text:
    Kansas City So. Rly. Co. v. Beaty
    5-3467
    388 S. W. 2d 79
    Opinion Delivered March 22, 1965.

      Harclin, Barton, Hardin & Jesson, for appellant;

      Bober Shaw & Nabors Shaw, Donald Poe, for appellee.
   Ed. F. McFaddin, Associate Justice.

Six cases against the appellant were consolidated in the Trial Court; and from jury verdicts and judgments in favor of the plaintiffs, there is this appeal. The entire litigation stems from a forest fire which occurred in late October 1963 and caused considerable damage to forest lands and destruction of personal property. The plaintiffs alleged that the fire was caused by a locomotive negligently operated by appellant; that because of appellant’s negligence in allowing rank vegetati on the fire quickly spread from the railroad right-of-way to adjacent lands and inflicted the damages which the plaintiffs sought to recover. On appeal, appellant urges three points:

‘‘ I. The trial court erred in refusing to grant appellant a directed verdict and in refusing to give appellant’s requested preemptory instruction No. 2.
“II. The trial court erred in giving court’s Instruction 7-A over the objection of appellant.
“III. The damages awarded by the jury on the Grady Beaty, Houston Beaty, Finkenbinder and Dennis-ton tracts are excessive and are not supported by substantial evidence and the court should order a remittitur as to them.”

L

Appellant’s first assignment necessitates a discussion of the governing law as well as the sufficiency of the evidence. We will commence with the law, as this is the first time we have considered Act 320 of 1955.

Our reports contain numerous cases wherein a landowner has sought damages against a railroad company for fire caused by sparks from the locomotive. Long prior to 1907 we had such cases, some of them being St. L.I.M. & S. v. Coombs (decided in 1905), 76 Ark. 132, 88 S.W. 595; and Tilley v. St. L.S.F. Ry. (decided in 1887), 49 Ark. 535, 6 S.W. 8. In all sucli cases, prior to 1907, the plaintiff suing the railway for damages was required to both allege and prove negligence on the part of the railroad company as the proximate cause of the fire. But the 1907 Legislature adopted Act No. 141 of 1907, which relieved the plaintiff from proving negligence. This Act No. 141 of 1907 became §8569 of Crawford & Moses’ Digest, §11147 of Pope’s Digest, and Ark. Stat. Ann. §73-1014 (1947). Under the 1907 Act a plaintiff seeking to recover damages was required to show that the fire was caused by the railroad company, but was not required to show that the railroad company was negligent in causing the fire. Some such cases so holding are: St. L. S.F. Ry. Co. v. Shore, 89 Ark. 418, 117 S.W. 515; Evins v. St. L. S.F. Ry. Co., 104 Ark. 79, 147 S.W. 452; Cairo etc. Ry. Co. v. Brooks, 112 Ark. 298, 166 S.W.; and Mo. Pac. v Fowler, 183 Ark. 86, 34 S.W. 2d 1071.

The statutory law continued unchanged on this point from 1907 until 1955. Then came Act No. 320 of 1955 which expressly repealed the Act No. 141 of 1907 and substituted the language, as now found in Ark. Stat. Ann. §73-1015 (Repl. 1957). The effect of the 1955 Act is to require the plaintiffs in cases such as the present ones to prove that the railroad company was guilty of negligence. Thus, the law on this matter applicable today is just as it was before Act No. 141 of 1907. With that point understood, cases decided before the 1907 Act provide the applicable rules now governing; and from the cases decided before 1907 we point to St. L., I.M. & S. Ry. v. Coombs, 76 Ark. 132, 88 S.W. 595, and Tilley v. St. L. S.F. Ry., 49 Ark. 535, 6 S.W. 6. In the Coombs case we-said:

"In order for the railroad company to be held liable for the damage, the fire must have been communicated by sparks from the engine, and the escape of the sparks must have resulted from negligence on the part of the company or its servants, either in the construction or operation of the engine. This Court held that, from proof that an engine passed near inflammable material immediately before the discovery of fire, there being-no evidence to explain its origin, the jury may infer that the fire originated from sparks from the engine. Railway Company v. Dodd, 59 Ark. 317. In that case the court said: ‘The cotton was liable to take fire from these trains, and communicate it to .the depot. One of them passed ten or fifteen minutes before it was destroyed. The cotton caught fire, and the depot was consumed by it. These were facts from which the jury might have inferred that the fire originated in sparks from the engine of the train which had just passed, there being- no evidence to explain its origin upon any other theory. All these facts tended to show that the property of appellees was destroyed through the negligence of appellant, and are sufficient to sustain the verdict of the jury in this court.’ This enunciation is in line with many adjudged cases on the subject.”

An interesting case is Mo. Pac. Ry. Co. v. Johnson, 198 Ark. 1134, 133 S. W. 2d 33. Even though this case was decided in 1939, nevertheless the plaintiff could not claim any advantage of Act No. 141 of 1907 and the case was tried under the law as it existed before 1907. In Mo. Pac. v. Johnson we quoted from an earlier case:

“ ‘Where fire is discovered shortly after a train has .passed, and the proof does not establish some other origin of the fire, the jury is justified in finding that fire originated from sparks from the engine . . . There is thus made a case of prima facie negligence, not rebutted by other evidence to the effect only that the spark arresters were in good condition ...”

With the law thus stated and understood, we turn to the facts in the appeal now before us to ascertain whether the appellant was entitled to an instructed verdict on the claim that the plaintiffs had failed to show the railroad company and its employees were guilty of negligence. It was shown that the appellant’s passenger train, had to go over a steep grade in going from Mena, Arkansas, to Heavener, Oklahoma; that the crest of the grade was the Rich Mountain crossing; that the train passed the Rich Mountain crossing at about 11:45 A. M. on October 30,1963; that three men who worked for the Forestry Service had been up on Black Fork Mountain putting out a small fire and had returned to the Rich Mountain crossing; that another witness, Mr, Stites, was also at the crossing; that two of'the foresters were on one side of the railroad right-of-way and Mr. Stites and the other forester were on the other side; and that immediately after the train passed the Rich Mountain crossing these men observed two fires on the right-of-way about 100 yards toward Mena on the side'where the train had been going upgrade. One of the Forestry Rangers at the Rich Mountain crossing was Basil D. Barr, and he testified that after the fire had been brought under control he went back to the place where he had seen the fire start on the railroad right-of-way:

“Q. What did you observe or what did you find along the railroad there to call your particular attention to?
“A. I found various particles which appeared to be carbon.
“Q. Had you had previous occasions to know what burnt carbon is?
“A. Yes.
“Q. And you say you found particles of substances » that appeared to be burnt carbon?
“A. Yes, sir.
“Q. Where did you find those particles?
“A. At the site where these two fires occurred that we put out. ’ ’

It was shown that there had been a long drought; that the railroad had cut some of the vegetation and left it on the right-of-way uncollected, and that some of the dry vegetation was still standing and was as much as four feet high. There was an extremely strong wind. The two fires observed on the right-of-way, as previously mentioned, spread so rapidly that Mr. Stites and the three forestry men were unable to stop the fires which went for miles. It was 72 hours before the fires were' controlled and in that period of time the fires burned the property of these appellees. Besides Mr. Stites and the three forestry men, all of whom testified, there were two other disinterested witnesses: Mrs. Gilbert, who lived near the right-of-way of the railroad company, about a mile from the Rich Mountain crossing; and Mrs. Davis, who lived 100 yards from the south side of the railroad. Both of these witnesses testified that before the train passed there had been no one on the right-of-way and no evidence of fire; ánd that as soon as the train passed each witness observed the fires. Testimony offered by the plaintiffs made a prima facie case of negligence within the purview of our holdings prior to 1907, and the burden then shifted to the railroad company to prove itself free of negligence. The railroad company offered no evidence whatsoever on this issue of negligence. We hold that the Trial Court was correct in denying the defendant’s motion for an instructed verdict.

II.

Appellant’s second point relates to Instruction No. 7-A which the Court gave, and which reads:

“If you find by a preponderance of the evidence that the defendant railroad company or its employees, while acting in line and discharge of their duties, carelessly and negligently allowed or permitted sparks or fire to escape from its engine or train setting fire to its right-of-way, or carelessly and negligently allowed or permitted its right-of-way to become vegetated or covered with easily inflammable or combustible matters and that this coupled with the operation of their train, caused a fire to start, and further, that as a proximate cause of such negligence, if any, a fire was created which burned the respective plaintiffs ’ properties, then your verdict should be for the plaintiffs.”

The objection that the appellant offered to the said instruction was:

“With reference to Instruction No. 7-A, we submit that the instruction is erroneous since it would allow the jury to find negligence upon the part of the defendant for allowing any vegetation to grow upon the right-of-way as we understand that would not be sufficient upon which to base a verdict; that there is no evidence to support the instruction; that the plaintiff did not introduce evidence to show any negligence upon the part of the defendant, consequently it is abstract and it is binding. ’ ’

We hold that the appellant’s point is without merit. This instruction is in line with the holdings in our cases prior to 1907, as previously mentioned. See Mo. Pac. v. Johnson, 198 Ark. 1134, 133 S.W. 2d 33, decided under the law prior to 1907.

In 18 A.L.R'. 2d 1081, there is an annotation entitled: “Liability of one on whose property accidental fire originates for damages from spread thereof”; and on Page 1090 of that annotation, cases from various jurisdictions are cited to sustain this statement:

“Where a railroad company fails to use due care to keep its right-of-way free from combustible ’ material, and a fire is started thereon by sparks from a locomotive, the company is liable for the damages sustained by the fire spreading to other property, although there is no negligence in equipping and operating the locomotive. ’ ’

III.

The appellant’s third point relates to the amount of the damages. There were six actions consolidated against the railway company for the fire damage, and a verdict was rendered for the plaintiff in each action. One of these verdicts was in favor of Messrs. Shores, et al., for the destruction of personal property, and there is no claim that this verdict is excessive. Another of the verdicts was in favor of Mrs. Blalock for the destruction of the timber growing on her lands, and there is no claim that this verdict is excessive. But in the other four cases, the appellant claims the verdict and judgment in each case is grossly excessive and asks for a remittitur.

The Court instructed the jury on the correct measure of damages in the following instruction:

“If you find for the plaintiffs on the question of liability you must then fix the amount which will reasonably and fairly compensate them for the following elements of damage proven by the evidence to have resulted from the negligence of the defendant. “As to the landowners: Tiie diffefence in the fair market value immediately before and immediately after the fire ...
“Whether any of these elements of damage has been proved by the evidence is fot' yon to determine.”

It would unduly prolong this Opinion and serve no useful purpose for us to detail the amount of the judgments, how the evidence bore on each element of damage, and the various other matters that are urged by the appellant and resisted by the appellees. It is sufficient to say that we have carefully considered the evidence and had the benefit of oral argument of learned counsel for each side in this Court; and we have concluded that the appellant’s claim for remittiturs should be denied. It therefore follows that the judgments are in all things affirmed.

       Here is the germane portion of Act No. 320 of 1955: “All corporations, companies or persons, engaged in operating any railroad wholly or partly in this State, shall he liable for the destruction of, or injury to, any property, real or personal, which may he caused by fire resulting from the negligence of such corporation, companies or persons, or resulting from the negligent operation of any locomative, engine, machinery, train, car, or other thing used upon said railroad, or which may result from, or he caused by the negligence of any employee, agent, or servant of such corporation, company or person in the discharge of his duty as such upon or in the operation of such railroad; and the owner of any such property, real or personal, which may be destroyed or injured in the manner set forth hereinabove may recover all such damage to said property by suit in any court, in the county where the damage occurred, having jurisdiction of the amount of such damage.”


source: Caselaw Access Project

author: George Eose Smith, J.

license: Public Domain

text:
    Morton v. Yell
    5-3522
    388 S. W. 2d 88
    Opinion Delivered March 22, 1965.

      Rex W. Perkins and Walter R. Niblock for appellant.

      Thomas Pearson and James R. Hale, for appellee.
   George Eose Smith, J.

J. L. Jones died testate in April, 1963, leaving his homestead in Prairie Grove to the trustees of two cemeteries. Ten months after Jones’s will was probated the appellants, Ken Morton and his wife, filed this suit in equity against the cemetery trustees and the executor of Jones’s will, asking for specific performance of an oral contract, made in 1960, by which Jones had agreed to leave the property in question to the Mortons in return for their taking care of him for the rest of his life. This appeal is from a decree finding that the Mortons failed to prove their case by clear and convincing evidence.

The cemetery trustees first contend that the Mortons are barred by the statute of nonclaim, having failed to assert any cause of action against the executor until more than six months after the publication of the notice to creditors. Ark. Stat. Ann. § 62-2601 (Supp. 1963). This contention was rejected in Fred v. Asbury, 105 Ark. 494, 152 S.W. 155, where we said: “The statute of nonclaim is urged as a bar to the relief sought. This statute provides that all claims against estates of deceased persons shall be barred unless they are properly authenticated and presented to the executor or administrator within one year after the grant of letters; but this is not a proceeding to enforce a claim or demand against the estate of Jacob Fred, deceased, but is one to determine the rights of the parties to this suit to the property in question. The statute of nonclaim does not refer to claims of title or for the recovery of property for the reason that claims of such a character can not in any just sense be said to be claims against the estate of the deceased.”

In this respect the law has not been changed by the Probate Code, which provides: “ A valid agreement made by a testator to convey property devised in a will previously made shall not revoke the previous devise, but such property shall pass by the will subject to the same remedies on the agreement against the devisee as might have been enforced against the decedent if he had survived.” Ark. Stat. Ann. § 60-412 (Supp. 1963). Under this statute the appellants’ remedy is not against the estate but against the devisees. A court of equity is the proper foi’um for their suit for specific performance. Merrell v. Smith, 226 Ark. 1016, 295 S.W. 2d 624.

On the merits the Mortons insist that the chancellor erred in holding that their testimony about the oral agreement was inadmissible under the dead man’s statute, because, they argue, the executor is not a necessary party to the case. We need not explore this connection, for we think that even without this testimony the making and performance, of the contract were established by clear and convincing proof.

The Mortons called the executor as their own witness, as they were entitled to do under the dead man’s statute; for if he was in fact a necessary party his testimony was rendered admissible by the fact that he was called as a witness by his adversary. Ark. Constitution, Schedule, § 2. The executor had long been a friend of the decedent and does not appear to have had the slightest reason for misrepresenting the facts. He testified that Jones told him that he had decided to give the Mortons the property “to take care of him at home.” The executor also identified a codicil, signed by the testator, in which he directed that the home property be conveyed to the Montons “for their taking care of me in my declining days.” The codicil was ineffective, because there were no attesting witnesses, but it was admissible as a statement against interest made by the appellees ’ predecessor in title at a time when he was the owner of the land. Pitts v. Pitts, 213 Ark. 379, 210 S.W. 2d 502.

There is an abundance of disinterested proof that the Mortons did take care of Jones in the last years of his life. Inasmuch as the Mortons were not related to Jones and had no duty to look after him the fact that they did faithfully care for him is a circumstance strongly corroborating the existence of the oral agreement. The defendants below offered no testimony at all; so the plaintiffs’ persuasive evidence stands uncontradicted. We consider it sufficiently clear and convincing to satisfy the Mortons’ burden of proof.

Reversed.


author: Paul Ward, Associate Justice.

text:
    Ark. State Highway Comm. v. Lay
    5-3504
    388 S. W. 2d 85
    Opinion Delivered March 22, 1965.

      Marh E. Woolsey and Thomas B. Keys, for appellant.

      Opie Rogers and Carl 8. Whillock, for appellee.
   Paul Ward, Associate Justice.

This is an eminent domain action brought by the Arkansas Highway Commission (hereafter referred to as appellant) to acquire approximately 1.2 acres of land belonging to Wallace Lay, who is now incompetent, and who will hereafter be referred to as appellee. The land, which was at the junction of highways 19 and 65, is located in Van Burén County about a mile from Clinton.

Other parties mentioned as defendants in the suit, but who have no particular interest in this appeal, are a Mr. Dempsey, guardian of appellee, and a Mr. Keeling who held (at the time this action was begun) a 19 month lease on appellee’s property for which he was paying $50 per month.

Based on a jury verdict the trial court rendered judgment vesting title to the property in appellant, and giving appellee judgment in the amount of $16,975. The only points raised by appellant on appeal are: One. The trial court erred in not striking the testimony of two witnesses for appellee; and Two. The trial court erred (a) in refusing to give appellant’s requested Instruction No. 1, and (b) in giving its own Instruction No. 5. The pertinent testimony relative to the points raised will be summarized as each point is hereafter discussed.

One. (a) Appellee’s first witness who testified as to the value of the condemned land was Ray Wheeler. His pertinent testimony, in substance, was: I am 41 years old; have been a real estate broker for 19 years — 15 years having been spent in Yan Burén County; I have completed approximately 1300 real estate transactions; and am acquainted with real estate values in this county; I am familiar with the condemned land and the improvements thereon. In my opinion its highest and best use is for commercial, tourist, and resort property, and I value it at $24,250. During his testimony the witness referred to the fact that there was an existing lease on the property and, in effect, his testimony was not clear as to the length or value of the lease. At this point appellant moved to strike the witness’ testimony as to value because it did not reflect appellee’s interest in the property — i.e., it did not reveal the value of the lease. The trial court’s ruling was:

“The court is overruling the motion, subject to the condition that later on in the case there will be evidence from which the leasehold rights may be determined, the motion is being overruled on that condition.”

This ruling appears to have satisfied appellant because there was no further objection at that time.

The court ruled correctly, and, also, we think the deficiency in the testimony.was supplied by the witness next mentioned.

(b) Farrisli Fraser, a witness for appellee, testified in substance: I am 65 years old, in the insurance business, live, and own property, in Clinton; I have also bought and sold real estate in Van Burén County; I am familiar with the subject property; the property is now leased to a Mr. Keeling for $50 per month and the lease has about 19 months yet to run. In my opinion the rental value of the property is $175 per month, and I think someone should pay Mr. Keeling the difference between $175 and $50 per month for the rest of the lease, but I understand Mr. Keeling accepted $850 from appellant. At this point appellant moved to strike the testimony on the ground that the witness did not correctly reduce the estimated rental value to the present day dollar value. The motion was overruled by the trial court, and we think correctly so.

Conceding that the witness did not make the proper deduction, we still think the court was right in not excluding all his testimony. Any possible prejudicial error was purely mathematical and could have been avoided by a requested instruction or by argument to the jury. Furthermore, it appears any prejudicial error was cured by appellant’s own witness who stated Keeling had been satisfied by the payment of $850 for the balance of his lease. Appellant does request that $850 be deducted from the judgment.

It will be noted we have not discussed the testimony of appellant’s witnesses who fix the value of appellee’s property as low as $8,400. Appellant makes no contention there is no substantial evidence to sustain the jury’s verdict if (as we hold) the jury is permitted to consider the testimony given by Wheeler and Fraser.

Two. Likewise, we find no reversible error alleged under this point.

(a) At the close of all the testimony appellant moved for a directed verdict as follows:

“We ask for a directed verdict based on the fact that the highest and best testimony in the record is $8,400.00 as of the date of the taking, November 1, 1963.”

In view of what we have already said under point one, it is now obvious that the trial court was correct in denying this motion.

(b) Finally, appellant argues it was reversible error for the court to give Instruction No. 5 which reads:

“Whenever private property is approximated as incident to the taking for a public purpose the owner is entitled to just compensation for the lands taken. In this case the just compensation which the owner is entitled to receive is the fair market value of his interest in the lands as of the date of the taking which was Nov. 1, 1963.”

(Emphasis added.)

Again, appellant’s objection is based upon a former contention which we have already (under point one) resolved against it. Stress in appellant’s argument is placed on the two words emphasized in the instruction — “his interest” —contending there was no competent evidence from which the jury could arrive at appellee’s interest — that is, the value of the fee less the value of the lease. As indicated, we have already resolved that issue in favor of appellee. Pertinent to the issues discussed herein is the well established rule, stated in Wallis v. Stubblefield, 216 Ark. 119, 225 S.W. 2d 322, as follows:

“In determining whether there is substantial evidence to support the judgment, we must, therefore, give the evidence adduced on behalf of appellee the strongest probative force that it will reasonably bear.”

Finding no reversible error, the judgment of the trial court is affirmed.

Affirmed.

McFaddin, J., not participating.


author: Sam Bobinson, Associate Justice.

text:
    Dodson v. Muldrew
    5-3506
    388 S. W. 2d 90
    Opinion Delivered March 22, 1965.

      Pope, Pratt & Shamburger, By Don Ryan and Walter Davidson, for appellant.

      U. A. Gentry, for appellee.'
   Sam Bobinson, Associate Justice.

Appellants’ clear and concise statement of the case is as follows:

‘ ‘ This is a proceeding arising out of the condemnation of lands located in North Little Bock by the Urban Benewal Agency of North Little Bock, in which the sole controversy is the right to the proceeds thereof. The lands were formerly owned by one Mary Collier, a common ancestor of all the parties, who died intestate in 1933 survived by four children, named James Collier, John Collier, Louise (Collier) Dodson and Gaines Collier. The Appellee is the illegitimate child of James Collier, deceased, and the sole surviving beneficiary of his will. The Appellants are the children (or their descendants) of Mary Collier.
“The Appellants claim title as co-tenants with the Appellee as descendants of Mary Collier and the Appellee claims title through a will of his father and by adverse possession. The Appellee is a minor and claims possession was held adversely by his mother in his behalf.
“Mary Collier acquired the lands in 1920. Prior to her death in 1933, the lands were forfeited to the State for delinquent 1929-30 taxes, and were quieted in the State by a Decree entered in 1938. In 1941 a tax deed from the State was made to one W. F. Atwood for $86.63, and in that same year "W. F. Atwood quit-claimed the lands to James Collier for a recited consideration of $55.00. James Collier, father of the Appellee, was in possession of the lands upon his death and his common law wife, Cora Muldrew, with her minor son, the Appellee, and other children have remained in continuous possession of the property by living thereon until the property was condemned by the Urban Renewal Agency.
‘ ‘ The issue of the validity of the Will of James Collier was formerly before this Court in 1 be case of Corean Muldrew, Guardian v. Louise Collier Dodson, et al, 237 Ark. 852, 376 S.W. 2d 672.
‘ ‘ In the proceeding now on appear t lie tidal court concluded that the parties were not co-tenants, that the appellee took title to the entire property through the will of his father, and that he otherwise held title by adverse possession. The Appellants designated a partial record and listed points to be relied upon and this appeal followed.”

It is not necessary to go into the question of whether the purchase by James Collier from W. F. Atwood was a redemption by a co-tenant that inured to the benefit of all co-tenants because we agree with the trial court on the other point that Nathaniel Muldrew has acquired the property by adverse possession by holding through his mother adversely to the co-tenants.

The rule is that before a co-tenant can acquire title by adverse possession, knowledge of his adverse claim must be brought home to his co-tenants directly or by such notorious acts of unequivocal character that notice may be presumed. Singer v. Naron, 99 Ark. 446, 138 S. W. 958; Griffin v. Solomon, 235 Ark. 909, 362 S.W. 2d 707. But when it is shown that co-tenants kneAV, or should have knoAAm, that another co-tenant is claiming ownership by adverse possession, the statute begins to run. Johnson v. James, 237 Ark. 900, 377 S.W. 2d 44.

There is no question about appellee having possession. The only question is: Was Nathaniél Muldrew’s claim of ownership brought home to appellants in such manner that they knew that appellee was claiming ownership of the entire property? The trial court answered the question in the affirmative. We agree.

Appellee and his mother moved onto the property to live with James Collier in 1946 and have lived there since that time. James Collier died on the 19th day of March, 1947, leaving a will in which he devised the property to his two illegitimate children, appellee Nathaniel Muldrew, and his sister, Eosetta Muldrew. The sister died in 1960 without issue. The evidence is convincing that appellants knew that Cora Muldrew'’ was holding the property for her children, claiming that they owned it under the terms of the will of James Collier, who held the record title. Adverse possession can be established in this manner. 2 C. J. S. 517; 1 Am. Jur. 801.

On November 12, 1947, appellants, Louise Dodson, Gaines Collier, Josephine Carter, Ada Tanner, Mary Mc-Farlin, Anna McKinnis, Beatrice Nelson, Verna Nicholson, lela Moss, Euby Gentry, Eaymoncl Collier and Otis Collier, filed suit in the Pulaski Chancery Court naming as defendants John Collier, one of the appellants in the case at bar, and appellee herein, Cora Muldrew, mother of Nathaniel and Eosetta Muldrew (illegitimate children of James Collier), alleging that the • plaintiffs, along with John Collier, owned the property involved herein; that Cora Muldrew occupied the house on the property and refued to move, notwithstanding that she had no title or interest in the property; and that the two illegitimate children of James Collier, namely Eosetta Muldrew and Nathaniel Muldrew, were devised the interest of the said James Collier in his will. It was asked that a Writ of Assistance be issued requiring the defendant Cora Muldrew to surrender possession of the property.

It was shown in the aforesaid 1947 action that Cora Mnldrew is the mother of Nathaniel Muldrew and Rosetta Muldrew (now deceased), the illegitimate children of James Collier, and as mother of these minor children she was holding the property for them; that they claimed title under the will of James Collier. It was shown that James Collier did leave a will in which he devised the property to Nathaniel and his sister, Rosetta.

The allegations contained in the Amended Complaint filed by appellants in 1947, a short time after the death of James Collier, show that appellants knew that James Collier had left a will in which he devised the property to his illegitimate children; that Cora Muldrew was holding the property under the will for the children. The original suit was dismissed. Cora Muldrew did not surrender possession, but continued to hold the property for her illegitimate children. No further attempt was made to dispossess her, or Nathaniel Muldrew, until the case at bar was filed in 1963, some 16 years later. In the meantime, a sufficient period of time had elapsed to give Nathaniel title by adverse possession.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    City of Jonesboro v. Kirksey
    5-3493
    388 S. W. 2d 78
    Opinion Delivered March 22, 1965.

      Frierson, Walker & Snellgrove, for appellant.

      Ward di Mooney, for appellee.
   Jim Johnson, Associate Justice.

This is an action to declare certain property dedicated to the public use for street purposes. Appellant City of Jonesboro filed its declaration judgment complaint in Craighead Chancery Court, Jonesboro District, on. January 23, 1964, against appellees Claude G-. Kirksey and Mildred Kirksey, his wife, Jonesboro landowners, contending that a part of their property had been dedicated for the public use as a street. The case was tried on August 17, 1964, and at the close of appellant’s case, on appellees’ motion the court dismissed appellant’s complaint on the grounds “that all of the evidence on behalf of [appellant], when given its most favorable probative interpretation, failed to establish a prima facie case in favor of [appellant]. ’ ’

For reverse appellant urges that its evidence was sufficient to establish a prima facie case of appropriation of property by appellees and acceptance thereof by appellant, thereby completing the dedication of such property, and relies primarily on Hankins v. City of Pine Bluff, 217 Ark. 226, 229 S.W. 2d 231. There we said in part:

‘ ‘ On this testimony the chancellor correctly held that there had been a dedication of the road, which inured to the city when it annexed this territory. The two essential elements of a dedication are the owner’s appropriation'of the property to the intended use and its acceptance by the public. Ño specific duration of the public user is required to complete the dedication. Ayers v. State, 59 Ark. 26, 26 S.W. 19. Nor need the dedication be evidenced by a deed. Conner v. Heaton, 205 Ark. 269, 168 S.W. 2d 399. It is quite possible that Hankins did not realize that the effect of his agreement was to give the public a permanent easement across his property, but there was nothing in his conduct to put the county on notice that his offer was in any way conditional. On the contrary, the county judge testified that the county would not have accepted the right-of-way had such a condition been attached. ’ ’

Reviewing the evidence in the case at bar first on the element of “the owner’s appropriation of the property to the intended use” (and giving appellant’s evidence its strongest probative force in support of its case, Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225), there is evidence that local businessmen wanted to extend Washington Avenue across appellees ’ property to Caraway Road, a state highway, that appellees approached the president of the chamber of commerce and offered right of way across their property and $500 toward obtaining the rest of the necessary right-of-way, that the city made a survey in January, 1956, of the proposed street extension which shows that a metal building and a work shop were in the path of the proposed street, further evidence that these buildings along with a small solid concrete retaining wall were removed by appellees, and that the north line of the proposed street on the survey was a line prescribed by appellees.

On the second element, acceptance by the public, there is testimony that early in 1960 when appellees asked the mayor to repair a wooden bridge (which appellees had built and maintained theretofore), the city tried to keep the bridge passable and finally in June or July of 1960 the city built a concrete bridge to replace the wooden bridge in line with the right-of-way specified by appellees. When the bridge was completed in about a week, the city immediately started grading the street and put in drainage tile following the curb. (This drainage expense ran some $5,-500 including two bridges.) The street was graveled in 1962. Prior to that it was used by the public as a dirt road and have never been closed since it was opened by the city.

This suit was commenced after appellees “ran off” the city water and light crew sent to install a sewer line and refused to allow the sewer to be installed.

Having presented appellant’s evidence in the light most favorable to appellant, solely to determine whether it established a prima facie case of dedication by appropriation and acceptance, we find that the trial court erred in granting appellees ’ motion to dismiss at the close of appellant’s evidence. Werbe v. Holt, supra. The case is therefore reversed and the cause remanded for further development.


author: Frank Holt, Associate Justice.

text:
    Mason v. Peck
    5-3498
    388 S. W. 2d 84
    Opinion Delivered March 22, 1965.

      D. Pat Moran and W. E. Billingsley, for appellant.

      W. G. Wiley, for appellee.
   Frank Holt, Associate Justice.

The appellant and appellee are adjacent landowners. The appellee brought this action to enjoin and restrain the appellant from interfering with her use of a spring allegedly upon her lands. In appellant’s answer he contended the spring was located upon Ms lands. The chancellor found the issue in favor of' the appellee and permanently enjoined and restrained the appellant from trespassing upon her lands. On appeal appellant questions the sufficiency of the evidence.

Appellant first argues that ‘ ‘ The Certificate of Survey by the County Surveyor, Mr. Coleman, was filed for Record and is prima facie correct and the court should have so held.” It is true that the certified copy of the record of a county surveyor is prima facie evidence of the correctness of a boundary line as it appears from the survey. Ark. Stat. Ann. § 12-1220 (Repl. 1956). However, this is a rebuttable presumption and any duly qualified surveyor may testify as to its correctness. Russell v. State, 97 Ark. 92, 133 S.W. 188; Walters v. Meador, 211 Ark. 505, 201 S.W. 2d 24. See, also Ark. Stat. Ann. § 12-1221 (Repl. 1956). The appellee presented as her witness a duly qualified surveyor, Mr. Roberts, who testified the spring is located upon appellee’s property.

Appellant next contends that Mr. Roberts’ survey upon which he based his testimony is not sufficient to overcome the prima facie correctness of the certificate of appellant’s surveyor. We cannot agree. The appellee introduced into evidence deeds reflecting her to be the owner of certain lands. Mr. Roberts surveyed her lands according to these deeds. He confirmed his survey by a church deed to land adjacent to appellee’s property. A plat prepared by surveyor Roberts was also introduced into evidence. Mr. Roberts unequivocally testified that the spring in question is located upon appellee’s property. His testimony was corroborated by several witnesses who live in the community. They testified that for many years the spring was generally known as ‘ the Peck spring. ’ ’

During approximately sixteen years, that appellant and appellee had lived on their respective lands as neighbors, the appellee had utilized the spring. Appellant’s recent attempt to exercise acts of ownership resulted in this litigation. Appellant presented his surveyor, Mr. Coleman, to corroborate his evidence of ownership. Mr. Coleman testified that according to his survey the spring was on appellant’s lands by a few feet and that lie had offered to resurvey appellant’s property to determine if he or appellee ’s surveyor had made the mistake in the disputed surveys, however, appellant refused because of the expense. As to which surveyor made the mistake, Mr. Coleman testified : “I don’t know whether I made it or whether he did. ’ ’

The location of a boundary line is to be determined by a preponderance of the evidence. Buffalo Zinc & Cooper Co. v. McCarty, 125 Ark. 582, 189 S.W. 355. It is well settled that on appeal we do not disturb the finds of the chancellor unless against the preponderance of the evidence.

In the case at bar we cannot say that the finding of the chancellor that the spring in question is located upon appellee’s lands and subject to her exclusive control and ownership is against the preponderance of the evidence.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Jones v. City of Forrest City
    5119
    388 S. W. 2d 386
    Opinion Delivered March 29, 1965.

      George Hoivard, Jr., for appellant.

      Bruce Bennett, Atty. Gen., By: Bussell J. Wools, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Jessie A. Jones was charged by the city of Forrest City with. Driving While Intoxicated, Resisting Arrest, and Assaulting an Officer. After being convicted on all counts in the Munipical Court, J ones appealed to the Circuit Court, where he was tried before a jury. The cases were consolidated for trial, and, after hearing the evidence, the jury brought in a verdict of guilty, as follows:

Driving while intoxicated — fine of $250.00, 30 days in the county jail, and 1 year’s revocation of driver’s license;

Resisting arrest — $500.00 fine, and 90 days in the county jail;

' Assaulting an officer — $500.00 fine, and 90 days in the county jail.

Judgment was entered in accordance with the verdict, and it was ordered that the sentences run consecutively. From such judgment comes this appeal.

It is first urged that the court erred in overruling appellant’s motion to quash the petit jury panel, because of alleged racial discrimination in the selection of jurors in St. Francis County. A large portion of appellant’s brief deals with this contention, but since .the case must be reversed on other grounds, we see no reason to discuss this particular point.

We think the court committed error in permitting the introduction of evidence concerning a sobriety test administered to appellant. The evidence reflects that Jones was arrested by officers Dave Parkham and Jack Jones, and taken to the city jail. There, according to the officers, he voluntarily agreed to take a sobriety test. This particular test related to ascertaining the alcoholic content in the urine and blood. Officer Jones stated that he took appellant to the bathroom, and handed him a bottle for the purpose of obtaining a urine specimen; that he (the officer) then labeled the bottle, by placing the name, “Jessie Jones,” on it, and left it in the bathroom. Officer Jones testified that the bottle was approximately of one-half pint size, ‘ ‘ the type they use at the hospital, ’ ’ and the witness stated that no other specimens were in the room when he left. Subsequently, Robert C. Smith, Jr., a laboratory and X-ray technician at Crawley-Cogburn Clinic, was called by someone, and Smith went to the Police Station, picked up a bottle containing a specimen in the bathroom, and there after ran a test which showed 4.4 milligrams of alcohol per CC. According to the explanation given by Smith, the analysis reflected that Jones was drunk and disorderly. Smith’s testimony was objected to by appellant, but the objection was overruled. We are of the opinion that this evidence was erroneously admitted, first, because the prosecution is required to establish all necessary links in the chain of evidence, which would clearly identify the urine analyzed as coming from the body of the accused. In State v. Reenstierna (New Hamp.), 140 A. 2d 572, Chief Justice Kenison, speaking for the court said:

‘ ‘ * * * The State is required to establish the essential links in the chain of evidence relied on to identify the blood analyzed as being the blood taken from the accused. * * *
“In this case the blood sample taken from the defendant has not been identified with and traced to the analysis made by the State Department of Health. However likely it may be that they are one and the same, the State has failed to prove it. ’ ’

In People v. Lesinski, 171 NYS 2d 339, two members of the Buffalo Police Department arrested the defendant about 11:15 P.M. A urine sample was taken about 11:40 P. M., and a salt solution was placed in the bottle which the officer witness placed in his pocket. The witness then took the bottle to his home, and placed it beneath a vanity dresser in his bedroom, and next morning picked up the bottle and delivered it to a police chemist. The testimony reflected that the witness ’ wife, mother, and father-in-law lived with him at the home, where the bottle had been kept all night. The case was reversed on this point and another, and the court said:

“Identify and unchanged condition must be first established before a specimen may be alloAved in evidence together Avith the chemist’s testimony or his report. Where material evidence for a conviction of driving while intoxicated is the alcoholic content of a blood or urine specimen, it is essential to show the chain of possession of the sample and the unchanged condition of the container from the time it is taken from the defendant until it is delivered to the chemist. ’ ’

In Novak v. District of Columbia, 160 F. 2d 588, the United States Court of Appeals for the District of Columbia reversed the trial court judgment, holding that the evidence of a chemist, as to an analysis of a sample of urine taken from a defendant, was inadmissible. The court stated:

“At the trial the officer testified that after he obtained the sample he labeled the flask containing it with appellant’s name, the time and place of taking it; that he wrote his own initials on the label and the next day turned the specimen over to the District Health Department laboratories.
• ‘ ‘ The court then accepted in evidence, over appellant’s objections, laboratory records of the Health Department of an analysis made by a chemist formerly employed by the department, and the testimony of another Health Department chemist concerning his later analysis, both made of a sample of urine taken from a bottle labeled with appellant’s name. The chemist, at the time of his testimony, had beside him a small bottle, labeled,, and containing a liquid which appeared to be urine. His testimony was that he made his analysis from a specimen which he withdrew from the bottle which he had beside him. The bottle was never identified or offered in evidence. According to the laboratory records, both analyses showed an alcoholic content of .24 of 1 per cent.
‘ ‘ The District of Columbia then called an expert witness who testified that in his opinion, a chemical analysis of the sample of urine showing .24 of 1 per cent alcohol indicated that the defendant was under the influence of intoxicating beverage at the time of his arrest.
“It is our holding that the laboratory records and the chemist’s testimony respecting the analysis were not properly admissible in evidence because the District of Columbia failed sufficiently to identify the sample from which the analyses were made as being that sample taken from appellant. The police officer who secured the sample was present in court and testified to the manner in which he labeled the flask containing appellant’s urine and how he placed his initials on the label. The chemist, when he testified, had beside him the bottle of urine on which he had made an analysis. But no effort was made to hand to the police officer, Avho was present in court, the bottle and chemist had used to see if he could identify it as the bottle he had labeled and initialed. There is missing a necessary link in the chain of ■ identification. The judgment is reversed and the case remanded * * *”

In the instant case, let us summarize the evidence as to whether it firmly establishes that the analysis Avas made from the specimen taken from appellant. Officer Jones testified that the specimen Avas taken in the bathroom of the jail, and that he placed a cap on it, labeled it with the name of the appellant, and left it in the room; that no other specimens were in the room at the time. He then took appellant Jones back to the booking room. From the record on cross-examination:

‘ ‘ Q. This specimen you took, 1 understand you left it in a room?
A. Yes, sir.
Q. Who was in the room Avhen you left it?
A. Nobody.
Q. Can you sAvear that the specimen this technician examined is the same specimen you allegedly took from the defendant?
A. I say I left the specimen he gave in the little room with the cap on it,
Q. You don’t know whether the technician got that one specific specimen or not?
A. I did not see him get that one, no.”

The record does not reflect who called Smith to come to the jail. Officer Jones stated that “somebody” called the chemist, and that he (Officer Jones) did not see Smith when he arrived. In other words, the officer did not turn the specimen over to Smith — or to anyone else. Smith testified that he A\ras called to the Police Station in the “early morning” of July 19 to run a urinalysis; that he found a specimen with a name on it in the bathroom of the Police Station, and he made an analysis of the urine, and thereafter prepared his report. Smith never did say who called him to come down to the.jail. From the evidence:

“Q. Mr. Smith, even though the bottle was labeled, you can’t swear that that specimen was taken from this defendant, can you?
A. No.
Q. You don’t know where it came from?
A. No.
Q. When you walked in there the bottle was sitting there? A. Yes.
Q. That is all you know?
A. Yes.”

There is no testimony that the bottle was sealed, and, of course, there was no “hand to hand” or direct transmittal of the specimen to Smith. The bottle containing the specimen was apparently not retained, and, as shown by the quoted testimony, no one could definitely testify that the speciman examined by Smith was the specimen taken from appellant. To use the language of Chief Justice Kenison, “However likely it may be that they are one and the same, the state has failed to prove it. ’ ’

There is yet another reason why the evidence of Smith was inadmissible. Ark. Stat. Ann. § 75-1031.1 (Supp. 1963) deals with presumptions arising from the chemical analysis of a defendant’s blood, urine, breath, or other bodily substance. Sub-section (C) provides, “The chemical analysis referred to in the above paragraphs shall be made by a method approved by the Director of the Arkansas State Board of Health and/or the Director of Arkansas State Police. ’ ’ There is nothing in this record to show that the chemical analysis made by Smith was carried out by a method approved by either of these officials; according to his testimony, the test was run in conformity with tests given by the Forrest City Police Department, but there is likewise no evidence that this method had been approved by either of the state officials referred to. In its brief, the state asserts, “This is no error as the record does not reflect any testimony pertaining to this issue.” We do not agree, for the burden was upon the state to establish that the test given had been approved by the Director of Health or the Director of Police. A similar requirement is prescribed in Nebraska, and in Otte v. State, 108 N.W. 2d 737, the Supreme Court held that, inter alia, it was error to admit testimony as to a blood analysis where there was no evidence that the analysis had been made according to a method approved by the Department of Health.

Appellant asserts that the court erred in giving an oral instruction, requested by the city, such instruction quoting pertinent parts of Section 75-1031.1. This was no error. In Gentry v. State, 201 Ark. 729, 147 S.W. 2d 1, we said:

“Appellant next complains because of the action of the trial court in giving Instruction No. 5 on behalf of the state. This instruction is a copy of § 3001 of Pope’s Digest on the question of self-defense. This court has repeatedly ruled that instructions which follow the wording of the statute, and are applicable to the facts in the particular case, are always proper. ”

It is finally contended that the court erred in its refusal to give appellant’s requested Instruction No. 5.

In its instruction, just referred to (75-1031.1), the court included Sub-section 3, as follows:

3. If there was at that time 0.15 percent or more by weight of alcohol in the defendant’s blood, urine, breath or other bodily substance, it shall be presumed that the defendant was under the influence of intoxicating liquor. ’ ’

Certainly, appellant was entitled to an instruction, which told the jury that the provision of Sub-section 3 was only a presumption, and was subject to being rebutted by proof on the part of the appellant. Appellant’s tendered instruction was very close to being correct, though it could have been better worded. In St. Louis I.M. & S. Co. v. Waters, 105 Ark. 619, this court disapproved the latter portion of an instruction defining a drunken condition. After removing that xoart of the instruction, the court approved the definition of drunkenness, as follows:

‘ ‘ For one to be in a drunken and intoxicated condition as defined by the law, he must be under the influence of intoxicating liquors to such an extent as to have loss of normal control of his bodily and mental faculties.”

As previously stated, the cases were consolidated for trial, and the court told the jury that all charges were based on the same set of facts and circumstances. We are unable to say that the testimony of Smith did not influence the jury in their disposition of the charges of resisting arrest and assaulting an officer, particularly since Smith testified that the alcoholic content (determined from the urine analysis) reflected that the defendant was “drunk and disorderly.” In Moore, et al v. State, 227 Ark. 544, 299 S.W. 2d 838, we said:

“Where the effect of an erroneous instruction or ruling of the trial court might result in prejudice, the rule is thát the judgment must be reversed on account of such ruling, unless it affirmatively appears that there was no prejudice. ’ ’

That language is applicable in the case at Bar.

Accordingly, because of the errors heretofore set out, the judgment (s) is reversed, and the cause (s) remanded.

       From the testimony: “Mr. Smith, according to your learning and your teaching, tell the jury what the different stages are and how they are corolated with alcohol in the urine?” A. “At the lower readings, 1.5, a man’s reflexes are supposed to be slowed enough that it will affect his driving, in other words, he is just where he thinks he can have a good time, he is feeling pretty good; from 2.5 to 3.5 he is pretty well what we call or consider drunk.” Q. “What you call drunk?” A. “Yes, sir.” Q. “Over 3.5 what is his condition?” A. “The literature says he is drunk and disorderly and at 5 or 6, he is out.”

       If Officer Jones hand handed the specimen to the jailer, and he, in turn, had handed it to Smith, the chain would have been complete. To make the identification even more positive, on trial, Jones and the jailer, respectively, could have identified the bottle as the one handled by them.


author: Ed. F. McFaddin, Associate Justice.

text:
    Miller v. Southern Machine & Iron Works
    5-3499
    388 S. W. 2d 391
    Opinion Delivered March 29, 1965.

      Howell, Price & Worsham, by Dale Price, for appellant.

      Wright, Linclsey, Jennings, Lester & 'Shults, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case; and the question is whether the claim for death benefits and funeral expenses was filed within proper time. The Referee, the Full Commission, and the Circuit Court held that such claim was barred; and the claimant prosecutes this appeal.

Myron P. Miller (husband of the claimant-appellant, Mrs. Ruth Miller) was employed by the Southern Machine and Iron Works, and on September 5,1961, he suffered a heart attack while at work. He was promptly hospitalized but died in the hospital on October 5,1961. The death certificate showed that he died as a result of the heart condition. Mrs. Miller’s claim “for death benefits and funeral expenses” was filed on June 13, 1963; and the employer promptly and duly made the plea of limitations based on the provisions of Ark. Stat. Ann. § 81-1318 (a) (3) (Repl. 1960), the germane portion of which reads:

“A claim for compensation on account of death shall be barred unless filed with the Commission within one year of the date of such death. ’ ’

In the hearing before the Refree, the claimant added to the death claim the additional claim for temporary total disability and for medical and hospital expenses from September 6, 1961, to October 5, 1961, the date of death. The applicable statute for such claim is Ark. Stat. Ann. § 81-1318 (a) (Repl. 1960), the germane portion of which reads:

“A claim-for compensation for disability on account of an injury . . . shall be barred unless filed with the Commission within two years from the date of the accident. ’ ’

The Referee disallowed both claims; the Full Commission held that the death claim was barred by the one .year statute but that the disability claim was governed by the two year statute and could still be heard. The claimant appealed from the holding of the Full Commission that the death claim was barred; the Circuit Court affirmed the Commission; and Mrs. Miller brings this appeal, insisting that the death claim is not barred since the disability claim is not barred. Her able counsel cite Ark. Stat. Ann. § 81-1318 (b) (Repl. 1960), which reads:

“In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one year from the date of the last payment of compensation, or two years from the date of accident, whichever is greater. ’ ’

This last quoted section is called the “Additional Compensation Section” and from that section Mrs. Miller argues that she has a pending claim before the Commission for disability benefits from September 6th to October 5, 1961, and if such claim should be allowed and benefits paid to her, she would then have one year after the date of the last payment on such claim, within which to file the death claim. In other words, her position is that the filing of the temporary total disability claim within two years of death was timely; and that if such claim be allowed and compensation paid her, then she would have one year after the date of the last payment under such claim in which to file her claim for death benefits and funeral expenses. She insists that we have frequently held that if there he any doubt as to which of two or more statutes of limitations applies to a particular action or proceeding, and it is necessary to resolve the doubt, it will generally be resolved in favor of the application of the statute containing the longer limitation period, citing Jefferson v. Nero, 225 Ark. 302, 280 S.W. 2d 884, and Reynolds Metals v. Brumley, 226 Ark. 388, 290 S.W. 2d 211.

We are unable to agree with the.appellant. What she is attempting to do is to treat a pending claim for temporary compensation as a payment of compensation, and thereby, put the death benefit claim at the end of the additional compensation claim. The section on additional compensation is applicable only when a claimant had received compensation and then sought additional compensation. That is not the situation here.

The plain wording of Ark. Stat. Ann. § 81-1318 (a) (3) (itepl. 1960) is: “ A claim for compensation on account of death shall be barred unless filed with the Commission within one year of the date of such death. ’ ’ That is as particular and specific a statute of limitation as it is possible for one to be. In Scott v. Greer, 229 Ark. 1043, 320 S.W. 2d 262, we were asked to decide which of two provisions in a statute was applicable, and we quoted our earlier cases to this effect: “Where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions will be given effect as clearer and more definite expressions of the legislative will. ’ ’ The same general principle was applied in Kimpel v. Garland Anthony, 216 Ark. 788, 227 S.W. 2d 932, in which one death claim was held filed in time and another was held filed too late. Our specific statute of limitations regarding a death claim is too clear to admit of dispute.

The Pennsylvania Court had a situation like this before it in Segal v. Segal, 191 A. 2d 858, and said: “The claim filed by the widow in the death case was filed beyond the time allowed by statute. ‘ The legislature made the filing of the claim petition within the specified time an express condition of the right to obtain an award of compensation and intended that the failure so to do should operate as an absolute bar of the right. ’ Thorn v. Strawbridge . . . 155 A. 2d 414.” In some States there are statutes which would tend to support the' delay of the appellant in this case; but our statute is too clear to admit of dispute. Unfortunately, Mrs. Miller failed to consult an attorney in time to file the death claim; and all she may now pursue is the claim for temporary total disability and medical and hospital benefits, just as determined by the Commission.

Affirmed.

       The death certificate gave the cause of death as “coronary thrombosis with recent myocardial infarct.”

       There was a prior heart condition date of April 1961 that influenced the Referee’s Opinion.


author: George Rose Smith, J.

text:
    Tullis v. Minchew
    5-3488
    388 S. W. 2d 393
    Opinion Delivered March 29, 1965.

      Clifton Bond, for appellant.

      Coleman, Gantt, Ramsay <& Cox, Smith & Smith, for appellee.
   George Rose Smith, J.

This is an appeal from a probate court order finding that the appellant, Ezra Tullis, was in fact mentioned in the will of his grandfather, J. M. Minchew, and is therefore not entitled to share in the estate as a pretermitted heir. The appellant contends that the trial court erred in concluding that a reference in the will to “ J. R. Tullos ’ ’ actually meant the appellant, Ezra Tullis.

Minchew was survived by two sons, a daughter, and the appellant, the son of another daughter who predeceased the testator. There were other grandchildren, but Ezra is the only one who should have been mentioned in the will, for the parents of the others were living at the testator’s death. Ark. Stat. Ann. § 60-607 (Supp. 1963).

By the will the bulk of Minchew’s estate Avas left in equal parts to his two sons. In effect Minchew disinherited his living daughter, Dolly WincheAV Tullis (whose name Avas misspelled as ‘ ‘ Tullos ”), by leaving her only fifty dollars. This is the provision giving rise to the present dispute : “ I devise and bequeath unto my grandson, J. It. Tullos, the sum of Twenty-five ($25.00) Dollars to be paid out of the proceeds of my estate. ’ ’

We think the trial court Avas right in finding that the reference to J. R. Tullos Avas intended to mean Junior Tullis. Ezra’s father’s name was Ezra Benjamin Tullis. Although there is some conflict in the evidence, the preponderating testimony shows that Ezra Avas often called “Junior” by the members of his family. He himself admits that he Avas occasionally so called, but he denies that his grandfather, the testator, ever called him Junior. That there is no other testimony by members of the family upon the latter point is understandable, for Ezra saw his grandfather rather infrequently and not at all duing the last five years of his life.

The attorney who prepared the will testified: “ [H]e Avanted to leave his grandson, the son of his dead daughter, $25.00 ... I asked him Avhat his name Avas, and he said it was Junior Tullis. And I asked him how to write it and he said, ‘Write it capital J. capital R. Tullis.’ So I Avent ahead and prepared the instrument.” (In the record there are periods after the capital J and the capital R, but it is possible that they were inserted by the court reporter.)

In cases similar to this one, Avhere there is uncertainty or ambiguity in the designation of the beneficiary of a Avill, we have held that extrinsic evidence is admissible for the purpose of identifying the intended beneficiary. McDonald v. Shaw, 81 Ark. 235, 98 S.W. 952; Duensing v. Duensing, 112 Ark. 362, 165 S.W. 956. The attorney’s testimony, to which there was no tenable objection in the court below, convinces us that Minchew meant to disinherit this appellant when he left twenty-five dollars to J. R. Tullos. It cannot be doubted that the testator had one of his grandchildren in mind when he used the language in the will, “my grandson, J. R. Tullos.” There was in fact no grandson whose initials were J. R. when the will was drafted in 1946. True, there is some evidence that the appellant had a twin .brother named Julian Robert Tullis, but it is conceded that this infant died a few hours after his birth in 1925. In view of all the circumstances we cannot say that the probate court’s decision is against the weight of the evidence.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    The Housing Authority of the City of Searcy v. Angel
    5-3526
    388 S. W. 2d 394
    Opinion Delivered March 29, 1965.

      Lighile é Tedder and Darrell Rickman, for appellant.

      Van Chapman, for appellee.
   Sam Robinson, Associate Justice.

Appellant, The Housing Authority of the City of Searcy, filed this action to acquire by eminent' domain a portion of two lots in Searcy; one belonging to appellees O. H. and Fay Angel, the other to appellees M. H. Phelps and wife. A jury allowed the property owners $2,500 as damages to the remaining portion of each lot. The Housing Authority has appealed contending that the owners were not qualified to express an opinion as to value, and that there is no substantial evidence to support the verdicts.

Both Mr. Angel and Mr. Phelps testified that the difference in the value of their property before and after the taking amounted to more than $2,500,. but appellant contends that such evidence given by the property owners is not admissible in evidence, and is not sufficient to sustain the verdicts.

Mr. Angel is 68 years of age and has lived on his property a little over 20 years. He testified that the property was worth between $16,000 and $17,000 before the taking; that he knows the value after the taking to be $10,000. Prom the record it appears that he is a reasonably intelligent person. We cannot say that a property owner who has lived on a piece of property for such a long time is not qualified to give his opinion as to the value of the property both before and after a portion hás been taken in a condemnation proceeding, and in this case we cannot say that such evidence is not substantial as to the damages sustained.

What we have said regarding the Angel testimony is applicable also to the testimony given by Phelps. He had lived on his property 35 years and stated that he had been damaged $3,000 by the taking.

In Arkansas State Highway Commission v. Muswick Cigar & Beverage Co., 231 Ark. 265, 329 S.W. 2d 173, we said: ‘ ‘ This court has on numerous occasions affirmed the right of the owner of property ... to testify as to its value. In the case of Jonesboro, Lake City & Eastern Railroad Company v. Ashabranner, 117 Ark. 317, 174 S.W. 548, we find this statement: ‘Plaintiff resided on the land and was familiar with the conditions, and we think the court was justified in allowing her to state her opinion of the extent of the injury to the land and the depreciation in the value thereof. ’ ’ ’

We further said in the Muswick case, citing Arkansas State Highway Commission v. Carder, 228 Ark. 8, 305 S.W. 2d 330, that a verdict “will he set aside as excessive only when it is not supported by proof, or when it is so excessive as to indicate passion, prejudice or incorrect appreciation of the law applicable to the case.” Here, we cannot say the judgments arc so extreme as to call for a reversal.

Affirmed.


text:
    Polk v. Polk
    5-3508
    388 S. W. 2d 385
    Opinion Delivered March 29, 1965.

      James P. Baker, Jr., J. Patrick Reilly, for appellant.

      David,Solomon, for appellee.
   Jim Johnson, Associate Justice.

This case concerns a petition to change custody of a child.

On May 9,1959, appellant Eva Burke Polk (now Crawford) filed suit for divorce against appellee Edwin M. Polk, Jr., in Phillips Chancery Court. Into the final decree granted June 16, 1959, was incorporated a separation agreement executed by the parties which gave appellant custody .of their two minor children, Carole Jane, then fifteen, and John Charles, then five years of age. Subsequently Carole Jane came of age and moved from Helena. On May 1, 1964, appellee filed a petition in the divorce case case seeking custody of John Charles “during reasonable times and especially during the summer months.” A hearing was held on June 16, 1964, at which time the court heard testimony of the parties and their witnesses, and later talked to the hoy (then ten or eleven) in chambers. In its order of July 10,1964, the court found that there was ‘1 sufficient change of circumstances concerning custody, ’ ’ and, inter alia, granted appellee custody during the months of July and August each year and spelled out visitation rights for both parties.

For reversal appellant contends that the chancellor’s decision to modify the original custody decree, is not supported by the preponderance of the evidence.

Review of the record reflects that after the divorce appellee moved into his parents’ home less than a block from appellant’s home. During the succeeding four years the children had the run of both houses and had access to either parent virtually at will, a remarkably fluid and uncritical environment lacking the divisiveness usual following a divorce. Then appellant remarried. There was testimony that after the remarriage Carole Jane moved into appellee ’s home and that appellant for a while refused to give appellee visitation rights with John Charles. Visitation of one day a week was worked out between the parties with the help of their attorneys. (There is no intimation in the record that appellant’s husband has anything less than a real affection and interest in the welfare of John Charles.) After a few more months, appellant moved some twenty miles away to Marianna. The free and easy visitation, already strained, was now impossible at a twenty-mile distance, other than the agreed one day a Aveek, at a time when the boy was reaching an age where he Avanted the counsel and companionship of his father in masculine activities and sports. Since divorce is at best a poor situation in Avhich to raise children, where custody of children is concerned and the recorded testimony might appear to be, as here, in equipoise, Ave give great weight to the conclusions of the chancellor Avho has the opportunity to observe the demeanor of the witnesses on the stand and to hear and evaluate their testimony. The state of the record being thus, Ave therefore affirm the chancellor’s decree finding sufficient change of circumstances to justify this minor change in custody.


text:
    Stockton v. State
    5127
    388 S. W. 2d 382
    Opinion Delivered March 29, 1965.

      Sam L. Anderson, for appellant.

      Bruce Bennett, Atty. Gen., By Jack L. Lessenbery, Chief Asst. Atty. Gen., for appellee.
   Frank Holt, Associate Justice.

The appellant was charged by an information with the crime of second degree murder as a result of the death of his wife. A jury found him guilty and assessed his punishment at nine years in the State Penitentiary. From the judgment based upon this verdict the appellant appeals, relying upon three points for reversal.

Appellant’s first contention questions the sufficiency of the evidence especially with reference to the required element of malice. On this appeal we must review the evidence in the light most favorable to the appellee and if there is any substantial evidence to support the verdict of the jury it must be sustained. Baker v. State, 237 Ark. 862, 376 S.W. 2d 673.

At*about 5 P.M. on the day of the alleged murder the officers responded to appellant’s call to come to his residence. They found appellant’s wife sitting in a chair partially covered by a quilt. Appellant was in a drunken condition and repeatedly said that a George Andrews had stolen some diamonds. He urged his wife to tell the officers about it. At first she refused to answer his entreaties, however, she finally said: “He didn’t steal them, I gave them to him. ’ ’ The officers left advising the appellant to secure a warrant of arrest. About four hours later, or 9 P.M., the officers responded to another call from an unknown source to repeat the investigation at this residence. Upon arrival they found appellant very drunk and he continued his complaint that certain rings were missing. When queried as to the whereabouts of his wife, appellant replied that she was in an adjoining room and undressed. Appellant went into this room and was overheard talking to his wife about the missing jewelry. The officers had observed that the house showed signs of violence. The Venetian blind had been pulled off the back door, pieces of furniture were broken, and the house generally was is a state of disorder. The officers also noted that appellant’s pants and shoes were bloody. Upon overhearing the appellant talking to his wife about the jewelry,, they looked into the room and discovered his wife lying on the floor in a pool of blood. She was groaning and appeared to be unconscious. She died within a few hours after being removed to the hospital. The appellant refused to make any statement except to consistently maintain that he could not remember what happened. No weapon was ever discovered. As a witness, appellant testified on cross-examination that the diamonds would “ go ” to him.

According to the medical evidence, appellant’s wife died as a result of a brutal beating. She had been beaten so severely that her hands were swollen, the top of one hand being denuded, one ear was almost torn off, her face was bruised and very swollen, there was caked or dried blood in both nostrils, the temples on both sides were ‘1 soft and boggy,” there was a deep crease or wound behind one of the ears, and her ribs were broken on both sides with multiple contusions on her chest, sides and arms. According to the medical evidence these injuries appeared to have been administered with a club, hand or foot and her death resulted from a recent beating. The appellant was sixty-four years of age and his wife, to whom he had been married twelve years, was eighty-nine years of age and infirm.

Appellant erroneously argues that there is insufficient evidence of malice since no weapon was ever found. It is not material as to the manner of the killing further than to show the disposition of mind. Ark. Stat. Ann. § 41-2202 (Kepi. 1964). Our statutes also provide that when no considerable provocation appears or all the circumstances of a killing manifest an abandoned and wicked disposition, then malice shall be implied. Ark. Stat. Ann. § 41-2204 (Kepi. 1964); Taylor v. State, 82 Ark. 540, 102 S. W. 367; Clardy v. State, 96 Ark. 52, 131 S.W. 46. Certainly the cruelty and brutality manifested in the killing of the deceased is sufficient in the case at bar to supply the inference of malice. We have upheld convictions when the accused aggressor used only his fists. McGaha v. State, 216 Ark. 165, 224 S.W. 2d 534; Morris v. State, 226 Ark. 472, 290 S.W. 2d 624. ee, also, 22 A.L.R. 2d 854; 26 Am. Jur., Homicide, § 306.

The use of the fists or the act of stomping can be most deadly, especially when the blows are often repeated and applied to vital and delicate parts of the body of a defenseless person. We think the evidence in the case at bar is more than ample to sustain the jury’s verdict of second degree murder.

Appellant next contends that the court erred by failing to instruct the jury in regard to circumstantial evideuce. We do not find that any objection was made to the instructions given and, further, appellant did not request an instruction on circumstantial evidence. It was the duty of the appellant to offer a correct instruction covering his theory of the case. Hays v. State, 219 Ark. 301, 241 S.W. 2d 266; Baker v. State, 215 Ark. 851, 223 S.W. 2d 809.

Appellant further urges for reversal that the trial court erred in permitting the prosecuting attorney to argue certain matters during the closing arguments. The record shows only one occasion where an objection was made by appellant. The trial judge admonished the jury that it should consider only the evidence and disregard any opinion advanced by the attorneys in their argument. The appellant apparently was satisfied since no exception was noted following this admonition. In less than a capital offense it is necessary that both an objection and an exception be noted to an adverse ruling in order to preserve a point for review upon appeal. Hicks v. State, 225 Ark. 916, 287 S.W. 2d 12; Hardaway v. State, 237 Ark. 966, 377 S.W. 2d 813.

Finding no errors the judgment is affirmed.


text:
    City of El Dorado v. McHenry.
    5-3520
    388 S. W. 2d 554
    Opinion delivered April 5, 1965

      J. V. Spencer, Jr., for appellant.

      Crumpler é O’Connor, Jerry M. Watkins, for appellee.
   Carleton Harris, Chief Justice.

Appellant, City of El Dorado, owns and maintains Rowell Street, which is adjacent to property owned by appellees, H. W. McHenry and R. B. Wilson. McHenry and Wilson operate the Wright-King Oldsmobile Agency on property here under discussion. There is, beneath Rowell Street, and beneath the Wright-King Oldsmobile building, a drain encased in tile, carrying water from the south to the noth part of the city, and eventually dischaging into a creek there. This'drain was installed under the land now owned by appellees in 1948 or 1949, and the installation was made by one Milton Green (wbo, at that time, owned the property on which the building is now located) and the City of El Dorado. Green provided the tile, and the city provided the equipment and labor, and made the actual installation. Green subsequently sold the lot to King, and the latter constructed a brick and steel building on the premises. King sold the building to appellees in 1960. This property fronts on Rowell Street, which is paved with asphalt, and improved with curbs and gutters. Proper maintenance of this street has been difficult, because of repeated cave-ins, evidently caused by the type of soil under the street. Appellees have likewise experienced difficulty in that the floor of their building has cracked and settled during the last few years. Apparently the drain tile was laid in a bed of quicksand, and the tile has broken in places, and leaked, causing the soil under the building to wash away.

Appellees requested the assistance of the city to repair the drain under the building, but the city refused the request. In July 1963, a suit was instituted against the city, wherein appellees sought to establish that appellant had installed the drain, and was responsible for the maintenance thereof. Appellant denied responsibility, but the case was never tried, the parties agreeing upon a consent decree.' This decree recited that the City of El Dorado “owns no interest in the storm sewer located upon the land described * * * and * '* * is not responsible for the maintenance of said storm sewer; * * Thereafter, the City Council received information that appellees were fixing to block the drain to prevent the water from flowing under their building, and the Council instructed the City Attorney to advise appellees that they were not to obstuct or ‘ ‘ stop up ’ ’ the drain in any manner. Nonetheless, appellees poured sand and cement into the drain, preventing the flowage of water under the building, and on to the north. The city then instituted suit, seeking an injunction to prevent appellees from obstructing the flow of the water, and further asking that appellees be required to maintain the drain in a good state of repair. The' court granted a temporary restraining order, hut on final hearing dissolved this order, and dismissed the city’s complaint for want of equity. From the decree' so entered, appellant brings this appeal.

For reversal, the city contends that appellees have obstructed a natural water course, and the court erred in refusing to grant the injunction; further, that, even if the drain were an artificial water course, its use, for a long period of time, has the same legal effect as though it were a natural water course. Appellees contend that the city cannot properly assert any rights in the drain because of the consent decree heretofore mentioned, and further, that the city did not sustain the burden of proof necessary to establish the existence of a natural water course. It is appellees’ theory that the water, flowing in the drain, was only surface water, and they assert that the case is controlled by Levy v. Nash, 87 Ark. 41, 112 S. W. 173. Furthermore, it is contended that the city did not show that appellees’ act of blocking the drain had been the cause of any damage complained of.

Proof on the part of appellant was to the effect that a natural water course had originally started some distance south of the property here in question, and had run somewhat east of what is now Northwest Avenue. This drain, according to appellant’s contention, had been fed by springs, though one of the two witneses, who testified on behalf of appellant, stated that these springs ceased to flow altogether in the ’20’s. Appellees’ witnesses testified that the only flow of water in the vicinity of the property was drainage from rainfall or surface water. We see no need to detail the proof relative to whether the drain constituted a natural water course, for we do not consider that fact to be controlling.

Likewise, under our reasoning, appellant’s second point is not germane to the main issue.

Appellees’ proof was to the effect that only surface water was involved, and they contend that this case is governed by Levy v. Nash, supra, where the court held that the owner of a city lot has a right to prevent the flow of suface water upon his lot by filling up a ditch, by elevation, or by acting in any other manner that will protect his property against surface water from an adjoining lot. However, as stated, we see no need to pass upon this question.

Admittedly the city installed the drain in question, which is now under appellees’ place of business. In doing so, the city diverted the flow of water (surface or otherwise) from its natural route. Whether this was done at the request of the person who owned the property at that time (as contended by appellant) is really immaterial. The fact remains that this defective drain was installed by the city. While the city contends that it owns no interest in the drain under the building, and is not responsible for the maintenance of such drain (as entered in the earlier consent decree), it is apparent that it (the city) is asserting an interest of some nature, else it would not have sought injunctive relief. In effect, the city is asserting a right to use the drain under the building. The municipality maintains the drain under Rowell Street, and up to the point where it enters appellees ’ property. In contending that the appellees have no right to obstruct it, the city is, in effect, contending that it has a right to keep the drain open, i.e., that it (the city) has an easement.

As previously stated, appellees purchased this property in September 1960. There is absolutely no evidence in the record that appellees, or either of them, had any knowledge that this drain was under -the building, or that the city was asserting any right whatever in connection with the building. In 17A Am. Jur., under ‘ ‘ Easements,” Section 156, Page 761, the general rule is stated as follows:

“It has often been said that in order to affect the purchaser of a servient estate the easement if unrecorded, must be one that is apparent as well as necessary and continuous, or the marks of the servitude must be open and visible. Accordingly, it is held that if the servitude cannot be discovered by an inspection of the premises, the purchaser is not charged with notice of its existence except in so far as he may be charged with constructive notice under the recording laws. On the other hand, the proposition that a purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises is sound beyond question. Normally, since an easement implied, upon the severance of a tract, from an existing use is a physically obvious servitude, a purchaser of the servient estate will be charged with notice of the easement.
“In this connection, the fact that an easement is an ‘apparent easement’ is of importance in charging a purchaser of the servient estate with notice of such easement, and ‘ apparent easements ’ have been defined in this respect as those which may be discovered upon reasonable inspection. In regard to charging with notice the transferee of the servient estate, apparent easements are not only such' as are visible or must necessarily be seen, but such as may be seen or known on a careful inspection by a person ordinarily conversant with the subject. Examples of apparent easements include canals and ditches, chimney flues, ferry landings, light and air, pipes, poles and wires, private ways, privies, supports of encroaching structures, stairways, and water rights. On the other hand, an underground drain or pipe is not an apparent servitude unless there are physical conditions on the surface which disclose its existence."

In Hannah v. Daniel, 221 Ark. 105, 252 S. W. 2d 548, this court, quoting 17 Am. Jur., Section 130, Page 1018, stated:

“A purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises.”

In Butterworth v. Crawford, 46 N.Y. 349, 7 Am. Rep. 352, the court held that an underground drain is not an apparent servitude or easement. As stated, there is nothing in the record that indicates that appellees had any knowledge of the tile drain under the building; there is no evidence that anyone told them about it; there is no evidence of any recorded instrument to put them on notice. Certainly, appellees could not be expected to know that a tile drain was buried six to eight feet under their property.

We also agree with appellees that appellant’s evidence did not establish the fact that damage to Rowell Street had been occasioned by the plugging of the drain, for the evidence reflects that there had been a number of cave-ins while the drain was still open. The Public Works Director for the City of El Dorado testified that quicksand is three feet deep under the edge of the street; while the sewer tile, according to the witness, is six to eight feet below the surface of the street.

It would appear that this drain, instead of passing under appellees’ building, could be carried down Northwest Avenue, which is actually nearer the location of the alleged natural drain than the pipe under the building. According to one of the engineers, the cost, to run the sewer down Northwest Avenue would be less than the expenses incurred in maintaining the present drain.

Finally, we think the equities lie with appellees. As stated in 43 C.J.S., “Injunctions,” Section 30, Page 462:

“Ordinarily, on application for an injunction, the court will in the exercise of the wide discretion with which it is vested take into consideration the relative inconvenience or injury which the parties will sustain by the granting or refusal of the application for an injunction. The rule is laid down in a large number of decisions that, when the issuance of an injunction will cause great injury to defendant, and will confer no benefit or very little benefit in comparison on complainant, it is proper to refuse the injunction, * *

Unquestionably, the damage to the building (if the drain is continued) would be such as to completely ruin the premises for the use of appellees in their business.

We are unable to say that the Chancellor’s findings were against the preponderance of the evidence.

Affirmed.

       The Chancellor did not render an opinion, and the decree only dismisses the city’s complaint. We do not know what facts he considered to be controlling, but it might be said that we would be unable to find by a preponderance of the evidence, that the court erred in not holding that the drain was a natural water course.

       Of course, the city could use it power of eminent domain in condemnation proceedings, but it has not elected to do so.

       Mr. McHenry testified that he did not learn of the drain until several months after purchasing the building.

       Emphasis supplied.

       Emphasis supplied.


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    Shiflett v. Scott County Poultry Co.
    5-3517
    388 S. W. 2d 552

      Donald Poe, for appellant.

      Daily & Woods, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case. Appellant Fred A. Shiflett was employed by the appellee, Scott County Poultry Company. On August 14, 1962 while at his work on a wet slippery floor his feet slipped, and to keep from falling he grabbed a nearby counter and received a strain in the lumbosacral region of his back. The present claim is for temporary total disability.

The Referee heard the claim on February 26, 1963, and disallowed it after finding that the claimant had failed to establish any right to compensability. There was an appeal to the Full Commission, at which the claimant again testified on February 24, 1964. The Full Commission also disallowed the claim on the ground that the claimant had failed to establish that he suffered any temporary total disability as a result of his employment by the Scott County Poultry Company. The Circuit Court affirmed the Commission and the claimant prosecutes this appeal. We have made a most careful study of the entire record and have concluded that there is substantial evidence to sustain the finding of the Commission ; so we must affirm the Circuit Court under our well established rule. J. L. Williams & Sons v. Smith, 205 Ark. 604, 170 S. W. 2d 82; Rannals v. Smokeless Coal Co., 229 Ark. 919, 319 S.W. 2d 218.

The testimony of the claimant and his witnesses was to the effect that the claimant was in the Navy of the United States from June 1943 to December 1945, and that at the time of his discharge he had a 10% disability rating due to arthritis; that later this disability rating" was increased to 20%; then to 40%; and since 1955 the claimant’s disability rating has been 50%. After the Navy service the claimant worked as a bus and mail driver for the Ft. Smith Interurban Line, delivering" mail and passengers from Mansfield to Ft. Smith and return. In 1962 he left that employment and became custodian in the Federal Building in Ft. Smith, where he worked for approximately six months, until a disagreement arose with his foreman. He began work for the Scott County Poultry Company in June 1962 and worked regularly until August 14, 1962, when he received the lumbosacral strain, as previously mentioned. The next day the company did not work and the claimant remained in bed. On August 16th, the claimant went to Dr. Jenkins, who treated him on three different occasions and released him to go back to work. He worked 14 hours and 45 minutes and had to quit due to pain. His foreman sent him to Dr. Wright for examination and treatment. Dr. Wright’s reports on the condition of the claimant will be later mentioned, as also will be Dr. Wright’s testimony. At the time of testifying before the Referee —on February 26, 1963 — the claimant was able to milk two cows each day. On February 24, 1964 the claimant testified before the Full Commission that since March 18, -1963 he had been driving a bus and handling mail at weekly wages of $68.00, even though he still suffered pain in his lower back and hip.

We come now to the reports of Dr. Wright to the insurance carrier on the condition of the claimant. On September 4, 1962, Dr. Wright reported that the claimant had received a lumbosacral strain on August 14th and had been treated by Dr. Jenkins until August 25, 1962, when claimant first came to Dr. Wright. Dr. Wright reported: “Patient was able to resume regular work on August 20, 1962.” The claimant visited Dr. Wright’s office on August 25th, September 1st, September 7th, and September 10th, for diathermy treatments; and on September 10th Dr. Wright advised the insurance carrier that the claimant was capable of doing the same work as before the injury and had been pronounced as able to resume work as of August 20, 1962. On February 9, 1964, the claimant’s attorney had the claimant examined by Dr. Kenneth Jones; and Dr. Jones’ report is in the record. While it revealed a degenerative disc disease, it did not express any opinion as to the condition being connected with claimant’s employment.

It is true that in his testimony before the Referee Dr. Wright was not as positive in his diagnosis and prognosis as he was in his reports, but he did not disavow the reports or say that they were incorrect. So with the record in this condition, the Commission found that the claimant had failed to prove any temporary total disability after August 20, 1962. The appellant insists that the mere fact that he had a preexisting disability (arthritis) did not, in itself, defeat recovery for his lumbosacral strain, and that if the lumbosacral strain aggravated his arthritic condition then he should recover compensation. The claimant is correct as to the law. Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961; Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489; and Wilson Hargett Co. v. Holmes, 235 Ark. 698, 361 S. W. 2d 634. But these general principles of law do not supply the appellant’s deficiency in proof. The Commission found that he failed to prove any temporary total disability after August 20, 1962; and we cannot say that the Commission’s findings are without substantial evidence to support them, in view of the reports of Dr. Wright, as previously mentioned.

Affirmed.

       The Workmen’s Compensation Commission stated in its opinion: “The question of permanent partial disability is not now before the ■Commission.”

       Here is Dr. Jones’ full report:
      “As requested, on February 9,1964 the above patient was admitted to Memorial Hospital where on February 10, 1964 a myelographic examination was carried out. This examination revealed a marked filling defect in the midline and to the right side at the last mobile segment. A diagnosis in this instance of degenerative lumbar disc disease at the level of the last mobile interspace of the spine would be correct.
      “In view of the fact that this patient has suffered symptoms of this disease for a period of one and one-half years and I would anticipate that the future picture will be that of the past, I would anticipate that surgical intervention would reduce the patient’s discomfort and permit him to be ambulatory in much more satisfactory manner. However, in view of this patient’s age and the one and one-half years duratoin, I am skeptical that surgical intervention would return this patient to an arduous type of employment. I am of the opinion that these factors should be weighed carefully by the patient and all persons involved prior to surgical intervention.”