our state legislature, the city is acting in a legislative capacity which is co-equal with the power of the legislature itself. Little Rock Ry. & Elec. Co. v. Dowell, 101 Ark. 223, 142 S. W. 165 (1911). There we said that when a municipality exercised the delegation of this legislative authority, the courts cannot take away the discretion vested in the city’s legislative body. See, also, 16 Am. Jur. 2d 466, §§ 223 and 504, § 255.

In the case at bar we are likewise of the view that this statute cannot empower the judiciary to take away the discretionary powers vested by our legislature in the city’s legislative body to enact zoning and rezoning ordinances. The provisions of this statute provide for a trial de novo, including the right of a trial by jury, in reviewing the legislative action of the city. On appeal the issue would be tried entirely anew, the same as if the city’s governing board had not acted. City of Little Rock v. Leawood Property, supra. By this method of appellate review de novo there is attempted to impose upon the circuit court a function of a non-judicial character in a matter that is exclusively within the discretion and legitimate power of the city’s legislative body. The result would be to substitute the judgment of the circuit court for that of a municipal law-making body. This is contrary to Article 4 of our constitution which prohibits intrusion by the judiciary upon the legislative domain.

In Ball v. Jones, 132 So. 2d 120 (Ala. 1961) the identical question was presented as is now before us. In holding a similar statute unconstitutional the court said: “The limitation of judicial review grows out of the character of the proceedings involved. That the enactment of zoning ordinances is a legislative function and not a judicial one is well established and should need little citation of authority.” Further: “##* Also, the amendment to a comprehensive zoning ordinance or a rezoning of a certain area, as was done in the instant case, becomes a part of the existing comprehensive ordinance and, a fortiori, is a legislative act.” See, also, Roberts v. McCollum, 109 S. E. 2d 744 (Ga. 1959); Hunt v. McCollum, 108 S. E. 2d 275 (Ga. 1959); California Co. v. State Oil & Gas Bd., 200 Miss. 824, 27 So. 2d 542, 28 So. 2d 120 (1946). In City of Meridian v. Davidson, 211 Miss. 683, 53 So. 2d 48 (1951), in respect to separation of powers, we find this pertinent language: “It would have been beyond the power of the Legislature to grant a trial de novo in the sense of foisting upon a court and jury the performance of non-judicial functions, that is to say in the sense of permitting the court or jury to substitute their own judgment for that of the civil service commission when the latter had exercised purely an executive function.”

However, zoning regulations and ordinances are not immune to appellate review. Our chancery courts have the power to grant relief in appropriate proceedings when a zoning ordinance is arbitrary, capricious, or unreasonable. Herring v. Stannus, 169 Ark. 244, 275 S. W. 321 (1925); City of Little Rock v. Fausett & Co. Inc., 222 Ark. 193, 258 S. W. 2d 48 (1953); Olsen v. City of Little Rock, 241 Ark. 155, 406 S. W. 2d 706 (1966). See, also, 23 Ark. L. Rev. 22 (1969). On this restricted basis our chancery courts have reviewed the validity of zoning ordinances. In other words, the enactment of zoning ordinances is a legislative function subject only to appellate review to determine whether the city’s legislative body acted arbitrarily, capriciously, or unreasonably in the enactment of the ordinance.

As the act before us is written, it clearly authorizes the circuit court or jury to substitute its judgment and discretion for that of a legislative agency of the state and to nullify its action. In Little Rock Ry. & Elec. Co. v. Dowell; supra, we said:

“* * * It is only an arbitrary abuse of the power which the courts should control; and when the exercise of that power and discretion is attacked in the courts, a presumption must be indulged that the council has not abused its discretion, but has acted with reason and in good faith for the benefit of the public. To proceed upon any other theory would be to substitute the judgment and discretion of the courts for the judgment of the members of the council with whom the lawmakers have seen fit to lodge this power.”

In the case at bar the act provides no standard to guide the jury or the court as to whether the ordinance enacted by the city should be upheld or annulled. It appears perfectly clear that our constitution does not permit the legislature to empower the judiciary to review the wisdom or unwisdom, the rightness or wrongness of ordinances enacted by virtue of the legislature’s delegation of power to tbe city’s legislative body any more than our constitution permits the legislature to empower the judiciary to likewise review the laws which the legislature itself enacts. Accordingly, we hold, after giving presumptive validity to the act before us, that the court correctly construed it as being unconstitutional, when applied to zoning or rezoning ordinances.

The appellants also contend that if the right to trial by jury and trial de novo provisions of the statute are unconstitutional then those provisions are severable from the statute, leaving the balance of the act valid. Appellants assert that the remainder of the act is operative and sufficient to place appellate jurisdiction in the circuit court from the zoning authority. An act is not severable when the entire section is so mutually connected and interwoven that it reflects the intent of the legislature to enact it as a whole. Neal v. Still, Judge, 248 Ark. 1132, 455 S. W. 2d 921 (1970). In the case at bar, the provision for an appeal consists of only one sentence. In our view, the legislature intended to enact this statute as a whole and not in parts.

Affirmed.

Byrd, J., dissents.

Conley Byrd, Justice,

dissenting. I readily admit that the determination of whether a city will exercise its zoning authority is a legislative matter depending upon the popular will of the inhabitants of a city. Also the determination that property shall be zoned according to single family, multiple family, commercial and industrial uses is a legislative matter. However,. nothing would be more arbitrary than to permit a city to. designate specific property for use as single family, multiple family or commercial purposes without a hearing to make some determination of the facts involved. On the first appeal, Wenderoth v. Freeze, Mayor, 248 Ark. 469, 452 S. W. 2d 328 (1970), it was pointed out that such hearings affect vital property rights and the rezoning by the City was reversed because appellant did not have ample notice for purposes of appearing and giving evidence before the planning commission.

In Scroggins v. Kerr, 217 Ark. 137, 228 S. W. 2d 995 (1950), it was pointed out that in some functions city councils act quasi-judicially, as distinguished from their executive and legislative functions.

Of course in matters involving the legislative functions of city councils there is a right of referendum. But a change in the designation for which property may be used from single family to commercial or industrial, in accordance with the criterion established by an existing zoning ordinance, is nothing more than an exercise of a conclusion upon the facts presented or known. However by today’s decision, it is now a legislative matter, subject to the popular will of a city’s inhabitants either through their elected officials or by their own vote in an initiative and referendum or both.

The vice in holding that the determination of use of property in accordance with an existing zoning code classification is a legislative function can be most aptly demonstrated in those cases in which rezoning of property is resisted by commercial competitiors. By today’s decision a commercial competitor, with political muscle, can legally prevent a private owner from using his property for competing commercial purposes through the legislative processes of the city. This is contrary to our Constitution Art. 2 § 19 that monopolies shall not be allowed and also Art. 2 § 22 prohibiting the condemnation of private property for private purposes.

An act of the legislature should be construed to make it constitutional if possible. Therefore zoning or rezoning in accordance with an existing classification established by ordinance is and should be nothing more than a fact determination demonstratable to any fact finder including a jury. Considered in the light that the city’s function is quasi-judicial, the act in question would be constitutional.

The absurdity of classifying a city’s action in categorizing property for use purposes as legislative in character is demonstrated by the fact that the other Section of Act 134 of 1965, the Act here under attack, authorizes a city to exercise zoning jurisdiction over property lying outside its corporate limits and along a navigable stream for a distance of five miles in either direction. Thus by today’s decision a number of farmers along the Arkansas River and other navigable streams will find the use of their property controlled by the political whims of city inhabitants and themselves without a voice or a vote even on a referendum. Legislation without representation has never been favored.

For the reasons stated, I respectfully dissent.

      We do not pass upon the constitutionality of the act as applied to the city council or other agencies acting in an administrative or quasi-judicial capacity.


author: Carleton Harris, Chief Justice.

text:
    Arvil W. DENNIS v. Robert Lee YOUNTS, Mary Ellen KING and Johnny May HOLLAND
    5-5641
    472 S.W. 2d 711
    Opinion delivered November 8, 1971

      Moses, McClellan, Arnold, Owen if McDermott, for appellant.

      Terral, Rawlings, Matthews ir Purtle, for appellees.
   Carleton Harris, Chief Justice.

This appeal involves the validity of a certain special warranty deed given by appellant, Arvil W. Dennis, on July 19, 1962, to his wife. Mr. and Mrs. Dennis had been divorced twice and had remarried twice, the last divorce occurring in 1947, and the last remarriage on December 8, 1948. On September 7, 1959, the Dennises entered into a contract and agreement to purchase the real estate, here in litigation, from Mrs. Ludie M. Gipson. Appellant and his wife took possession contemporaneously with the execution of the agreement and continued to live together on the property as husband and wife until sometime in the late winter or early spring of 1962, at which time they separated. Thereafter, on July 19, 1962, appellant executed a special warranty deed to his wife conveying the property to her. Sometime in 1964, the appellant and his wife resumed cohabitation as husband and wife and continued to live together on this property until the death of Mrs. Dennis on December 29, 1967. Mrs. Dennis was the mother of two children by a previous marriage, Robert Lee Younts and Johnny May Holland, and Mr. and Mrs. Dennis were the parents of one child, Mary Ellen King. In September, 1970, Dennis instituted suit against these three persons alleging that he was in possession of the property (by and through a tenant), and had made improvements on same and paid all taxes. It was asserted that the deed, heretofore mentioned, was given by him to his late spouse as a property settlement with the understanding that she would later institute divorce proceedings against him; that this was never done, and the parties subsequently effectuated a reconciliation and resumed the marital relationship. It is asserted that after the death of Mrs. Dennis, appellees (the children named above) made claim to the property, and it was prayed that title to the premises be quieted and confirmed in appellant. On trial, the court held contrary to this contention, finding that Younts, Holland, and King, as sole heirs at law of Mrs. Dennis, were the owners of the property and entitled to immediate possession. From the decree so entered, appellant brings this appeal. For reversal, it is urged that the chancellor erred in holding that the deed was not cancelled by the subsequent reconciliation and cohabitation of Dennis and his wife, and further that the court erred in not permitting certain testimony offered by appellant.

The general rule in the matter at hand is set out in Carter v. Younger, 112 Ark. 483, 166 S. W. 547, where this court said:

“Where the parties to a valid separation agreement afterward come together, and live together as husband and wife, where their conduct toward each other is such that no other reasonable conclusion can be indulged than that they had set aside or abrogated their agreement of separation, then such agreement should be held as annulled by the parties to it, and their marital rights determined accordingly.”

Other cases dealing with reconciliation following property settlements are Sherman v. Sherman, 159 Ark. 364, 252 S. W. 27, Simpson, Administrator v. Weatherman, 216 Ark. 684, 227 S. W. 2d 148, and Ward v. Ward, 249 Ark. 1001 (1971), 463 S. W. 2d 90. In all of these cases, a property agreement was entered into between the parties in contemplation of separation or divorce. In Carter v. Younger, supra, which is actually the strongest case offered in support of appellant’s argument, the opinion reflects that Younger and his wife, while husband and wife, but living apart from each other, entered into an agreement of separation; among other things it was stipulated in the agreement that in consideration of several covenants of the wife, one consideration being the payment of a sum of money, Mrs. Younger released her husband from any claim or obligation for her support or maintenance and also released or relinquished any right or claim of dower. Upon the death of Younger, Mrs. Younger sought her dower rights, though she admitted the execution of the aforesaid agreement. However, she offered proof that the agreement had been abrogated, and this court held that the evidence (though not mentioning what the evidence consisted of) was sufficient to warrant a finding (by the jury) that the contract had been abrogated and the parties had been reconciled and had resumed the marital relationship.

In Sherman v. Sherman, supra, Sherman and his wife entered into a written agreement of separation whereby each took certain property, the consideration being that each gave up his or her rights in the property that the other would receive. However, the proof developed that, though the agreement had been entered into in contemplation of a separation, such separation never actually occurred, and they continued to live together until his death. The court, under these circumstances, said that the agreement had been abrogated. In Simpson, Administrator v. Weatherman, supra, we quoted from a California case, which, in turn had quoted from 30 C. J., § 847, p. 1066 as follows:

“Strictly speaking, a contract of separation is annulled and avoided, not solely, or necessarily as a matter of law, by a subsequent reconciliation, cohabitation, or resumption of the marital relation, but rather by the intentional renunciation of the agreement which the reconciliation and resumption of the marital relation sometimes evidences. Subsequent cohabitation has the effect of avoiding the contract so far, and only so far, as it establishes an intention to renounce the agreement.”

In Ward v. Ward, supra, the parties entered into a property settlement in contemplation of divorce with Mrs. Ward quitclaiming her interest in the property to Mr. Ward. The decree was set aside by the parties and marital relations were resumed. This property settlement was entered into in 1965, and it is noticeable that Mr. Ward did not record his deed until August of 1969, at which time his wife learned that he had a teen-aged girl friend. This court held that the evidence showed that the parties intended to abrogate the property settlement at the time they caused the divorce decree to be set aside. The facts in our case are somewhat different.

The evidence reflected that Dennis became separated from his wife in early 1962, and began living openly with another woman. When asked why he executed the deed, Dennis replied:

“Well, I was away from home, your Honor, sir, and I thought it over a lot and I felt sorry for my wife and on a certain time I went out and told her — she was at home, if she would have some papers fixed up, I’d sign my part over to her. And so, that was to be — I was to sign them over to her and if she died first it would come to me and if I died first it was all to go to her. That was the agreement we made and so — ”

This is the only reference to any agreement in the record, and it is a strange agreement, for if Dennis wanted his wife to simply occupy the property, she was already doing so, and as far as agreeing that the property would go to the one who last survived, no deed was necessary for they had already contracted to purchase the property as an estate by the entirety. In other words, under appellant’s testimony, no rights to Mrs. Dennis were added. In the cases cited, property agreements were entered into in contemplation of divorce or separation, and each party individually gave up something, and individually acquired something, under the terms of the agreement; that is to say, there was consideration. But here, there is no evidence that Mrs. Dennis agreed to do anything as an inducement, or consideration, for Mr. Dennis to convey to her the home property. Actually, it appears that the chancellor summed it up correctly when he said:

“It is very clear. He moved in with another woman and got to feeling bad about his wife and deeded her the house. It is very clear. You can proceed. He deeded his wife the house.”

It simply seems that Mr. Dennis made a gift of the property to his wife.

Another interesting circumstance indicating that Mrs. Dennis certainly didn’t consider that she had agreed that he should have. the property in case of her death is the fact that on the same day she received the deed from appellant, she executed her last will and testament leaving all of her property to the three appellees. In all the record, there is no evidence that this deed was executed as consideration for the fact that Mr. Dennis would live separate and apart from his wife, would not have to pay support money, or that he or Mrs. Dennis would institute suit for a divorce.

We agree with the trial court that the evidence was insufficient to show that an agreement was ever entered into, and was insufficient to show that upon reconciliation, there was an intention to cancel the deed.

It is asserted that the trial court erred in refusing to allow appellant to introduce certain evidence. In each instance, proffer of the evidence was made by the witness. For instance, Glenn George Kennedy stated that Mrs. Dennis told him “she was not going to get any divorce, there wouldn’t be any divorce”. Further, “Well, she said Mr. Dennis did not want a divorce and she wouldn’t let him have one if he wanted it because she loved the man more than she did her own life”. We do not see how this testimony would be of any help; to the contrary, such testimony would support the chancellor’s findings for this proffered testimony only bolsters appellees’ argument, that there was no property settlement made in contemplation of divorce.

In another instance, Dennis tried to testify that his daughter, Mary Ellen King, had told him she and her half-brother, Bob Younts, were in the house when her mother told her and Bob that if anything happened to her (Mrs. Dennis) she wanted Mr. Dennis to have the home place, and that she then tore up the deed which he had given her. This statement was objected to, the court sustaining the objection, but it was proffered. The court ruled correctly. This was hearsay evidence. Of course, Mrs. King, the daughter, could have testified to this fact herself, and Mr. Dennis could have called Mrs. King to the stand for that purpose, but this was not done. There were other instances where evidence was refused, and proffer made, but we do not consider such evidence pertinent to the issue. At any rate, if we considered the evidence admissible, we would still reach the same conclusion, for the testimony is insufficient to establish an agreement between the parties or, after reconciliation, that there was an intention to abrogate the agreement.

It follows from what has been said that the judgment is affirmed.

It is so ordered.

      While the contract is dated September 7, 1959, the signing of the contract before a Notary Public occurred on May 20, 1960, but this fact has no significance here.

      Other findings relating to personal property were made, but these are not under attack.

        Whitlow v. Durst, Cal. Dist. Court of Appeal, 121 P. 2d 810.

      Mrs. Dennis had the deed recorded four days after receiving it.

      Following this testimony, Kennedy stayed with his original answer, despite a leading question. From the record:
      “Q. But she did mention that a divorce had been contemplated by the parties?
      A. Ask that question again.
      Q. Did she use the word divorce in her conversation with you?
      A. Well she did when she said they were not going to get any divorce.”