author: Frank Holt, Justice.

text:
    Van RICHIE v. STATE of Arkansas
    5583
    466 S. W. 2d 462
    Opinion delivered May 10, 1971

      Louis W. Rostech, for appellant.

      Ray Thornton, Attorney General; Garner L. Taylor Jr., Asst. Atty Gen., for appellee.
   Frank Holt, Justice.

The trial court, sitting as a jury, found appellant guilty of burglary and imposed a two-year sentence in the State Penitentiary. On appeal, the appellant contends for reversal that the evidence is insufficient to establish that a burglary had occurred, or that he had committed the alleged burglary.

In accordance with our well-established rule, we must view the evidence on appeal in the light most favorable to the appellee and sustain the verdict when there is any substantial evidence to support it. Crow v. State, 248 Ark, 1051, 455 S. W. 2d 89; Reynolds v. State, 211 Ark. 383, 200 S. W. 2d 806 (1947); Sanders v. State, 198 Ark. 880, 131 S. W. 2d 936 (1939).

On a Sunday afternoon at approximately 5 p.m., officer Gene Johnston received information on his car radio that Teeter’s car lot had been burglarized by two individuals. It appears that the officer was cruising in this neighborhood. When he observed the appellant and a codefendant seven blocks from this car lot, he stopped them and conducted a “field search” which revealed that both men were in possession of various papers belonging to Teeter’s. Thereupon the officer transported the two suspects to Teeter’s where he was joined by two other police officers. There the Teeter papers, consisting of four separate items, were removed from the possession of both suspects, although Officer Johnston could not say which items were removed from appellant. Officer Johnston testified that he found a window broken out beside the door leading into the office and that a person could reach through the broken window and unlock this door. Officer Yow testified that appellant and his codefendant told him they had taken a set of “master keys”; then both suspects accompanied him to a lot behind a church building near Teeter’s where, according to their directions, he found the keys in the grass. This officer, after being uncertain which suspect pointed out the location of the keys, finally testified there was no doubt in his mind that appellant showed him where the keys were. The State also adduced evidence from the manager of the car lot that on the date of the burglary he responded to a call from the police to come to the place of business and identify some keys and papers. As a witness he identified the four items of papers consisting of a car sales contract between Teeter’s and a customer, related papers, and the customer’s $2,295.00 check payable to Teeter’s. He testified that they came from Teeter’s and that he remembered this particular transaction with this customer since he had to get a new contract and check. He also testified that the “master keys” belonged to the car lot and were used in the operation of the business.

In Johnson v. State, 190 Ark. 979, 82 S. W. 2d 521 (1935), we said:

“* * * The law is that recent possession of stolen property, unexplained, is sufficient to warrant a jury in returning a verdict of guilty against one charged with burglary and larceny where 'a house had been broken into and property stolen.”

In the case at bar, although evidence presented by the State to the effect that a burglary had occurred and that appellant had committed the alleged offense is circumstantial in nature, such evidence presents a question of fact to be determined by a jury. Mathis v. State, 249 Ark. 1088, 464 S. W. 2d 48; Scott v. State, 180 Ark. 408, 21 S. W. 2d 186 (1929).

The appellant denied complicity in the alleged offense. He testified that he was walking home about 9:30 p.m. (not 5 p.m.) when he happened to meet his codefendant and had accepted from him an invitation to walk to his house where car transportation would be available. He admits observing the officers remove the Teeter papers from the person of his codefendant. In questioning the sufficiency of the evidence, appellant also argues that Officers Johnston and Yow were uncertain which of the Teeter papers were removed from him; that Officer Yow equivocated in his testimony that appellant pointed out the location of the keys, even though he later testified there was no doubt in his mind that appellant pointed out to him the location where the keys were found. Also, that one of the papers showed Teeter’s Little Rock address instead of the North Little Rock address where the alleged burglary occurred. Appellant asserts that this vague evidence, together with his denial of complicity and his explanation of being within seven blocks of the alleged burglary with his co-defendant, whom he admits had possession of the Teeter papers, is insufficient to sustain his participation in the alleged burglary. In Crow v. State, supra, we said:

“* * * The weight to be given the conflicting testimony and all reasonable inferences to be drawn therefrom were questions for the jury to determine.”

In the case at bar, when we view the evidence most favorably to the appellee, as we must do, we hold there was substantial evidence from which the trial court, sitting as a jury, could find that a burglary (breaking or entering with unlawful intent to commit larceny) had occurred and that appellant had participated in the alleged offense.

Affirmed.

Byrd, J., dissents.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    HEIRS OF OLIVER W. MILLS v. Charles William WYLIE et al
    5-5548
    466 S. W. 2d 937
    Opinion delivered May 17, 1971

      David J. Potter, for appellants.

      Graves & Graves, for appellees.
   Carleton Harris, Chief Justice.

There is an old adage “Hard cases make bad law”. The circumstances of this case are such that the old adage can be understood for actually our holding in this case may not be in accord with the actual intention of the testator— existing in his mind—but certainly it is in accord with long established law that the court’s finding shall be based on the intention of the testator—as expressed by the language of the will. Appellants are the heirs of Oliver W. Mills, consisting of six persons, but actually it appears that there are approximately ninety-three persons eligible to share in the estate of Oliver W. Mills provided appellants prevail. Mills died testate, a resident of Hempstead County on the 5th day of November, 1969. His wife had predeceased him, and the two had no children. Charles William Wylie, a nephew of decedent’s wife, was named executor of the will, and it was admitted to probate. Subsequently, Wylie, also the main beneficiary, petitioned the court for a construction of the will and determination of heirship; the petition was granted, and a hearing was held by the court which included the testimony of Wylie and two persons on his behalf, and the testimony of four respondents. At the conclusion of the hearing and after submission of briefs, the court filed its opinion construing the will in favor of Mr. Wylie and Hattie Tyree, a sister of Mrs. Mills, and sister-in-law of the deceased, who was also a beneficiary. From the order so entered, appellants have brought this appeal. For reversal, four points are asserted, but all relate to the fact that the judge permitted the taking of extrinsic evidence for the purpose of determining whether there was an ambiguity, when appellants say there was no ambiguity.

The will, executed by Mills on August 10, 1966, after providing for the payment of debts, reads as follows:

“2. I give, devise and bequeath all my property of every kind, whether real, personal or mixed, to my beloved wife, Mary B. Mills. In the event Mary B. Mills survives me, and remarries, then I direct that my estate be divided between Mary B. Mills and Charles William Wylie, share and share alike.
S. Should Mary B. Mills and I meet death in a common disaster, then I direct that my estate go to the following:
The Snell Cemetery at Emmett $250.00;
Rose Hill Cemetery at Hope $250.00;
First Methodist Church at Hope $500.00; and
Emmett Methodist Church at Emmett $250.00.
Hattie Tyree...............................................one fourth (in the event Hattie Tyree predeceases me then I direct that the part that she would have received go back to my estate)
Charles William Wylie...................the remainder of my estate
5. In the event Charles William Wylie dies without issue, I direct that my entire estate go to my sister-in-law, Hattie Tyree.
6. If Hattie Tyree should survive me, and wants to live in one of our homes I direct that all furnishings be left in said home for her to use, and also a car, for her use during her lifetime.
7. I hereby nominate, constitute and appoint Charles William Wylie as executor of my estate under this my Last Will and Testament and, if it is possible for him to serve in this capacity, I desire that he do so without bond. In the event Charles William Wylie is unable to serve as executor of my estate for any reason, I desire that the Court appoint some-one to serve, but that it not be either one of my brothers-in-law.”

The instrument was then signed by Mills and witnessed by two persons, but there is no dispute but that Mills did execute the will, and that he was fully competent to do so, and acted without undue influence.

In his brief, counsel for appellant suggests that we first read the will without reading the testimony, and thus determine if there is any ambiguity in the written instrument. He was confident that we would find none— and his confidence was justified—for no ambiguity is discovered. It, of course, is apparent to any attorney who has read thus far that the language at issue, and which determines the outcome of this litigation, is found in item three as follows: “Should Mary B. Mills and I meet death in a common disaster, then I direct that my estate go to the following: [Emphasis supplied]”

Appellant’s contention is very simple, viz, the disposition in items three and five is made subject to the contingency that Mills and his wife should be killed in a common disaster.

It very clearly appears from the language in the instrument that Mills had two thoughts in mind in making this will, first, he declared what would happen if his wife survived him, and secondly he provided what would happen if he and his wife were killed in a common disaster. In the first instance, the language provides that testator’s wife is to receive all of his property, but that in the event she remarries, then one-half of his estate is devised and bequeathed to Wylie. This item never became effective because Mrs. Mills predeceased her husband. Likewise, item three never became effective because the testator and Mrs. Mills did not die in a common disaster. Item five can mean nothing, for Wylie was only to receive his interest in the estate under either item two or item three; otherwise, he received nothing. Since neither of the contingencies mentioned in those two items occurred, both provisions are completely ineffective.

Items six and seven are not under attack by appellants, and are thus not involved in this appeal.

It has often been loosely said that in construing a will, a court endeavors to determine the intention of the testator—but this statement is not quite true. As stated in Park v. Holloman, 210 Ark. 288, 195 S. W. 2d 546:

‘The appellants are correct in the statement that the purpose of construction is to arrive at the intention of the testator; but that intention is not that which existed in the mind of the testator, but that which is expressed in the language of the will. [Emphasis supplied]”

In Smith v. Smith, 229 Ark. 579, 317 S. W. 2d 275, this court stated:

“It is well settled law in this state, so well settled as to require no citation of authority, that where there is no ambiguity, or no conflict or repugnance between the provisions of the will, judicial interpretation or construction is not required.”

In Quattlebaum v. Simmons National Bank of Pine Bluff, 208 Ark. 66, 184 S. W. 2d 911, we held that where the meaning of the language in a will is unambiguous, testimony as to the testator’s intention is inadmissible. In Wilson v. Storthz, 117 Ark. 418, 175 S. W. 45, we said:

“The testator’s intention must be gathered from the will, and, while evidence may be received to explain any ambiguity in the designation of a beneficiary, yet neither the scrivener, nor anyone else, can be permitted to testify that the testator meant or intended any disposition of his property not expressed in the will.”

In Rufty v. Brantly, 204 Ark. 32, 161 S. W. 2d 11, it was said:

“The rule is, however, inflexible that surrounding circumstances cannot be resorted to for the purpose of importing into the will any intention which is not there expressed, and when a will is not ambiguous in terms it is unnecessary to resort to testimony as to the surrounding circumstances in order to ascertain its meaning.”

Almost an inestimable number of cases could be cited to the same effect. We have thus said that where the meaning of the language is not ambiguous, testimony as to the testator’s intention is “inadmissible”, “unnecessary”, “construction is not required”, and no one “can be permitted to testify that the testator meant or intended any disposition of his property not expressed in his will”. Perhaps these holdings can be summed up by a holding of this court in Lavenue v. Lewis, 185 Ark. 159, 46 S. W. 2d 649, wherein we quoted from one of the great United States Supreme Court Justices as follows:

‘The first great rule in exposition of wills (to which all other rules must bend) said Chief Justice Marshall, in Smith v. Bell, (6 Pet.) 31 US 68, 8 L. Ed. 322, is that the intention of the testator expressed in his will [emphasis supplied] shall prevail, provided it be consistent with the rules of law.”

Since we find that there was no ambiguity, there is no necessity to discuss the testimony. Under our decision in Vaught v. Vaught, 247 Ark. 51, 444 S. W. 2d 104, a case referred to by the chancellor, testimony on the question of why Mills placed the common disaster clause in the instrument, might have been pertinent as showing whether the contingency was the reason for making the will at the time of execution, or whether it was intended to specify the condition upon which the will was to become operative. For instance, testimony that Mills and his wife were getting ready to make a long trip within a few days by automobile or airplane might well have been pertinent to the question of whether the will was conditional. There was, of course, no such evidence. In Vaught v. Vaught supra, we were called upon to determine whether the court should have admitted a holographic will to probate. The opening sentence of the will read, “This is my will if I should die at once”. The testator then set out, “I want Marie Vaught, to have my land and personal property”. The instrument was dated January 11, 1951, and Vaught died on June 5, 1966. This court stated:

‘The particular question depends upon whether the contingency is referred to as the occasion of, or reason for, making the will at the time of execution, or is referred to as the reason for making the particular disposition of property which would be disposed of thereby and is intended to specify the condition upon which the will is to become operative. In the latter case, the will is contingent or conditional. In the former it is not. 1 Page on Wills (New Rev. Treatise), 418, 423, §§ 9.1, 9.5; Annot. 1 A. L. R. 3d 1048, 1050; 57 Am. Jur. 453, 456, §§ 671, 674; 94 C. J. S. 939, Wills § 152; In re Taylor’s Estate, 119 Cal. App. 2d 574, 259 P. 2d 1014 (1953).”

The words “if I should die at once” state a contingency, and oral evidence was admissible to shed light on the reason for the use of this language. The proof reflected that the will was apparently made in contemplation of hospitalization and surgery. Accordingly, in effect, we held that the impending surgery was the occasion or reason for the testator making the will at the time of execution and the will was thus not a contingent or conditional will, reversing the trial court in a four to three decision. But that situation is not present in the instant case.

The chancellor, in his opinion, referred to our holding in Vaught v. Vaught supra, stating:

“If this test applies in determining if a will is unconditional it should apply in determining if it is ambiguous, more especially when as here the extrinsic evidence in the record clearly establishes what the deceased intended.”

It is apparent from what we have said about the holding in Vaught, that we cannot agree with this statement of the chancellor, and actually if there is any ambiguity in this case, it was created by the testimony —not by the language.

Were we to affirm this case, no will would be immune from a possible successful attack, for while the testator might plainly state the disposition desired, there could well be numerous heirs who would go into court to prove by oral evidence that “Grandpa”, or “Uncle Jim”, or whoever the testator might be, really meant something else, and had numerous times, over the years, stated contrary intentions to those expressed in the will.

As we construe the English Language, the words used in the will of Oliver W. Mills are plain and clear, and entirely free from ambiguity, and it follows that all oral evidence was inadmissible.

Without any intention of being critical of the scrivener of this will, we have another clear example of a person who is untrained in the law, and totally unfamiliar with rules of construction, preparing a legal instrument. Many wills, and many deeds, have passed, and conveyed, property in a manner inconsistent with the desire that the testator, or grantor, might have had in mind, because the instrument was not prepared by one familiar with the legal effect of words used.

The order of the Hempstead County Probate Court is reversed and the cause remanded to that court for the entry of a decree consistent with this opinion.

Brown, J., not participating.

       The will was prepared by Nellie Jean Webb, who was also one of the witnesses, a former legal secretary for a Hope legal firm. Following her employment by that firm, she had been employed at Red River Vocational School, but was not working at all at the time of the trial. Mrs. Webb copied the language in paragraph three, pertinent to this appeal, from a will which had been executed some years earlier, though changes were made in the beneficiaries, and the portions which were devised and bequeathed. Mrs. Webb stated that she typed it as a favor to friends and that Mrs. Mills gave her $5.00 for doing so.

       There was no item four, Mrs. Webb stating that she simply made a mistake in numbering.

       In Vaught v. Vaught supra, referring to Wilson v. Higgason, 207 Ark. 32, 178 S. W. 2d 855, we said: "The writer of that letter [testator] certainly did not desire that the addressee collect his insurance and money and make the division directed unless he died ‘anytime soon.’ Nor did he intend for his other desires to be carried into effect except in case of his death soon. In other words, the conditions there stated could have only been construed as stating the conditions under which the testamentary document became operative and not as the reason for making a will. On the other hand, the language “This is my will if I die at once” can be construed as stating the reason for the making of the will, i. e., that possibility of impending death which provokes much testamentary action. Since it can be so construed, it should be.”


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Juanita SINKHORN v. Joel C. MEREDITH, Frances L. Meredith and Lillian Denise Meredith, a Minor, by her next Friend, Joel C. Meredith
    5-5568
    466 S. W. 2d 927
    Opinion delivered May 17, 1971

      Shackleford &r Shackleford, for appellant.

      Richard E. Griffin, Ovid T. Switzer, Bruce D. Switzer and Tom Tanner, for appellees.
   Carleton Harris, Chief Justice.

The only question on this appeal is whether verdicts awarded Joel C. Meredith, his wife, Frances L. Meredith, and daughter Lillian Denise Meredith, a minor, against Juanita Sinkhorn, appellant herein, were excessive. The three appellees were injured ip an accident in Jefferson County on September 1, 1969, and a jury fixed damages at $5,000 for Mr. Meredith, $10,000 for his wife, and $2,500 for the daughter. After motion for a new trial had been overruled, and judgment entered in favor of appellees appellant filed this appeal. Since appellee, Frances L. Meredith, the wife, received the greater injuries, we proceed to first discuss the propriety of the amount of the judgment awarded to her. Following the accident, all three were taken to the Jefferson Hospital in Pine Bluff, where they received treatment from Dr. Nash of that city. Dr. Nash’s report related that when Mrs. Meredith was brought to the emergency room, she was somewhat confused, complaining of head, chest, right leg, right and left shoulder injuries; she was admitted to the hospital for further care. His diagnosis related head injuries, left shoulder injuries with pneumothorax, and right leg abrasions. She was discharged to the care of Dr. R. L. Salb, a physician of Crossett. Dr. Salb testified that he was given a history by Dr. Nash, and primarily was to "follow up” on the pneumothorax, the doctor explaining that this was the collapse of a lung. He stated that the clavicle (collarbone) was displaced at the time of the injury and probably punctured the lung and then slipped back out. He observed the fragmented edges of the clavicle, and, from his experience, presumed that was what had happened. The doctor stated that Dr. Nash had already immobilized the clavicle by brace, which was most uncomfortable to the patient. He stated that her injury was a painful one and that she had a painful healing period; that about eight weeks transpired before she was free from “quite a bit of discomfort”. He said that as she wore the brace, it became loosened in some manner and this slowed the healing. The clavicle had moved out of position, and a malformation in the form of a knot on the clavical would be permanent. Dr. Salb testified that if she were to have lung surgery on the left side, she might have considerable difficulty, “Instead of the lung collapsing when you enter the pleura space, it don’t and then you have to start and dissect this lung. From the word go it might be very difficult.” He said that the lung was capable of function and would cause no trouble except if she needed lung surgery or another pneumothorax, or treatment for, as an example, tuberculosis; in such case it was possible that there could be grave consequences. The witness stated that this susceptibility would continue for the rest of her life. When asked about a disability evaluation, he answered “It would be somewhere between five and ten per cent, possibly”.

Mrs. Meredith, 24 years of age, stated that she received a blow on the side of her head, a fractured collarbone and lung injury, and a cut on her right leg just below the knee. The witness testified to intense 'pain from the fractured collarbone while in the hospital, and she said the brace, which had to be worn continually, was most uncomfortable and did not help the pain; that the brace irritated a mole on her back, an infection developing. The brace was removed in order for the infection to clear and it was necessary to have the mole removed. Mrs. Meredith wore this brace during September, October, and most of November. She said that after leaving the hospital and going to her mother’s home, she was only able to get up to go to the bathroom and to the table to eat. Mrs. Meredith related the difficulties with the fractured clavical, stating:

“The pain was terrible, especially riding from Pine Bluff home. When I got home, the only time I got up was to go to the bathroom and to the table to eat. I had been home about a week I guess and I got up and I went to the table and the thing—the bone moved or something and I just got sick and had to lay back down. Then that night I was getting up and it moved or done something again and it was just like it broke all over again. I screamed and it just like to have never quit hurting. It was just like it had happened all over again. I couldn’t get up or lay down or anything. I could sit down and start to lay down, but then I’d have to have support on my head to get back down. When I would get up, somebody would have to hold me because I would just be so dizzy I couldn’t stand up. When I would lay back down, it would feel just like I was falling off the bed.”

During this time, Mrs. Meredith also had emotional problems:

“I was nervous anyway, before the wreck. But then when I got there to Mother’s, I don’t know, I just cried and cried and cried and you could ask me why, I didn’t know why I was crying. I was embarrassed to death, because I couldn’t do anything for myself. I couldn’t even go to the bathroom. I couldn’t do anything. I couldn’t get in or out of the bathtub myself.”

She lost twenty-five pounds after the accident, and when asked her condition at the time of the trial, stated:

“I just don’t have any energy. Just doing my normal housework, I’m tired before I get half through. I’m irritable, because I don’t feel good.”

Of course, during the three months period when she was confined, Mrs. Meredith was unable to look after her child in any way. She testified that her left arm was still weak, and that she had trouble in lifting the baby with that arm.

Mrs. Lilliam Hagood, the mother of Mrs. Meredith, testified that she stayed in the hospital with her daughter for six days, and that on leaving the hospital, the daughter was taken to the mother’s home. She said that her daughter was not able to do anything without help, and could not even undress. Mrs. Hagood described the brace as being in the shape of a “figure eight and it was put around her and fastened in the back with some kind of a buckle”. The purpose of the brace was to pull and straighten the shoulder, and it was necessary that Mrs. Meredith wear it at all times. Her left arm was constantly in a sling, and, according to the witness, Mrs. Meredith could do nothing either for herself or the baby. The testimony of Mrs. Meredith and Mrs. Hagood, relative to the injuries and suffering of the wife, was verified by that of Mr. Meredith.

One of the most difficult questions to answer in tort litigation is whether or not a judgment is excessive. This is partly true because there is really no way to measure pain and suffering; actually, some people are more prone to pain than others, and some cannot adjust to it as well as others. We said flatly in Coca-Cola Bottling Co. of Ark. v. Adcox, 189 Ark. 610, 74 S. W. 2d 771, “There is no rule by which we can measure damages for pain and suffering”. Further:

“Plaintiff is not limited in his recovery to specific pecuniary losses as to which there is direct proof, and it is obvious that certain of the results of a personal injury are insusceptible of pecuniary admeasurement, from which it follows that in this class of cases the amount of the award rests largely within the discretion of the jury, the exercise of which must be governed by the circumstances and be based on the evidence adduced, the controlling principle being that of securing to plaintiff a reasonable compensation for the injury which he has sustained. 17 C. J., 869, et seq.”

Likewise, in Turchi v. Shepherd, 230 Ark. 899, 327 S. W. 2d 553 (1959), we said:

“A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value.”

If a dollar no longer had its prior value in 1959, obviously we may use our common knowledge, and courts may take judicial notice of the fact, that the dollar has considerable less purchasing power today than it did even in 1959. See Missouri Pacific Railroad Co. v. Elvins, 176 Ark. 737, 4 S. W. 2d 528. When all of the circumstances are considered, we cannot agree that this judgment was excessive.

The amount of $5,000 awarded to Mr. Meredith is also questioned. Mr. Meredith is an employee at the paper mill in Crossett, and is also an ordained minister, having pastored a church in Newport for over a year. Meredith received a bad bruise on his forearm, and was unable for some time to move the hand because of the bruise and swelling. Dr. Nash took x-rays and a splint was placed on it. He was not able to work during the week and sustained lost wages of $96.64. His x-ray services amounted to $36.95; there was also a bill for $46.00 from the Children’s Clinic for the care of the daughter. The hospital bill for Mrs. Meredith was $196.75, and laboratory and radiology bills amounted to $121.25. Dr. Nash charged $100.00 for his services to Meredith and his wife and Dr. Salb charged $83.00. The damage to the automobile was covered by insurance except for a $50.00 deductible. Since Mrs. Meredith was unable to care for herself, arrangements were made with her parents for Meredith to pay them the sum of $50.00 per week during the three months period that they lived with her parents; this amount, of course, took care of their meals during this three months period. The testimony revealed rather a close relationship between Meredith and his wife. The two always went together when he would preach a sermon at some church to which he had been invited; she helpfully criticized his sermons and made suggestions for improvement. They read and studied the Bible together, enjoyed going to the park with the baby, and hunted and fished together. Of course, these pleasures had to be held in abeyance during the period of time that Mrs. Meredith was being looked after by her mother. In other words, the normal husband-wife relationship did not exist during that time. In effect, what was said relative to the award given Mrs. Meredith, can also be made applicable to the award given to her husband, and though it was liberal, we cannot say that it was in such an amount as to demonstrate prejudice and passion on the part of the jury.

We do agree that the award to the child was somewhat excessive, principally because any sort of finding of a serious or lengthy injury would had to have been based on speculation. Dr. Townsend, a Pine Bluff pediatrician, prepared a report which was read into evidence, as follows:

“I saw this seven month old infant for the first time on September 1, 1969. She was involved in an automobile accident and was seen by me in the Jefferson Hospital emergency room. Examination revealed abrasions of her left nostril and face. She was admitted for observation and did quite well. X-rays failed to reveal any fracture. She was discharged on September 4, 1969, to be followed by her physician in Crossett.”

It developed that another report had been submitted by Dr. Townsend and it too was read into evidence as follows:

“This seven month old infant was involved in an automobile accident on September 1, 1969. She was seen in the emergency room at which time it was noted that she had an abrasion and contusion to her left face. There was some evidence of bruise on the left foot. Other than this the infant was completely normal. It was felt that due to the fact that the Mother was injured and admitted, it was best to admit the infant for observation. The infant did have a URI on admission and developed a low grade fever. Procaine penicillin was given for this. Skull x-rays and chest x-rays and laboratory work were all within normal limits. It was felt that the only thing that this infant sustained out of the accident was a bruise and abrasion of the left face. She was discharged on September 4, 1969, to be followed at Crossett by her local physician.”

The child was never again treated by a physician as a result of the accident, and the testimony offered reflected only that the child cried, mainly because her mother was unable to pick her up. The grandmother testified “I just can’t satisfy her, it took her own mother to do that”. Mrs. Hogood stated that the child would awaken in the middle of the night “screaming”, which she (Mrs. Hagood) interpreted as caused by fear. Of course, many babies awaken during the night—and the day—crying, and this, in itself, establishes very little. It is quite apparent from the report of Dr. Townsend, and the fact that no further medical services were necessary, that the crying was not caused by physical injury. And the child would certainly seem to be too young (at seven months) for it to be said that emotional, or psychiatric, damage had occurred. At any rate, there was no medical testimony to that effect. We are of the view that $1,500.00 would constitute a generous award.

In accordance with what has been said, the judgments in favor of Frances L. Meredith and Joel C. Meredith are affirmed; the judgment in favor of Lilliam Denise Meredith is affirmed on condition that remittitur is entered as indicated within seventeen calendar days; otherwise, this last judgment will be reversed and the case remanded for a new trial.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

dissenting. I dissent from the remittitur. I can agree that the award is liberal, but I cannot arrive at the conclusion that the lack of medical testimony as to pain and suffering or emotional shock left the jury to speculation only in fixing damages. If this be the case, then most verdicts for this element of damages are based upon speculation, for there are few objective symptoms of this result from an injury and the “pain barrier” of individuals differs as much as any personality trait or element of physical makeup can possibly vary. A seven-month-old baby has only one means of evidencing pain and suffering and emotional upset. That is by crying. She could not communicate internal pain to her physician or to a jury as an adult might. All of us know that many internal injuries are undetected until the injured person can describe pain and its location to a physician. This baby was entitled to be compensated for the nature, extent and duration of her injury, and any pain, suffering or mental anguish experienced and reasonably certain to be experienced in the future, and not just for visible results of her injury, putting aside the question whether a child should have a cause of action against a third person negligently injuring his parent. A perfectly normal baby, who had previously cried little, would for six or eight weeks awaken screaming, jerking all over and crying hysterically, first in the hospital, later in her grandmother’s home and then after she was returned to her own home. Crying spells lasted as long as 30 minutes at a time. She was apparently left with a fear of being alone. On the day of the trial she still required the constant attendance of one or the other of her parents. Her grandmother testified that the baby was sick and that she sometimes called the doctor at night about the child’s illness. She admitted that not all of the sickness was directly related to the automobile accident. She told of one occasion in the hospital shortly after the child’s injury when the pediatrician gave the baby two shots to quiet her.

I would affirm the judgment in favor of all the appellees.

       ‘Well, this is a lung being punctured and air getting in between the lung and the chest wall decreasing the ability of the lung to function. As he said, it was about ten per cent expanded the last time he saw her, well, that would give her probably about a fifty per cent less function of lung on that side because as it decreases toward the cone, of course, the less the vital capacity. So, she would have a fifty per cent vital capacity, probably, with the ten per cent collapse on the left side.”

       See arguments, pro and con, Annot., 59 A. L. R. 2d 454 (1958). We have held that a minor is entitled to recover compensation for the loss of parental love, care, supervision and training in wrongful death actions. This loss is considered to be a “pecuniary injury” under the wrongful death statute. See Bridges v. Stephens, 238 Ark. 801, 384 S. W. 2d 490.


text:
    Ernest GLOVER and Thelma E. Glover v. Fred R. STOTTS
    5-5569
    466 S. W. 2d 932
    Opinion delivered May 17, 1971

      H. M. Ellis ir Frank Lady, for appellants.

      Barrett, Wheatley, Smith ir Deacon, for appellee.
   Carleton Harris, Chief Justice.

Appellants, Ernest Glover and Thelma E. Glover, instituted suit against appellee, Fred R. Stotts, seeking damages for personal injuries and property damage, allegedly sustained in an automobile accident occurring at an uncontrolled intersection of two county roads. Stotts filed a cross-complaint for damage to his pick-up truck. On trial, the court instructed as to comparative negligence, but no interrogatories were submitted, and a general verdict was returned, the jury finding, “We, the jury, find for the plaintiffs, Ernest Glover and Thelma Glover, on the counterclaim of the defendant, Fred Stotts, and find in favor of Fred Stotts on the complaint of plaintiffs, Ernest Glover and Thelma Glover”.

It is thus not clear whether the jury found both parties equally negligent, or whether they found no negligence on the part of either, the jury having been instructed that in either of these instances, there could be no recovery. From the judgment entered denying recovery to either party, appellants bring this appeal.

In oral argument, counsel for appellants first contended that his clients were free from negligence, but subsequently admitted that he did not ask for a directed verdict, and, in fact, he stated that he did not think that he was entitled to a directed verdict; this would seem to indicate that appellant’s contention is simply that Stotts was much more negligent than Mrs. Glover.

In determining this litigation, it is not necessary to set out all of the evidence that was offered; it is only necessary that it be shown that there was evidence from which the jury could have found Mrs. Glover, driver of appellants’ vehicle, guilty of some degree of negligence. The proof reflects that Mrs. Glover was driving east on County Road 84 and came to the point where this road intersects County Road 1275, the location being known as Catfish Lane Road. According to her testimony, this appellant intended to turn left for the purpose of traveling to Lake City, and she had used the road many times previously. Mrs. Glover stated that to the left of the intersection, there was a considerable growth of underbrush that interfered with one’s vision, and she could not see to the left until pulling out into Road 1275. Appellant testified that she first stopped at the intersection, and, as stated, could not see to the left toward Lake City due to the brush and weeds, but did not hear any traffic coming, and accordingly shifted into low gear and eased forward three or four feet. She said that she then observed Stott’s vehicle approaching from the north, some 75 or 100 feet away, traveling at 50 or more miles per hour. “He was flying.” Upon observing the approaching car, she slammed on her brakes, and her vehicle was stopped at the time she was struck. Mrs. Glover testified that on some previous trips, she had sounded her horn when reaching this blind spot, and before entering into the intersection, though she did not do so on this particular occasion. Testimony was given by a police officer indicating that she was nearer to seven or eight feet into the north-south country road than the three or four feet to which she had testified, and the officer stated that the position of her car denoted that she was in the act of making a left turn at the time of the collision.

Actually, we need not discuss further any of the evidence, for it is apparent that the jury could have found that Mrs. Glover was negligent in proceeding “blindly” into the intersection. Certainly, she was not entitled to a directed verdict, even had she made such a motion. In Spink v. Mourton, 235 Ark. 919, 362 S. W. 2d 665, this court said:

“Owing to the fact that the plaintiff has the burden of proof— that is, the burden of persuading the jury that he is entitled to win the case—a directed verdict for the plaintiff is a rarity. As we said in Woodmen of the World Life Ins. Soc. v. Reese, 206 Ark. 530, 176 S. W. 2d 708: ‘A verdict upon an issue of fact should not be directed in favor of the party who has the burden of proof with respect thereto, unless such fact is admitted, or is established by the undisputed testimony of one or more disinterested witnesses and different minds cannot reasonably draw different conclusions from such testimony.’

The problem is especially acute in negligence cases, for the standard of care—that of a reasonably careful person—is apt in almost every case to become an issue of fact for the jury. In one of the few cases that have discussed this exact point the Court of Appeals for our circuit had this to say: ‘Negligence and proximate cause will become transformed from questions of fact into questions of law rather on probative deficiency than on probative abundance. Thus, no matter how strong the evidence of a party, who has the burden of establishing negligence and proximate cause as facts, may comparatively seem to be, he is not entitled to have those facts declared to have reality as a matter of law, unless there is utterly no rational basis in the situation, testimonially, circumstantially, or inferentially, for a jury to believe otherwise. (Citing case)”

Though there was evidence from which the jury could have found that Stotts was not keeping a proper lookout, and was perhaps driving too fast, and though we might feel that appellee was the more negligent of the two parties, these were fact questions, and as such, were questions for jury determination. We are not permitted to determine percentages of negligence. On this appeal, there is no relief that this court could grant other than to find there was no substantial evidence to support the jury verdict; from what has been said, it is obvious that we could not make such a determination.

Affirmed.

       The original complaint reflected that Mr. Glover was the owner of the truck, and he sought recovery for property damage. Subsequently, the pleadings were amended to reflect that he was a joint owner with Mrs. Glover.


author: George Rose Smith, Justice.

text:
    CONTINENTAL INSURANCE COMPANIES v. ESTATE OF ANDREW DAVID ROWAN, JR., a Minor
    5-5571
    466 S. W. 2d 942
    Opinion delivered May 17, 1971

      Dickey, Dickey ir Drake, for appellant.

      George Howard, Jr., for appellee.
   George Rose Smith, Justice.

On June 6, 1968, Florida Rowan was appointed guardian of the estate of her minor son, Andrew David Rowan, Jr. Mrs. Rowan’s $9,000 guardian’s bond was signed by the appellant, Continental Insurance Companies, as surety. Thereafter the probate court, on its motion, removed Mrs. Rowan as guardian, because of her failure to file an inventory of the assets of the estate. The court appointed L. E. Henson as guardian in succession.

In April, 1970, the guardian in succession filed a motion for judgment against Continental in the amount of whatever funds Mrs. Rowan had received as guardian and had failed to report or account for. Continental resisted that motion on the ground that the principal’s liability should first be determined before the entry of any judgment against the surety. Thereafter, at a hearing at which Mrs. Rowan appeared merely as a witness and not as a party, the court found that Mrs. Rowan had collected $2,731.40 as the proceeds of a life insurance policy upon the life of the ward’s father, of which the ward was the beneficiary. The court further found that Mrs. Rowan should have deposited the money in a guardianship account and should not have expended it without a court order. Upon those findings the court entered judgment against the surety for $2,731.40. In appealing from that order Continental renews its contention that the guardian’s primary liability should have been determined before the entry of any judgment against the surety.

We are of the opinion that Continental’s position is well taken. Apparently Mrs. Rowan had collected and expended the life insurance proceeds before she was removed by the court upon its own motion. For some time the court was unable to find out just what assets the guardian had received or what disposition she had made of them. Finally the court, on June 12, 1970, entered an order directing Mrs. Rowan “to appear as a witness” at a hearing set for June 17.

At that hearing the guardian in succession and the surety appeared through their attorneys. Mrs. Rowan, without counsel, appeared as a witness and explained that she had collected the insurance money and has used it to discharge liens against the house in which she and her ward were living and against certain other real property in which Mrs. Rowan claimed some interest. Whether any or all of the expenditures benefited the ward is a point about which the testimony is not conclusive and upon which the probate judge made no finding. The court merely found that the money had not been deposited in a guardianship account and had been spent without a court order. Upon that finding the court entered judgment for $2,731.40 against the surety only.

Before the adoption of the Probate Code it was our rule that “an administrator in succession must proceed in the probate court against the former executor or administrator for a settlement or accounting and an order to pay over the sum found due to him' before he can sue the bondsmen of the former executor or administrator.” Statham v. Brooke, 140 Ark. 187, 215 S. W. 581 (1919). That rule is sound, for the surety’s liability is derivative and ordinarily does not exceed that of the principal. Fausett Builders v. Globe Indemnity Co., 220 Ark. 301, 247 S. W. 2d 469 (1952). The Probate Code recognizes the court’s authority to proceed against the “obligors” in the bond, Ark. Stat. Ann. § 62-2221 (Supp. 1969), but we find nothing in the Code that changes the orderly and logical procedure by which the guardian’s primary liability is to be ascertained before the entry of judgment against the surety. Consequently we adhere to our former cases upon the point.

Reversed and remanded for further proceedings.


author: Lyle Brown, Justice.

text:
    THE FIRST PYRAMID LIFE INS. CO. OF AMERICA v. Mary Holt THORNTON
    5-5574
    467 S. W. 2d 381
    Opinion delivered May 17, 1971
    [Rehearing denied June 21, 1971.]

      W. B. Brady, for appellant.

      Allen, Young ir Bogard, for appellee.
   Lyle Brown, Justice.

Appellant issued a group life insurance policy in favor of the employees of Associated Grocers of Arkansas. Appellee’s husband was an insured under the policy and appellee was the beneficiary. The policy provided for an $8,000 ordinary life benefit and an additional $8,000 accidental death benefit. The insured, who was an accountant for Associated Wholesale Grocers of Arkansas, fell from the steps of his place of employment while on his way home after work. The injuries sustained proved fatal. Appellant paid the standard $8,000 ordinary life benefit but refused to pay the accidental death benefit by reason of the following policy exclusion:

Limitations Applicable to Accidental Death and Dismemberment Insurance. Benefits shall not be payable for any loss to which a contributing cause is: . . . (f) injury arising out of or in the course of any employment for wage or profit.

Appellee filed suit for the accidental death benefit. Appellant answered and appellee filed a motion for summary judgment. Both parties submitted affidavits and attached letters for the trial court’s consideration. (An affidavit and attached letter from the workmen’s compensation carrier of Associated Wholesale Grocers of Arkansas indicated that the carrier had voluntarily paid compensation to appellee for the death of her husband.) The trial court granted the motion for summary judgment and awarded appellee the $8,000 accidental death benefit together with 12% statutory penalty and attorney’s fees.

It should be noted at the outset that appellant does not contend that this is not a proper case for summary judgment. “We have many times held that points not argued in the brief are waived.” Gordon v. Street Imp. Dist. No. 1 of Gillett, 242 Ark. 599, 414 S. W. 2d 628 (1967).

Appellant argues first that the insured’s death arose out of or in the course of his employment for wages and that the accidental death benefit is therefore excluded under the terms of the policy, second that appellee is estopped by her own and her attorney’s actions (with respect to workmen’s compensation) from denying that the insured died from an injury arising out of or in the course of his employment for wages, and third that the policy exclusion in question is not ambiguous. Each of appellant’s points for reversal is bottomed on the premise that the life insurance policy was provided to supplement workmen’s compensation and therefore we should apply our workmen’s compensation decisions in interpreting the exclusionary clause. We do not take that view of the life policy. The exclusion does not specifically state that an accidental death which is covered by workmen’s compensation is excluded, which could easily have been done. Neither does the exclusion use the language of the workmen’s compensation statute. That statute makes compensable an accidental death which arises out of and in the course of employment while the exclusion in question excludes coverage on an accidental death which either arises out of or in the course of employment. Obviously, a situation might occur in which the employee might meet only one of the requirements needed to come under workmen’s compensation and yet because he met that one requirement he would be excluded from coverage under the accidental death policy exclusion in question. Because the exclusion neither specifically states that it is dependent on workmen’s compensation coverage nor uses the language of the workmen’s compensation statute, we must view the exclusion in question as we view other exclusions to coverage provided in insurance contracts. Brinkmann v. Liberty Mutual Fire Ins. Co., 403 P. 2d 136 (Calif. 1965).

The standards of interpretation require us to strictly interpret the exclusion to the coverage and resolve reasonable doubts in favor of the insured who had no part in the preparation of the contract. Benham v. American Central Life Ins. Co., 140 Ark. 612, 217 S. W. 462 -(1919). “Liability for accidental death will not be destroyed by the language of an exception unless clear and free from reasonable doubt, and an ambiguity contained in an exception must be resolved against the insurer.” 13 Appleman, Insurance Law and Practice, § 7427 (1943). “A condition tending to defeat a policy must be expressed or so clearly implied that it cannot be misconstrued.” 1 Couch on Insurance, § 15:92 (2d ed. 1959).

Applying the recited standards of interpretation to the exclusion in question, we find that the trial court was correct in finding that the insured was covered by the policy and not excluded by the attempted limitation to the principal accidental death coverage. When we strictly construe exclusion (f), we believe that it is a reasonable interpretation to put upon the language that the insured’s injury and subsequent death did not arise out of or in the course of any employment for wage or profit. When the injury occurred the insured had finished his work for the day. He was on the steps of his place of employment and on his way to the parking lot to drive his automobile home. Under those undisputed facts, the trial court was correct in finding that the injury did not arise out of the employment and was not in the course of his employment for wages or profit.

The question as to whether appellee was estopped by accepting the workmen’s compensation benefits is not involved in light of our view of the exclusion in question.

Affirmed.


author: John A. Fogleman, Justice.

text:
    William F. SAMPLE v. Lena Mae SAMPLE
    5-5542
    466 S. W. 2d 935
    Opinion delivered May 17, 1971
    C. E. Blackburn, for appellant.

      Lightle Jr Tedder, for appellee.
   John A. Fogleman, Justice.

The parties to this appeal separated after 27 years of marriage. They had two children at home—a daughter, Sandra, 18 years of age at the time of the trial, and a son, Billy, 20 years of age at that time. Both of the children were attending college at the time of the separation and the trial and residing at the family home on an 80-acre farm, which was held by the parties as a tenancy by the entirety.

The wife, appellee herein, sued for an absolute divorce on the ground of indignities to the person. By amendment to her original complaint, she prayed, in the alternative, for separate maintenance. At the time of the final hearing, she abandoned her prayer for absolute divorce, and a decree was entered granting her $350 per month support money, sole possession of the farm and the residence that contained all personalty, and an attorney’s fee of $100 and requiring the husband to pay all debts incurred by the parties up to the date of the separation in the amount of $7,096.95. Appellee’s complaint had asked that appellant be required to account for the proceeds of cattle sold by him. The final decree relieved him of making an accounting, and allowed him to retain the net proceeds of this sale.

The first point relied upon by appellant for reversal is his contention that appellee should not have been granted relief because she did not come into court with clean hands. He argues that her conduct in abandoning her prayer for absolute divorce and seeking separate maintenance constituted a failure to do equity because it resulted in her being permitted to retain the home and farm in her sole possession, along with the personalty of the parties, rendering it impossible for die court to order a sale of the realty for the discharge of the joint obligations of the parties. Appellant makes this argument in spite of the fact that he filed no counterclaim, failed to answer or otherwise respond to the amendment to appellee’s complaint, and made no objection when she abandoned her claim for absolute divorce and proceeded on her suit for separate maintenance. We do not understand appellant’s argument in this respect, and find no basis for saying that appellee should not have been granted relief because she came into court with unclean hands or because she failed to do equity. The doctrine of unclean hands means no more than that one, who has defrauded his adversary in the subject matter of the action, will not be heard to assert a right in equity. Batesville Truck Line v. Martin, 219 Ark. 603, 243 S. W. 2d 729. The practical meaning of the maxim that “he who seeks equity must do equity” is that, whatever the nature of the remedy sought, the court will not give equitable relief to one seeking it unless he will admit and provide for all of the equitable rights, claims and demands of his adversary growing out of, or necessarily involved in, the subject matter of the controversy. McMillan v. Brookfield, 150 Ark. 518, 234 S. W. 621. Appellant also asserts that the court abused its discretion in the award of alimony, division of personalty and award of possession of realty. Appellant is totally disabled, and received $726 per month from social security, the Veterans’ Administration and disability insurance. Each of the two children receives an additional $126 per month from social security and the Veterans’ Administration because of their father’s disability. Both children were in the first year of college. Appellee testified that appellant sold 13 head of cattle for $1,000 on the day of the separation. She claimed an interest in the cattle, and testified that they were worth more than twice as much as the purchase price he received. There is an FHA loan of $5,200 on the farm, payable in installments of $40 a month, which Mrs. Sample claims to have been making in the past. She testified that she had worked during most of their married life and received exceptionally high earnings, which she said she applied to payment of bills and the family living cost. Each of the parties now has one of the two family automobiles. Appellant testified that the parties owned their furniture, had four horses, 10 or 12 saddles and equipment, all valued at a minimum of $700, in addition to farm and garden tools, a tractor and wagon, which he valued at $500. He valued sporting goods equipment at $550, tools at $300, antique glassware at $1,000. He also valued a demolished Dodge truck at $300, and testified that there were 500 bales of hay in the barn. Mrs. Sample testified that appellant’s income was nontaxable. She listed monthly financial needs of $600. She stated that the minimum she could live on was between $350 and $400. She has income of $60 per month as pay for caring for two houses on Eden Isle. Although she testified that she was physically unable to work, it seems that her children assist her in this employment. Mrs. Sample testified that she had undergone chronic mastitis surgery on her breast and was under the care of the University Medical Center where she received outpatient treatment for which she paid $7.50 per call. She was scheduled to return for a checkup in May, 1971. She had also consulted Dr. Mc-Clanahan of Heber Springs, and had seen four other doctors.

Dr. McClanahan examined Mrs. Sample on October 16, 1969, and found a tumor of the right breast, a rupture and a tumor of the uterus. He referred her to the University of Arkansas Medical Center at her request. He examined her again on June 6, 1970, and found the same condition. He stated that Mrs. Sample had a fibroma or rupture of the birth canal, technically called a cystocele and rectocele, which he said would cause discomfort in the pelvis and difficulty in controlling urination and bowel movements. Dr. Mc-Clanahan said this was a condition that would develop over a period of years. Mr. Sample testified that Mrs. Sample had had her same physical condition for 23 years of their married life.

Sample claims that he cannot live on the balance of his income. He pays $80 rent for an apartment and $85 as a monthly car payment. He is unable to prepare his meals and eats out a great deal of the time. He stated that he did not claim any of the property to be wholly his except for six guns, various hand tools, some personal things and 14 liquor bottles. He testified that the residence is in need of maintenance and upkeep, and the barn is in bad condition. Mrs. Sample had been allowed $250 per month temporary alimony. She, her daughter and Mr. Sample’s mother all testified that this amount proved inadequate and that Mrs. Sample had to borrow money to pay living expenses and even then some bills went unpaid. On the other hand, Sample testified that appellee was extravagant and indulged her children’s wants extravagantly.

In view of the testimony as to appellee’s physical condition, her needs and the necessity for maintaining a home for the children of the parties while they are attending school, together with evidence as to Mrs. Sample’s contributions to the acquisition of property by the parties, the absence of any testimony as to income to be anticipated from the farm, one-half of which is woodland, and admitted needs for maintenance on the residence and barn, we are unable to say that the chancellor abused his discretion or that the seemingly liberal allowances made were excessive under existing conditions.

The decree is affirmed.


author: J. Fred Jones, Justice.

text:
    Bob MOSLEY v. G. M. McDAVID et ux
    5-5565
    466 S. W. 2d 922
    Opinion delivered May 17, 1971

      Don Gillaspie, for appellant.
    /. G. Ragsdale, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Bob Mosley from an order decreed by the Union County Chancery Court restraining him from constructing a proposed building on property he leased from G. M. McDavid and wife; and requiring Mosley to restore a metal canopy which he had removed in preparation for the erection of the proposed building.

On the 16th day of October, 1969, Mr. and Mrs. McDavid entered into a written lease agreement with Mosley under which they let to Mosley a plot of ground approximately 80 x 200 feet for a term of five years beginning on November 1, 1969, with option of renewal for two additional five year terms. This lease contained the following paragraphs:

“4. Lessee has the right, at his sole cost and expense, to erect a building on the above described property for his use as an office. At the expiration of this lease, or any renewal thereof, Lessee shall have the right to remove said building from the premises described in this lease.
5. Lessee agrees that at the expiration of the primary term of this lease, or any extension or renewal thereof, he will return to Lessor the land and the building now located thereon, which is the subject of this lease, in as good condition as it now is, the usual wear and tear excepted.
Lessee agrees that he will not commit waste, nor permit waste to be done to or upon the aforesaid property or premises; that he will not conduct nor permit to be conducted any beer or liquor business thereon; that he will not permit the sale or repair of televisions or household appliances thereon, nor will Lessee operate or permit to be operated or to be located thereon any structure or activity which will constitute a public nuisance; that he will keep said property and the premises about the same in a clean, orderly and sanitary condition; that he will not permit trash or debris of any nature to collect or accumulate in and about said premises, and will, at all times, keep the same in an orderly manner. The parties hereto further mutually agree that Lessee shall not have the right to sublet the premises or any portion thereof at any time to any third party without the consent of Lessor. Lessor agrees that his consent to subletting will not be unreasonably withheld; provided, however, that such assignment or subletting shall not in any way relieve Lessee of any responsibility or liability pursuant to the terms of this agreement.”

Prior to the lease, McDavid had used the premises in connection with a Buick automobile agency, and a metal building, now under lease to other parties, had been constructed on one corner of the lot adjacent to that portion leased to Mosley. The area leased to Mosley was surfaced with asphalt and had a metal canopy, or carport, constructed on galvanized steel posts set in concrete beneath the asphalt surface. The canopy had been built and previously used in connection with the Buick agency. It was approximately 20 feet wide and extended approximately 80 feet along the front, then approximately 40 feet into the depth of the leased property. The canopy was the only structure erected on the area leased to Mosley and constituted “the building now located thereon” as referred to in paragraph five of the lease.

Mosley was in the used automobile business when the lease was entered into. He subsequently acquired a franchise, or dealership, for new Toyota automobiles and under his franchise agreement, he was required to provide a 20 x 45 foot showroom with a glass front for the display of new Toyota automobiles. Mosley advised McDavid of the franchise and the building requirements, and he sought McDavid’s permission to erect the required building on the leased premises. McDavid advised Mosley that he did not want a permanent structure of this nature built on the leased premises. Relying on paragraph four of his lease, Mosley proceeded oward the construction of a steel building to be supported on eight concrete piers two feet square and sunk 16 inches into the ground. The floor of the building was to be a concrete slab four inches thick, 20 feet wide .and 45 feet long, and was to be poured on top of the asphalt surface of the lot.

In order to erect the building on the leased area in the position he wanted it, Mosley found it necessary to remove approximately 40 feet of the metal canopy. He accomplished this by cutting the steel posts at their base with an acetylene torch, and he had removed this portion of the canopy to the rear of the leased premises when Mr. McDavid stopped the work by a temporary restraining order and filed his petition to make it permanent. In his answer to the petition for a restraining order, Mr. Mosley alleged that the building he proposed to construct was for use as an office building as permitted in his lease agreement, and that he had been damaged because of delay in construction by reason of the temporary restraining order. He prayed judgment against McDavid for $1,500. McDavid countered by an allegation of waste committed in connection with removal of the canopy and prayed judgment for $2,500.

After reciting his findings as above set out, the chancellor found that the cutting of the posts and removal of the decking and beams supporting the canopy constituted waste, and that Mosley should be permanently enjoined from building the office, showroom and salesroom, on that portion of the lot where the canopy had been removed, that he should be ordered to replace the canopy and to restore the premises to the condition they were in prior to the removal of the canopy. The chancellor further found that a small portable building which Mosley had placed on the lot, and had been using as an office, did not amount to erection of an office building as contemplated in the lease, and that Mosley, under the lease, had a right to erect a building for an office. The chancellor then decreed, in part, as follows:

“Defendant is hereby permanently enjoined from constructing the building as depicted by Exhibits 2, 3 and 4 on the leased premises, defendant shall restore the property to the same condition it was prior to the removal of the canopy, that defendant has the right under the lease to erect a building on the property for use as an office, defendant shall pay all costs.”

On appeal to this court Mosley seeks reversal on the following point:

"The order and findings of the chancellor are contrary to the preponderance of the evidence and to the law.”

Simple contract law is the only law involved in this case. The chancellor’s duty was to determine the rights of the parties under the terms of their agreement and while we try cases de novo on appeals from chancery, it is our duty and practice to affirm the chancellor’s decree if it is not against the preponderance of the evidence.

Mr. McDavid contends that Mosley leased the premises for a used car lot and was only entitled to erect a small office on the premises, such as is usually found on used car lots. It is his contention that the parties contemplated such office building that could be erected and removed without damage to the leasehold.

It is Mosley’s contention that the parties contemplated such office building as he might desire and find necessary in connection with any unrestricted business he might desire to conduct on the lot, so long as he surrendered the property at the end of the lease term in as good condition as when the lease agreement was entered into. Mosley contends that a showroom is included within the dictionary definition of "office” and as generally used in connection with an automobile agency.

Mr. McDavid supported his contention with evidence to the effect that Mosley was in the used car business when the lease was entered into and it was within the contemplation of the parties that the office referred to in the lease was to be a small office to be used in connection with the used car business; that the canopy permanently constructed on the premises was intended to remain as it was and available to Mosley in connection with his used car business. McDavid also submitted evidence to the effect that he had gone to considerable expense in paving the entire leased lot with asphalt; that he had considerable difficulty with underground water seepage and had gone to considerable expense in sealing the asphalt against water seepage from the ground underneath the asphalt; that the erection of the proposed building would disturb the seal placed on the asphalt and would result in additional damage from seepage. He also produced evidence tending to show that the metal canopy could not be removed and replaced in its original place and condition.

The evidence submitted by Mosley tended to show that the canopy could be replaced at the termination of the lease in as good condition as it was prior to removal; that the concrete slab for the building could be broken up and removed without damage to the asphalt surface; that the piers on which the building was to rest could be removed from the asphalt surface and ground; that the holes could be filled and the surface repaired in as good condition as at the time of the lease. He contended that the building he proposed to construct only constituted an “office building” within the meaning of the automobile industry and within the meaning and terms of the lease agreement. He offered some evidence tending to prove that in the automobile industry a showroom and office are synonymous terms.

Mr. McDavid testified, in part, as follows:

“. . . some time prior to October 16, the date of the lease, Mr. Mosley came to me and talked to me about renting that part of the lot, 80 by 220, and I told him I was looking for a renter and he said he wanted to, he was in the used car business with his brother or on the same lot and he wanted to get a lot to handle his used cars and so after some conversation we agreed on the lease.”

Mr. McDavid testified that there had originally been a spring branch through the property and that he had previously had considerable trouble with potholes forming in the blacktop paving because of water coming up from the ground; that to eliminate this situation he had spent upward of $9,000 for new asphalt paving and about $3,000 for additional sealer to keep water from breaking up through the pavement. He says that the carport or awning consisted of metal beams on galvanized metal posts and covered with sheets of metal extending 80 feet across the front of the property with a wing extending back approximately 40 feet into the lot. Then Mr. McDavid continued:

“Mr. Mosley . . . told me ... ‘I am talking about taking a franchise for a car and I need a showroom,’ and he said, ‘What I planned is to show the cars under this carport.’ I said, ‘Now, Mr. Mosley, I don’t want that carport bothered because it’s a permanent structure and when you dig it out of the ground you’re going to have some trouble with water seepage.’ He said, ‘I will assure you we won’t do that, we will put this glass in there and won’t take up any of the posts, just frame in that part of the carport with glass.’ I said, ‘Well, that sounds like a funny construction but you go ahead with it but you are not to tear any of the carport nor the surface of the lot.”

Questions by the chancellor were answered by Mr. McDavid as follows:

“Q. Mr. McDavid, if I understood your testimony that you prepared the lease and then the Defendant came back and wanted permission to build a building, was that then added to the lease?
A. We rewrote the lease. I took that lease and destroyed it and wrote a new lease and added in a building in there and to me a building means one building.
Q. Did you all have any discussion as to what type of building he wanted and what it was to be used for?
A. Yes, sir, an office building only.
Q. What type office building?
A. He said he wanted it large enough where he could have a table and some chairs and his telephone and some filing cabinets.
Q. Now, does the lease specify for what purpose he was leasing it?
A. No, sir.
Q. Did you know the purpose he was leasing it for, although it wasn’t put in the lease?
A. I think at the time it was leased he had no idea of anything except used cars. I think this Toyota building came up considerably later.
Q. At the time you leased it to him, the carport, is that what you call the structure on the lot now?
A. Yes, sir.
Q. That was on there at the time he leased it?
A. Yes, sir.
Q. And had been there for a good many years?
A. Yes, sir.
Q. And was its primary purpose or why it was put there, what was the primary purpose?
A. Just to protect the cars in rainy weather and keep them out of the hot sun.
Q. Does it have any other purpose?
A. No, sir...”

Mr. Dan Shelton, a salesman for Ace Supply Company, testified that he was dealing with Mr. Mosely for the sale of the building which Mr. Mosley proposed to erect on the lot; that the building contemplated was a “20 by 45 steel building with a concrete foundation, showroom and office.” He testified that the building was designed to be built on a four inch thick concrete slab to be laid on the asphalt surface of the lot, and that eight piers for the support of the building would be set on concrete pads two feet square and about 16 inches deep, going through the asphalt surface and into the ground.

Mr. Bob Mosley testified, in part, as follows:

“. . . in October of 1969, I needed a lot to use for automobiles sales and I contacted Mr. McDavid about leasing this lot and we entered into an agreement.
Q. Did you have any general discussion about the use that was to be made of the property?
A. Yes, he leased the property for five years with two five year options and I told him that I would need to build me an office there to go with my business and I talked to him about that and I had Paul Jones come over and figure with me on building a concrete slab and brick building there where I later moved in a portable building. I had Mr. McDavid’s approval to do that and I decided after talking to Paul Jones to buy a Jimmy Goad building and move it there temporarily until I decided I would go ahead with the other type building.
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Q. Did he object to your building a building on the premises at that time?
A. No, the only thing he cautioned me about was this sealer that has been discussed, anywhere I had to break the asphalt, to be sure to get it sealed back good.
Q. That is what Mr. McDavid told you?
A. That is the way we discussed it.
Q. I gather Paul Jones did not build a building for you at that time?
A. No.
Q. Why?
A. I bought a portable building and moved it in there.
Q. That portable building, you can move it from place to place?
A. Yes.
Q. Is it connected at all to the real estate?
A. No, it’s on skids.
*.U. uz. •R» w
Q. And when yoú first thought about this thing you told him you wanted it for a used car place of business?
A. That is what we discussed. I also told him I might use it for something else.
# # #
A. ... when I was talking to Toyota, I called Mr. McDavid and told him what I planned to do and that I would have to have a little showroom and I planned to enclose part of that canopy the same size of the building, in order to qualify for the Toyota franchise. I felt it would be simpler to use the roof that was there, I had his full agreement on that. I had a builder come out and give me an estimate on doing this and the cost of doing this was too close to what a complete new building was. I decided to go ahead with a new building because the builder said the building wouldn’t look near as nice because this canopy had a lower roof than the normal type they were building, so then I decided, in the meantime I had already signed up with Toyota, thinking we were going through with this thing under the canopy, and after the builder came out and pointed this out to me I called Mr. McDavid back and told him what I needed to do then.”

Mr. Mosely testified that Mr. McDavid first prepared a lease which did not contain a provision for building an office, and that a second lease was prepared which did contain such provision and in this connection, under questions by the chancellor, Mr. Mosley testified as follows:

“Q. What business were you in then and why did you insist on a building?
A. I was in the automobile business and I had to have a building for an office.
Q. You were in the used car business and you don’t have showrooms in that business?
A. Normally, no.
Q. And what was your intention at that time and Mr. McDavid’s understanding of what kind of building you wanted to put on the property?
A. I originally planned to put a concrete slab and brick building on there.
Q. This was before the lease was signed or after?
A. Before.
Q. Did you all discuss as to where it would be located?
A. Yes, we discussed it would be located where my office building is now.”

We are of the opinion that the chancellor’s decree is not against the preponderance of the evidence and that it should be affirmed.

The decree is affirmed.


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    FIRST HERITAGE LIFE ASSURANCE CO. v. STATE of Arkansas, ex rel Allan W. HORNE, Insurance Commissioner, and In Re Examination Report, First Heritage Life Assurance Co.
    5-5528
    467 S. W. 2d 383
    Opinion delivered May 17, 1971
    [Rehearing denied June 21, 1971.]

      Allen, Young ér Bogard, for appellant.

      Kemp Jr Whitmore, for appellee.
   Frank Holt, Justice.

These two cases were consolidated for trial and on appeal. Appellant, First Heritage Life Assurance Company, initiated the first suit by an appeal to the circuit court from the failure of the appellee, Insurance Commissioner, to enter an order after the Commissioner’s hearing concerning appellant’s financial instability. A few days later, the second suit was instituted by the appellee directly in the circuit court alleging the delinquency or insolvency of the appellant and praying for a receivership and liquidation of appellant.

In 1969 an examination of appellant’s business affairs was authorized by the appellee. According to the Examination Report, appellant appeared to be insolvent by $553,859.87. In accordance with appellant’s request, appellee conducted a hearing to determine the accuracy of this Report. Thereafter, the appellant filed a notice of appeal from the Commissioner’s failure to enter an order based upon the hearing which he had conducted. A few days subsequent to the filing of appellant’s suit, the appellee Commissioner responded by filing its order based upon the hearing wherein he found appellant to have a capital impairment of $124,954.84 (after deducting $228,405.03 from the examiner’s figure); revoked its certificate of authority; and ordered that no further business be conducted. At the same time, the appellee instituted the delinquency proceeding (the second suit) by an original action in the circuit court. At a hearing based on the delinquency proceeding, both parties agreed to the consolidation of the cases and to making the transcript of the Commissioner’s hearing the record for both cases in order to avoid duplication of testimony. The court found that the Commissioner’s findings were supported by substantial evidence and, therefore, affirmed. The court then entered an order appointing the Commissioner as receiver of appellant for the purpose of liquidation. From this order favorable to the Commissioner in both cases comes this appeal.

Appellant first contends for reversal that the lower court erred in not ruling the order of the Commissioner to be untimely and void. Ark. Stat. Ann. § 66-2126 (Repl. 1966) provides that the Commissioner shall issue his order within thirty days after the formal hearing. The Commissioner did not issue the order within the thirty-day time period and appellant initiated suit in the circuit court under authority granted in § 66-2127. Under this statute appellant is accorded the right to appeal from the Commissioner’s failure to enter an order; however, this authority does not preclude the Commissioner from taking further action, it merely provides appellant a remedy when a delay exceeds the statutory time limitation. The statute also grants the circuit court authority to require the Commissioner to deposit with the court a complete transcript of all proceedings conducted before him in order that the court may review the findings of the Commissioner and affirm such findings if supported by substantial evidence. Appellant could not, by instituting its appeal for a failure of the Commissioner to act, preclude the Commissioner from entering a final order setting out his findings. The Commissioner’s order was not void and the lower court did not err in affirming such order.

Appellant does not assail the circuit court’s authority to uphold the Commissioner’s findings as to the Examination Report if the report is supported by substantial evidence. Appellant, however, asserts that , when the separate question of delinquency or insolvency was put in issue by the original action in the circuit court, the delinquency and receivership issue must be determined by a preponderance of the evidence. Appellant contends for reversal that the court applied the lesser quantum of proof, the substantial evidence rule, to the separate delinquency proceeding.

We first review the evidence to determine if there is substantial evidence to support the lower court’s affirmance of the Commissioner’s Order. Appellee Commissioner agrees that prior to January 1, 1968, appellant was not required by statute to maintain any reserve based on life insurance policies since it issues stipulated premium policies. He determined, however, that appellant had contractually obligated itself to maintain such reserves by issuing policies containing standard non-forfeiture tables and cash values with language stating that the reserves would be calculated according to certain agreed computations. Appellee Commissioner contends that appellant is contractually obligated to maintain life policy reserves in the amount of $101,-826.00 which constitute a liability. The accuracy of this amount is not controverted by appellant if it is required to maintain this item as a reserve. Appellant merely argues that it was not contractually obligated to maintain any reserves on life insurance policies issued prior to January 6, 1968 since it is a stipulated premium company. We do not agree. A copy of the insurance policy was submitted as an exhibit. A reading of the policy clearly shows that the Commissioner’s determination was supported by the policy which contains a table entitled “TABLE OF CASH, LOAN AND NON-FORFEITURE VALUES.” It further states:

"* * * and the legal reserves for this policy, shall be computed according to the Commissioner’s 1941 Standard Ordinary Table of Mortality with interest at the rate of three and one-half per cent per annum and on the assumption that deaths during any policy year occur at the end of such year, with the exception that the net single premiums used for the calculation of the periods of extended term insurance are based on rates of mortality equal to one hundred and thirty per cent (130%) of the said mortality table. The policy reserves shall be computed in accordance with the Commissioners Reserve Valuation Method.”

Also, the policy on its face states it is issued on a “legal reserve basis.” As previously indicated, appellant agrees that the figure of $101,826.00, representing life policy reserves, is correct if it was proper to allocate it as a liability. We think there is ample substantial evidence to support the Commissioner’s finding that this figure is properly a liability item.

Another significant item is $88,566.78 which was established as a claim reserve and allocated as a liability by the Commissioner. This sum represents expected future payments to policy holders based upon their disability claims. Each of the disability claims had been processed and approved for payment by appellant. In fact, payments had been made periodically by the appellant on these disability claims. This figure was determined by actuaries, one representing appellant and one the Commissioner, based upon disability tables. Their testimony appears uncontradicted. Appellant’s witness acknowledged that disability income claims are generally considered reserves by actuaries. We agree that substantial evidence supports classifying this item as a liability. Nor do we find the court erred in holding that substantial evidence supports the Commissioner’s finding that the sum of $12,155.57 is a liability item. This is a reserve for disability claims in controversy or in progress. We are of the same view with reference to $4,188.16 being classified as a liability item. This represents prepaid premiums on several policies.

Appellant also asserts the court erroneously affirmed the Commissioner’s exclusion of certain assets claimed by appellant. It is contended that the court should have restored $5,657.25 to the value of appellant’s real estate; that $2,493.00 additional should be allowed on the value of appellant’s common stock; and that $1,790.34, representing accrued interest on certificates of bank deposits, was improperly disallowed as an asset. Even if appellant be correct and these amounts be restored as assets, we cannot say that the court erred in holding that the appellee Commissioner’s finding of capital impairment is not supported by substantial evidence.

Now we turn to appellant’s assertion that the court erred in the insolvency or delinquency proceeding (the original action filed in the circuit court) by failing to make that determination by a preponderance of the evidence. It is true that in an action originally initiated in the circuit court, the court’s determination of a fact issue must be based upon a preponderance of the evidence. In oral argument appellee Commissioner agreed as to the correctness of this rule. An insolvency proceeding brought by a Commissioner is no exception to the above stated rule. In this instance, however, the parties agreed to consolidate the cases and use the transcript developed at the Commissioner’s hearing as the record in both cases. No additional evidence was adduced before the trial court. In the circumstances, it certainly must be said that since the findings of the Commissioner as to capital impairment are based upon substantial evidence, as held by the trial court, the Commissioner’s findings, therefore, constitute an unrebutted prima facie case and preponderate in the separate delinquency proceeding. Even if we disregard the Commissioner’s findings, in our view the record in the delinquency proceeding is amply sufficient to sustain the trial court’s judgment as a matter of law.

The trial court did not err in holding in the first case there was substantial evidence to support the Commissioner’s finding that appellant was insolvent; nor did the court err in holding that the appellant was subject to receivership in the second or the original action instituted by appellee in the circuit court.

Affirmed.


text:
    Martin L. STOUFFER et al v. THE CITY OF FORT SMITH et al
    5-5538
    467 S. W. 2d 175
    Opinion delivered May 24, 1971

      Garner & Parker, for appellants.

      Shaw, Ledbetter & Dailey and West, Core if Coffman, for appellees.
   Carleton Harris, Chief Justice.

Appellants, Martin L. Stouffer and his wife, Agnes Stouffer, instituted suit in the Sebastian County Chancery Court against the City of Fort Smith, and the appropriate officers of the city, seeking an order requiring appellees to re-zone certain property owned by the Stouffers, as commercial property. The complaint alleged that the property sought to be re-zoned had been used for commercial purposes at or prior to the time of the adoption of Act 108 of 1929, and had been used for such purposes since that time. It was further asserted that a petition had been filed with the appellees seeking the re-zoning and that appellants had appeared before the City Planning Board, which had refused to act upon the petition; that appellants had asked the City Commission of Fort Smith to grant the petition, but that said commission had refused the request. Appellants prayed that the court require appellees to approve the petition and to re-zone the property for commercial uses pursuant to the statutes of Arkansas. Affidavits in support of the complaint were offered as provided by Ark. Stat. Ann. § 19-2832 (Repl. 1968). After the filing of an answer denying the pertinent portions of the complaint, the case proceeded to trial, and following the taking of evidence, the court found that appellants’ claim rested solely on their proof of compliance with § 19-2832; that under the evidence and testimony, appellants had failed to discharge the burden imposed upon them “to show by clear, convincing and a preponderance of the evidence, that they and/or their predecessors in title have used the property concerned ‘at or prior to March 9, 1929,’ and, ‘continuously since that time for commercial purposes’ ”. The complaint was dismissed, and from the decree so entered, appellants bring this appeal. For reversal, it is simply urged that the trial court erred in finding that appellants failed to prove commercial usage since 1929.

The claim of appellants that the property should be re-zoned is based on the provisions of Section 19-2832 (Act 115 of 1961), which reads as follows:

“Any property used for commercial purposes at or prior to the time of adoption of Act 108 of the Acts of the General Assembly of the State of Arkansas for the year 1929 [§§ 19-2811—19-2818], [] and which has been used continuously since that time for commercial purposes, together with any other contiguous property used for rental or commercial purposes regardless of the period of such use, upon application to the planning commission and/or governing body in a city of the first class, accompanied by affidavit in support thereof, shall be zoned for commercial use.”

Accordingly, the question in this litigation is whether it has been established that the property sought to be re-zoned has been used for commercial purposes continuously since March 9, 1929, (the date of the approval of Act 108 of 1929).

It might first be mentioned that the property is located in a residential zone, but was permitted as a non-conforming use when the property was zoned as residential. Appellants’ effort to re-zone the property to commercial commenced in November 1966. The testimony of ten witnesses, including appellants, was offered on behalf of the Stouffers, but only four* of these, including Mr. Stouffer, testified relative to the length of time the property had been used for commercial purposes. This appellant, 45 years of age, stated that he and his wife had owned the property sought to be rezoned, (the East Half of Lot 11 and all of Lot 12 in Oakland Heights Addition to the City of Fort Smith) for about five years; that prior to that time he and his brother had owned it as a partnership for three or four years; preceding that period, they had bought it from his mother, and before that, the property was owned by his father. He testified that it had hever been used for residential purposes, but, to the contrary had been used to make a livelihood for the family. Stouffer is in the automotive parts business, and has three buildings on the land, an office building, a shop building, and a warehouse building. He said that he was seven or eight years old when he became familiar with the property and he could vaguely remember that the office building was constructed either in the latter part of 1929 or the first part of 1930. The witness stated that the first use of the property was as a service station and that he thought his oldest brother operated the service station for two or three years. He said that he thought it was next used as a sandwich shop until approximately 1932 or 1933; next, it was used as a grocery store from 1933 to 1938 or 1939. Stouffer testified that during that period the building was used for a number of different things, for parts, and machinery, “The building was being used as just a bunch of different things”. He stated that he was in military service from the latter part of 1941 through 1945, and that the brick (shop) building was built after the war, being completed in 1947. Apparently, from his testimony, two types of businesses were being operated for a portion of the same time, since it will be remembered that he stated the building was used (by a man named Obre) for a grocery store from about 1933 until 1938 or 1939, and further stated that an excelsior plant operated between the years 1933 and 1935, “maybe 1936. There is some argument in the family about that”. The witness said that he operates a rebuilder’s supply business, not rebuilding; that nothing is rebuilt, but he only supplies rebuilders with rebuildable automobile parts.

Gus Bauer testified that he was familiar with the property in 1928 and 1929, and at that time there was a car repair shop located there; that the corner had never been used for residential purposes. Bauer then testified that Martin Stouffer had been working there all the time from 1929, “all the time, absolutely”. The witness mentioned several types of businesses that were operated on the premises, and attempted to approximate the length of time these businesses were in operation; however, on cross-examination, he was unable to state the type of business that was operated during a particular number of years, and the only fact that Mr. Bauer was emphatic about was that the property had never been used as residential property.

Fred Goebel testified that he had been familiar with the Stouffer property since the early thirties. “They worked on cars, and they had an excelsior plant, had a junkyard, had some kind of a little business place, a little rock building. I don’t know what it was. But they have had something there; there has just been something there going on all the time. * * * Yes, sir, somebody has been making money doing something.” When asked if Martin Stouffer had used the property a lot, he replied, “They were just a bunch of kids at that time. Yes, since then, Mr. Stouffer passed away, you know, and the boys have maintained some kind of a business there, to a great extent connected with the automotive end of the trade”. He said there was a building on the property now used in the car parts business which used to be an excelsior plant; however, other proof offered reflected that this building burned in about 1956.

Charles Yutterman testified that he had been familiar with the property since 1928 or 1929, and that there had never been any residential Use of the land. When asked about the types of businesses that had been operated on the property, he replied, “There was a little restaurant, filling station of some kind, then there was some kind of a garage, they had some kind of a mill deal there, and then it has been a salvage, rebuilding thing for several years”. The witness was unable to give the periods of time when these several businesses had operated, or the order in which they occurred.

Julius Hogrefe testified on behalf of appellees that he had been familiar with the Stouffer property since 1955, and at that time there was nothing but a stone building on the premises, and there was no business activity in the building, it being vacant. He said that he saw it practically every day on his way to pick up the mail, and the building was vacant for a period of about five years. The witness stated that during that time there was no other business activity, i. e., buying or selling, except that a shed was being built to house the excelsior plant. Hogrefe said that he visited Stouffer (apparently Martin’s father) in the middle forties, prior to the construction of the brick building, and that Stouffer was working on a boat (for personal use), but the boat was not completed, and that no other activity was going on. Twelve other persons testified on behalf of appellees, but their testimony actually amounted only to objections to the re-zoning, and their evidence was not pertinent to whether Section 19-2832 had been complied with.

We agree with the chancellor that appellants have not shown compliance with the provisions of the required section by a preponderance of the evidence. It might be here stated that we do not take the court’s finding, earlier quoted, to mean that it was holding that the required burden of proof was clear and convincing evidence; such a finding would be erroneous, but it appears that when he stated, “Plaintiffs have failed to discharge the burden imposed upon them to show the clear, convincing and a preponderance of the evidence, * * that the property had been used continuously since March 9, 1929, for commercial purposes, that he was simply saying that the evidence offered by appellants was not sufficiently clear and convincing to constitute a preponderance. In other words, the witnesses would frequently make a general statement, but on cross-examination could not testify as to the specific facts in support of such a general statement. Of course, Stouffer himself was away for a four year period during the war, and there is actually no testimony covering this specific period. The testimony of Bauer is bound to be incorrect, at least in one respect, for he stated that Martin Stouffer had been working “all the time, absolutely” since 1929, and in fact stated that Marty “took over in 1929”. Yet, the evidence clearly shows that Stouffer was only seven or eight years of age at that time. Be that as it may, it is easy to see why the chancellor considered that the proof lacked a convincing quality; the evidence was simply too vague to establish continuous commercial use since 1929. Also, there was affirmative evidence, heretofore mentioned, that there was a five year period when the property was not used at all. Let it be remembered that the statute does not simply require that it be shown that property has not been used for residential purposes; to the contrary, there is a positive requirement, viz, that it be shown that it has been continuously used for commercial purposes.

In addition, the statute has been attacked as unconstitutional, it being asserted that it is in conflict with the prohibition contained in the Fourteenth Amendment to the Constitution of the State of Arkansas, same providing that the General Assembly shall not pass any local or special act. Under the view that we take, expressed in this opinion, there is no occasion to discuss that contention.

Since we are unable to say that the Chancellor’s findings are against the preponderance of the evidence, it follows that the decree should be affirmed.

It is so ordered.

       The city was added as a party defendant after the original complaint had been filed.

       These eight sections were repealed by Act 186 of 1957.

       The other witnesses testified to such matters as the traffic count; that commercial property was located something like a quarter of a mile away; some who had land nearby testified that they had no objections to the Stouffer property being zoned commercial.