author: J. Fred Jones, Justice. JOHN A. Fogleman, Justice,

text:
    Jack SAXON v. Arthur F. PURMA
    73-265
    508 S.W. 2d 331
    Opinion delivered April 29, 1974

      Coffelt, Burrow & Sawyer, for appellant.

      Davis Duty, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Jack Saxon, former sheriff of Benton County, from a circuit court judgment rendered against him by default in favor of the appellee, Arthur F. Purma, on Purma’s motion to tax as cost the rental value of land for the storage of mobile homes levied on by Saxon under a circuit court judgment in which the Commissioner of Revenue was the plaintiff and Brown Enterprises, d/b/a Homestead Mobile Fiomes, was the defendant.

The Commissioner of Revenue obtained a judgment against Brown Enterprises, d/b/a Homestead Mobile Homes, Rogers, Arkansas, and caused a writ of execution to issue on the judgment. The writ was placed in the hands of Sheriff Saxon and he levied the execution on a number of mobile homes belonging to the defendant, Brown Enterprises. The appellee in the case at bar was not a party to the original action, but on October 11, 1972, he and Mrs. Purma filed a motion in the original action designated “Motion to Tax Costs.” They alleged in their motion that they are the owners of a tract of land in the City of Rogers; that on January 12, 1972, the plaintiff, Commissioner of Revenue, caused a writ of execution to be issued on a judgment obtained by the Commissioner against Brown Enterprises; that said writ was duly issued by the court and placed in the hands of the Benton County sheriff and was subsequently on January 24, 1972, levied by the sheriff upon fifteen mobile homes, together with office furniture. The petitioners then alleged that in levying the execution the sheriff took possession of the mobile homes, orally contracted with the petitioners to place the mobile homes on a portion of the petitioners’ property, where they remained until August 9, 1972. The petitioners alleged that no rental fee had been settled upon by them and the sheriff at the time of the alleged agreement, but that on August 16, 1972, they submitted to the sheriff of Benton County and the Commissioner of Revenue a formal claim and bill for $2,756 as a reasonable rental fee of $1.00 per day per unit. They alleged that both the sheriff and the Commissioner of Revenue had failed and refused to pay the claim, and that the petitioners were entitled to have said claim assessed as proper costs in the action. The petition then prayed as follows:

“WHEREFORE, petitioners pray the court to assess and tax their claim of $2,756.00 as costs in the above case, jointly and each of them severally, against the plaintiff and the Sheriff of Benton County and order the same paid to the petitioners forthwith."

Notice of the motion was served on the parties by ordinary mail.

On October 25, 1972, the appellant Jack Saxon, as sheriff of Benton County, filed a motion to quash the motion filed by Mr. and Mrs. Purma on the grounds that it was actually a complaint stating a separate cause of action separate and distinct from the cause of action in which it was filed, and that service was not obtained as provided by law.

On November 2, 1972, the Commissioner of Revenue filed a response to Purmas' motion to tax costs in which he admitted he caused an execution to be issued on his judgment on January 12, 1972, but did not know when the execution was placed in the hands of the Benton County sheriff or the date the execution was levied. He denied the other allegations in the motion but admitted that both he and the sheriff had failed and refused to pay Purmas’ claim. He prayed that the motion to tax costs be dismissed and as a counterclaim against the Purmas, he alleged that they agreed the property could be stored on their premises without cost for a reasonable time, and agreed, through their attorney, that they would assume responsibility for the safety of the property. He then alleged that the property had been damaged in the amount of $10,000, for which he prayed judgment. The Commissioner also cross-complained against Westinghouse Credit Corporation, who claimed a lien on the property, and Charles Tudor as trustee in bankruptcy of the original defendant Brown Enterprises, alleging that on March 15, 1972, he was served with a copy of Notice of First Meeting of Creditors in the matter of Brown Enterprises, Inc., bankrupt under order dated March 14, 1972, together with the usual restraining order. He alleged that any sum deemed to be owing for storage before April 27, 1972, was the responsibility of the trustee in bankruptcy since until that date, the property was in the constructive possession of said trustee.

On November 7, 1972, Mr. and Mrs. Purma filed a reply to the Commissioner’s response and counterclaim stating that they had already pleaded the entry of judgment for the plaintiff Commissioner of Revenue in the original action; the issuance of execution thereon on or about January 12, 1972; and the levy of the execution by the Benton County sheriff on the mobile homes and miscellaneous office equipment “located upon petitioners’ land on or about January 24, 1972.” The petitioners then denied in their reply that they ever agreed that the storage of the homes upon their land should be without cost, or that they ever assumed responsibility for the property. The petitioners renewed their prayer as follows:

“WHEREFORE, petitioners renew their prayer for relief as prayed in their original Motion to Tax Costs and further pray that plaintiff’s answer and counterclaim against the petitioners be dismissed.”

No action was taken on Saxon’s motion to quash filed on October 25, 1972, but on the same day a summons was issued in the original cause and served upon him on November 8, 1972. The summons was directed to the coroner of Benton County and commanded him to summon “Jack Saxon, Benton County Sheriff, to answer in twenty days after the service of this summons upon him a Motion to tax costs filed against Commissioner of Revenue in the Benton County Circuit Court by Arthur F. Purma and Ruth W. Purma. Petitioners, and warn him that upon his failure to answer, the Complaint will be taken for confessed; and you will make due return of this Summons within twenty days after the date hereof. ” (Emphasis added).

On January 4, 1973, Westinghouse Credit Corporation responded to the Commissioner of Revenue’s cross-complaint. It admitted that the order granting application to reclaim property and ordering sale of property was filed on April 27, 1972, in the United States District Court for the Western District of Missouri, but denied that it was responsible for any delay which may have occurred prior to the date of filing said order.

On January 30, 1973, the Commissioner of Revenue filed a motion to dismiss the motion to tax costs on the ground that the “costs in this action are to be taxed as costs in the bankruptcy action pending in Federal Court and that court has exclusive jurisdiction over this question." On February 13, 1973, the trial court granted the Commissioner's motion in language as follows:

“On the 13th day of February, 1973, the Commissioner of Revenue’s motion for dismissal for lack of jurisdiction came on for hearing before this court. After argument and submission for [sic] briefs, it was found, in so far as the Commissioner of Revenue for the State of Arkansas is concerned, exclusive jurisdiction of the subject matter lies in bankruptcy court, and accordingly,
IT IS HEREBY ORDERED that the motion to tax costs of Mr. and Mrs. Arthur F. Purma is dismissed with prejudic'e in so far as the Arkansas Commissioner of Revenue is affected.”

On February 27, 1973, Jack Saxon, as former sheriff of Benton County, also filed a motion to dismiss Purma’s motion to tax costs on the ground that the motion to tax costs should be filed as a part of the bankruptcy action currently pending in Federal Court, and the Benton County Circuit Court had no jurisdiction in the matter. No action was taken by the court on this motion until April 3, 1973, but in the meantime, on March 1, 1973, Mr. Purma filed a motion reciting as follows:

“ [Petitioner's claim was filed herein on the 11th day of October, 1972, as a motion to tax costs; that essentially his cause of action consists of a claim on contract for reasonable rental; that the said contract was entered into between the petitioner and the defendant. Jack Saxon; that the petitioner has no liquidated claim against the defendant in the above cause; that any costs taxable in the above suit resulting from the outcome of petitioner’s claim are merely incidental to petitioner’s action and are not essential or a prerequisite to same that petitioner’s cause was therefore improperly filed as a motion to tax costs in the above cause and should therefore be severed and given separate standing as an independent action in the Benton County Circuit Court.
2. Petitioner further states that separate and independent service of process upon petitioner’s cause was had upon the defendant Jack Saxon; that more than twenty (20) days have elapsed since the said service was accomplished and that the said defendant is therefore in default and the petitioner entitled to judgment.
3. WHEREFORE, petitioner prays the court that his above-styled claim against the defendant. Jack Saxon, be severed and given standing as a separate and independent action in the above court and that the petitioner be permitted to take judgment by default against said defendant. Jack Saxon.”

On April 3, 1973, the trial court denied Saxon's motion to dismiss and granted Purma's motion for severance and default judgment against Saxon in language as follows:

“Now on this 28th day of March, 1973, comes on for decision the Motion to Dismiss of the respondent, Jack Saxon, and the Motion to Sever of the petitioner, Arthur F. Purma, in the above case, and the court being well and truly advised of all the premises here finds:
1. That the Motion to Dismiss of the respondent, Jack Saxon, is without merit and should be overruled.
2. The court finds that the claim of the petitioner, Arthur F. Purma, against the respondent, Jack Saxon, filed as a Motion to Tax Costs in the above cause constitutes a separate and distinct cause of action which should be severed and proceed forward as a separate civil action in this court, and that the said petitioner’s Motion to Sever should therefore be granted.
3. The court further finds that the defendant, Jack Saxon, having been duly served with process upon the petition and claim against him by the plaintiff, Arthur F. Purma, and the said defendant having answered not within the time provided by law, the said defendant should be granted ten (10) days from the entry of this Order to show cause why judgment by default should not be entered against him in favor of the plaintiff, Arthur F. Purma, on his claim aforesaid now pending as an independent civil action herein.”

On April 13, 1973, Saxon filed a response to the order to show cause alleging that he did in fact respond to the motion to tax costs by filing his motion to quash on October 25, 1972, and that by virtue of Purma’s motion to sever he waived his right to any default judgment against Saxon and Saxon prayed additional time for filing an answer.

On July 5, 1973, the trial court found that it had jurisdiction of the parties and the subject matter, and found that Saxon was justly indebted to Arthur F. Purma in the amount of $2,756 as a fair and reasonable rental for the storage of mobile homes on Purma’s land under an oral agreement therefor from January 24 to August 10, 1972. The trial court entered default judgment in favor of Arthur F. Pur-ma against Jack Saxon in the amount of $2,756, together with interest at six per cent from April 24, 1973, together with all costs of action for which execution might issue as provided by law.

On appeal to this court Saxon designated the points he relies on for reversal as follows:

“That the trial court erred in entering the default judgment because the appellant herein had filed a responsive pleading to the original motion filed by the appellee.
That the trial court erred in entering a default judgment because the appellee by his motion to sever materially altered the nature of this lawsuit and therefore waived the right to take a default judgment.
That the trial court erred in not sustaining the motion to dismiss filed by appellant herein because this matter is properly a matter for the bankruptcy court.”

Actual service was had on Saxon after he filed his motion to quash, so we shall only discuss his second and third assignments.

A sheriff has no discretion in carrying out an execution ordered by a court of competent jurisdiction toward the satisfaction of a valid judgment. Indeed, a sheriff is subject to severe penalties if he fails to do so. In addition to other statutory penalties, a sheriff is liable for the whole amount of the execution if he fails or refuses to levy it. Ark. Stat. Ann. § 30-1001 (Repl. 1962).

Ark. Stat. Ann. § 12-1725 (Repl. 1968) provides as follows:

“The Sheriff, Constable or other officer shall safely keep all property taken or seized under legal process, and shall be allowed by the court the necessary expenses of doing so, to be paid by the plaintiff, and taxed in the cost.”

Mr. and Mrs. Purma and Jack Saxon were not parties to the original suit and only became involved in it when the Pur-mas filed their motion on October 11, 1972, to tax their claim as costs in the action to which Saxon had never been a party. We may reasonably assume that all the parties were familiar with the provisions of § 12-1725, supra, and that the “Motion to Tax Costs” filed by the Purmas in this case was exactly what it purported to be. Neither the Commissioner of Revenue nor the sheriff of Benton County was named in Pur-mas’ motion to tax costs. They both were referred to by title in the same motion and there is no question that the motion was filed in the original cause in which the Commissioner was the plaintiff and the Purmas and Sheriff Saxon were strangers. The Commissioner of Revenue filed a response to Purmas’ motion to tax costs. He practically admitted his liability for Purmas’ claim to be taxed as costs. He contended, however, that the state court had lost jurisdiction of the subject matter to the Federal Bankruptcy Court, and the trial court apparently agreed.

It is difficult to understand how the state trial court concluded that it had lost jurisdiction over Purmas’ petition to tax costs against the original plaintiff. Commissioner of Revenue, and retained jurisdiction of the same petition against the sheriff of Benton County. The trial court apparently considered Purmas’ motion as a “Motion to Tax Costs” insofar as the original plaintiff Commissioner of Revenue was concerned, but considered it as a suit on contract insofar as Sheriff Saxon was concerned. It would appear that if the trial court lost jurisdiction of the subject matter of Purmas’ motion to the Federal Court insofar as the Commissioner of Revenue was concerned, the same rule should apply with equal force to the sheriff of Benton County. We do not consider the effect of bankruptcy further because we are of the opinion that Purma was not entitled to a default judgment under Purma’s motion to sever.

There is no question that the motion filed by Mr. and Mrs. Purma remained a motion to tax costs until after the trial court found that the bankruptcy court had exclusive jurisdiction of the subject matter insofar as the Commissioner of Revenue was concerned. The Commissioner of Revenue, as plaintiff in the original cause of action, would have been liable under the statute, § 12-1725, supra, as well as his response, had the trial court not found that the bankruptcy court had exclusive jurisdiction over the subject matter (apparently costs). The sheriff who levied the execution had a right to rely on the statute for protection against personal liability in the proper performance of his statutory duties. He had a right to assume that his arrangement for storage would be taxed as costs and awarded against the plaintiff as provided by statute. The summons served on Sheriff Saxon summoned him to answer within twenty days “a motion to tax costs filed against Commissioner of Revenue ...” (Emphasis added). Saxon had every reason to consider Purmas’ claim as a legitimate item of cost to be assessed against the Commissioner of Revenue, and he had no apparent reason to suspect that Purma would abandon his motion to tax his claim as costs and seek a separate judgment against him on contract, until Purma filed his motion to sever.

Purma’s motion to sever was filed after his original motion was dismissed as to the Commissioner of Revenue. In the motion to sever Purma stated that his claim was essentially a cause of action on contract for reasonable rental entered into between him and the defendant Jack Saxon. He admitted that his cause was improperly filed as a motion to tax costs in the original lawsuit and should, therefore, be severed and given separate standing as an independent action in the Benton County Circuit Court. He then prayed that his claim against Saxon be severed and given standing as a separate and independent action, and that he be permitted to take a default judgment against Saxon. It would appear that after the order of dismissal as to the Commissioner of Revenue rendered on February 13, 1973, and filed on February 26, there would be nothing left to sever under Purma’s motion filed on March 1, 1973.

As we view Purmas’ original motion, it remained a motion to retax costs both as to the Commissioner of Revenue and the sheriff of Benton County. We agree with the appellant that the rule of law announced in Lowrey v. Yates, 212 Ark. 399, 206 S.W. 2d 1, applies to the facts in the case at fc?ar. In Lowery we quoted with approval the general rule from 49 C.J.S., § 194, p. 340, in this language:

“ ‘Where the complaint is amended in a matter of substance after default, a valid default judgment cannot be entered on the amended pleading unless the defendant is duly notified of the amendment and given opportunity to plead. Where the declaration or complaint is amended in a matter of substance after defendant has defaulted, the amendment opens the case in default, and a valid default judgment cannot thereafter be entered on the amended pleading, unless the defaulting defendant is properly notified of, or served with, the amended pleading and given opportunity to plead, and then fails to do so within the proper time.’ ”

See also Shepherd v. Grayson, 200 Ark. 199, 139 S.W. 2d 54.

In the case of Hudgins v. Beavers, 69 Ark. 577, 65 S.W. 99, Deputy Sheriff Beavers incurred expenses in taking care of personal property under an attachment levied by the sheriff through another deputy. Beavers filed a complaint directly against the original plaintiff and testified at the trial that his services were worth 13.00 per day and that he kept the goods for thirty-five days until they were released to the defendant in the suit as exempted property. The proof on behalf of the defendant was that the deputy’s services were only worth SI5.00 or $20.00 and that the goods might have been kept for the same time in a safe place for that amount. The situation in Hudgins was reversed from the situation in the case at bar in that the suit in Hudgins was on contract but was erroneously taxed as costs in the trial court. In that case this court said:

“No claim for these services as costs in the original suit was ever presented by the sheriff, but the deputy sues for the same in this independent suit, as per contract between himself and the defendants. * * * The circuit court * * * dismissed the suit as on contract, and permitted it, over the objection of defendant, to progress, treating it as a motion to retax costs, and rendered judgment in favor of plaintiff for the sum of $25 and costs.”

There was no appeal from the judgment of the circuit court dismissing the suit on contract but in reversing the judgment for the $25 taxed as costs, this court said:

“The circuit court was without jurisdiction to adjudicate the matter as on a motion to retax the costs, for the costs involved had not accrued in this proceeding, and neither the sheriff nor any of the parties in the attachment proceeding had moved for a retaxing of the costs. Nor was there ever any motion for that purpose. The judgment is therefore reversed, and the cause dismissed without prejudice.”

As already pointed out, Ark. Stat. Ann. § 12-1725 (Repl. 1968) required the sheriff to safely keep and preserve the property taken or seized under legal process and directed the necessary expense in doing so to be paid by the plaintiff and taxed as costs. Purma had a right to pursue his claim as a motion to tax costs .under the provision of this statute and when he did so, Sheriff Saxon had a right to rely on such procedure as protection against separate and independent personal liability on contract. We are of the opinion that in Purma’s motion to sever, he stated for the first time an independent and totally separate cause of action against Saxon on contract, and Saxon was entitled to notice and time to answer in defense of such new demand.

The judgment is reversed and the cause remanded.

Harris, C.J., and Fogleman, J., dissent.

JOHN A. Fogleman, Justice,

dissenting. 1 can neither follow nor accept the majority opinion and action in this case. As I analyze the opinion, the majority is saying:

1. The action of the trial court on the motion to dismiss by the Commissioner of Revenues somehow affected the proceedings so that no action against the appellant was pending thereafter.
2. That appellee’s pleadings were amended in a matter of substance, apparently by his motion to sever.
3. Saxon had a right to rely upon appellee's motion to tax costs as insulation against his personal liability, and was thereby justified in failing to answer.
4. That appellee first asserted a separate cause of action against Saxon on contract in his motion to sever.

I humbly submit that not only the conclusions of the majority but the premises on which they are based are erroneous and that the circuit judge was eminently correct in granting a default judgment.

Since I feel that certain portions of the record have been either ignored or not given adequate consideration, I deem it necessary to point out some matters disclosed in the record, at the same time endeavoring to minimize repetition of matter covered in the majority opinion.

The prayer of the motion to tax costs is that the claim of Purma for a rental fee be taxed as costs against the plaintiff and the Sheriff of Benton County, “jointly and severally.” As a basis for quashing the service upon him attempted by mailing appellant a copy of this pleading, appellant stated “ ... it is in fact, a complaint stating a cause of action distinct from the action within and has not been served in the manner provided by law.” In his brief in support of that motion, appellant stated:

In reality, the petitioners are attempting to state an entirely new and distinct cause of action, based on facts which have nothing to do with the matters litigated in the above suit. As such, the matter is improperly styled, has, not been Filed as a new action, and has not been served by summons as required by Ark. Stat. Ann. § 27-301, et seq.

Thus, there is no way in which appellant could be justified in saying that the pleading filed by appellee so misled him that he did not understand that Purma was seeking a judgment against him for $2,756.

The nature and function of a pleading has always been determined by this court by its content, and sometimes by the manner in which it is treated by the parties, rather than by its title. Hand v. Northwestern National Insurance Company, 255 Ark. 802, 502 S.W. 2d 474. The facts stated in a pleading, not what it is called by the pleader, determine its character and sufficiency. Hoggard & Sons v. Russell Burial Association, 255 Ark. 576, 501 S.W. 2d 613. We treat a pleading according to its substance, regardless of what it is called. Home Insurance Co. v. Williams, 252 Ark. 1012, 482 S.W. 2d 626; Craft v. Armstrong, 200 Ark. 681, 141 S.W. 2d 39; Parker v. Nixon, 184 Ark. 1085, 44 S.W. 2d 1088. The purpose of pleadings is to arrive at the exact issues between the parties and to apprise each party of what is admitted and what he is required to establish by testimony. Beasley v. Haney, 96 Ark. 568, 132 S.W. 646. They are required so that each party may know what issues are to be tried and may thus be in a position to enter the trial with his proof in readiness. Urban Renewal Agency of Harrison v. Hefley, 237 Ark. 39, 371 S.W. 2d 141; Bachus v. Bachus, 216 Ark. 802, 227 S.W. 2d 439. This court has stated on numerous occasions that rules of pleading are to be liberally construed, and every reasonable intendment indulged in behalf of the pleader. Craft v. Armstrong, supra; McKim v. McLiney, 250 Ark. 423, 465 S.W. 2d 911. Arkansas Statutes Annotated § 27-1150 (Repl. 1962) requires that for the purpose of determining the effects of a pleading, we construe its allegations liberally.

The majority has ignored these precepts and characterized Purma’s pleading almost entirely upon the basis of the caption given it by the pleader. This is inconsistent with earlier holdings.

In Feldman v. Feldman, 171 Ark. 1097, 287 S.W. 384, this court affirmed the trial court’s refusal to quash the pleading filed by a plaintiff in a replevin action and dismiss the action, saying:

Where there is a statement of the facts constituting the cause of action, whether the complaint be designated as an affidavit or complaint, it is sufficient to give the court jurisdiction. Climer v. Aylor, 123 Ark. 510, 185 S.W. 1097. The affidavit or complaint filed before the justice court has been duly brought into this record by cer-tiorari and is set forth above. The instrument set out above, designated affidavit or complaint, contains a sufficient description of the goods in controversy and their value, and alleged that the plaintiff was entitled to possession thereof and that the defendant was in unlawful possession and unlawfully detained the same, and the plaintiff prayed judgment for the recovery thereof. This complaint was sufficient to give the court jurisdiction of the subject-matter to determine rights of property between the parties under section 8640, C. & M. Digest.

In Parker v. Nixon, supra, a receiver for a corporation filed a pleading, which he denominated a petition to vacate a judgment. Summons was issued and duly served. It was urged that the pleading was insufficient because the statute governing such proceedings required them to be initiated by filing a complaint. The court then said:

It is true this pleading was denominated a petition, and not a complaint; but this designation was unimportant, as the petition was in the nature of a complaint and contained all the allegations required by the statute. It was, therefore, properly treated by the court as a complaint.

Home Insurance Company v. Williams, supra, is particularly applicable here. In that case the defendant insurance company filed a motion to require the plaintiff, its policyholder, to make alleged uninsured motorist tortfeasors third party defendants. In this motion the insurance company alleged entitlement to a judgment over against these tortfeasors in the event plaintiff recover judgment against it. Thereafter, by an amended answer, the company reiterated this allegation, and prayed for judgment over against the tortfeasors, as alternative relief. We held that these pleadings were to be considered as a cross-complaint by the insurance company against the uninsured motorists.

In every case which has heretofore come before this court, we have ignored the title given a pleading when the effect of its allegations is clear.

We have also spoken to the matter of naming the parties in the caption of the pleading. We held that where a party clearly appeared to be a plaintiff in the body of the complaint, it was immaterial that his name did not appear in the caption. Collins v. Lightle, 50 Ark. 97, 6 S.W. 596. See Nunez v. O. K. Processors, Inc., 238 Ark. 429, 382 S.W. 2d 384. There is no reason why this rule should not apply to both the plaintiff Purma and the defendant Saxon in this case.

Appellant does not, and did not, in the circuit court, contend that service of the summons issued after the filing of his motion to quash was not had according to the return. He only contended that his motion to quash constituted an appearance which prevented a default judgment and that Purma, by his motion to sever, had waived his right to a default judgment. Of course, the idea that the motion to quash submitted Saxon to the jurisdiction of the court is quite inconsistent with the purpose and function of the motion. Such a motion, seeking only the quashing of service, does not defeat its own purposes by bringing the pleader into court for all purposes. Nutrena Mills, Inc. v. Parsons Feed & Farm Supply, 234 Ark. 1058, 356 S.W. 2d 421. Certainly, we cannot consider that the motion to quash performed the function of a demurrer sufficiently to prevent a default judgment under the authority of Caine v. Lunon, 209 Ark. 1008, 190 S.W. 2d 521, relied upon by appellant. Nor is it the type of motion which must have been disposed of, under the rule of that case, before a default judgment could be entered. In Rice v. Simmons, 89 Ark. 359, 116 S.W. 673, an authority relied upon in Caine, we held that, when it appears that the motion could not have been granted or its determination would not affect the plaintiff’s right to proceed, the entry of a judgment by default is not reversible error. After the issuance and service of summons, in this case, the motion to quash became moot and had no bearing on Purma’s right to proceed.

In my view the motion to sever changed nothing. In it, Purma stated: the claim was filed as a motion to tax costs; his course of action was essentially a claim on contract for reasonable rental, entered into between him and Saxon; costs taxable in the suit resulting from his claim were merely incidental to his action; consequently, the cause was improperly filed as a motion to tax costs and should be severed and given separate standing as an independent action; separate and independent service of process had been had more than 20 days previously, so he was entitled to default judgment. This pleading was filed after Saxon had moved to dismiss Purma’s motion to tax costs, in which he asserted that the court had no jurisdiction and that the bankruptcy court had exclusive jurisdiction.

The trial court, in granting the motion to sever, found that Purma’s claim constituted a separate and distinct cause of action which should proceed as a separate civil action. I am unable to understand how anyone can say that the “complaint” was amended in any matter of substance. No new facts were stated. No new or different cause of action was asserted. No cause of action separate and distinct from that alleged in the motion to tax costs was set out. Nothing changed, except for a docketing of the action between Purma and Saxon, separate from the proceeding out of which the cause of action arose. In Lowery v. Yates, 212 Ark. 399, 206 S.W. 2d 1, cited in the majority opinion, we actually held that new service was necessary only when the complaint is amended in a matter of substance, after default. We relied upon Shepherd v. Grayson Motor Co., 200 Ark. 199, 139 S.W. 2d 54, cited incidentally by appellant. However, the opinion in that case actually illustrates the principle that, in cases where there has been a default, new service is not required when there is an amendment to the complaint alleging facts which would entitle a plaintiff to incidental relief necessary to effectively accomplish the main purpose of the proceeding. The basis of the holding was that such an amendment did not amount to an amendment in a matter of substance or set up a new or different cause of action. This is in nowise contrary to our holding in Kerr v. Kerr, 234 Ark. 607, 353 S.W. 2d 350, also relied on by appellant. In that case, there were simply no allegations inferring any right to relief as to child custody in a divorce action. Naturally, it was held that the portion of the decree awarding such relief was improper after default by the defendant. Here the same relief against Saxon was sought by Purma throughout all procedures.

In the original motion, Purma (whether properly or not) sought to join or consolidate his claim that the rental due him be taxed as costs in the case (for which appellant would not be liable) with his claim that he was entitled to judgment, jointly and severally, against the Commissioner of Revenues and appellant. Severance, by definition, is the division of one action into two or more separate and distinct actions and is, in effect, the converse of consolidation. 1 C.J.S. 1379, Actions, § 117; 1 C.J.S- 1385, Actions, § 122. If Purma had filed his motion to tax costs without making the sheriff a party, and filed his complaint against the sheriff in a separate action, the two proceedings, being of a like nature and relative to the same question, might have been consolidated by the court. Ark. Stat. Ann. § 27-1305 (Repl. 1962). If so, joining the two was not prejudicial error. Catlett v. Bradley, 185 Ark. 260, 47 S.W. 2d 15; American Insurance Co. v. Haynie, 91 Ark. 43, 120 S.W. 825. A motion to sever was proper.

A severance only divides the action into two or more distinct and independent actions, to each of which all the incidents of the original action attach. Hall v. City of Austin, 450 S.W. 2d 836 (Tex. 1970); Campbell v. Durant, 110 Kan. 30, 202 P. 841 (1921); Bryan v. Spivey, 106 N.C. 95, 11 S.E. 510 (1890); First National City Bank v. Cervera, 43 Misc. 2d 843, 252 N.Y.S. 2d 537 (1964); Steinbugler v. William C. Atwater & Co., 16 N.Y.S. 2d 851 (1939). The original causes of action are preserved and may be docketed and proceeded with as distinct actions without further service of summons. 1 C.J.S. Actions § 122 p. 1385. See Keary v. Mutual Reserve Fund Life Assn., 30 F. 359 (E. D. Mo. 1887).

I would affirm the judgment.

I am authorized to state that the Chief Justice joins in this dissent.

       Although the propriety- of this procedure is immaterial, appellee may have originally felt that this was proper, or at least not improper, under Ark. Stat. Ann. § 27-1305 (Repl. 1962) or Ark. Stat. Ann. § 27-1301 (Supp. 1973). See Callett v. Bradley, 185 Ark. 260, 47 S.W. 2d 15; American Insurance Co. v. Haynie, 91 Ark. 43, 120 S.W. 825. If they were misjoined, the remedy would have been by motion to strike. Ark. Stat. Ann. §§ 27-1302, 1303 (Repl. 1962). Misjoinder is waived by failure to file such a motion. Cooper v. Cooper, 225 Ark. 626, 284 S.W. 2d 617.

       The purpose of the statute was to save a repetition of evidence and unnecessary consumption of time and costs in actions depending upon the same, or substantially the same, evidence, or arising out of the same transactions. St. Louis, I. M. & S. Ry. Co. v. Raines, 90 Ark. 482, 119 S.W. 266.


source: Caselaw Access Project

author: Frank Holt, Justice.

license: Public Domain

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Harold C. JENSEN et al
    73-286
    508 S.W. 2d 737
    Opinion delivered April 29, 1974
    [Rehearing denied June 3, 1974.]

      Thomas B. Keys and Philip N. Cowan, for appellant.

      Comer Boyett, Jr. and Dale Price, for appellee.
   Frank Holt, Justice.

This appeal results from an eminent domain action in which appellant moved to strike the testimony of appellees’ expert value witness, Terrell Huff. Appellant’s motion to strike, inter alia, reads:

Plaintiff [appellant] further moves to strike that portion of his testimony in which he values the improvements on the farm as to depreciated values because it was arbitrarily based on 15% depreciation on property and improvements where the proof shows that some of the improvements and equipment were older than others.
THE COURT: Overruled.

The expert’s valuation, upon cross-examination, must demonstrate a foundation in fact or a reasonable and fair basis rather than mere surmise. Ark. State Hwy. Comm’n. v. Jensen, 253 Ark. 795, 489 S.W. 2d 5 (1973), Arkansas State Hwy. Comm’n. v. Steen, 253 Ark. 910, 489 S.W. 2d 781 (1973), Ark. La. Gas v. Hardgrave, 252 Ark. 257, 478 S.W. 2d 772 (1972), and Ark. State Hwy. Comm’n. v. Carruthers, 246 Ark. 1035, 441 S.W. 2d 84 (1969).

We must agree with appellant’s objection as to the arbitrariness of the expert’s depreciation of 15% on all improvements which were included in the taking. The improvements involved were varied — a potato house, ironclad building, machine shed, dairy barn, two dwellings, three wells, three pumps, and another dwelling used for storage. On cross-examination the witness testified that after determining the replacement value on each improvement, these figures were added and a straight 15% depreciation was taken by him on their total value. Although we are sensitive to the difficulties in determining depreciation, we cannot approve of this method as a precedent for it obviously has no fair and reasonable basis. Appellees cite no authority for the method so used. Some of the improvements varied in age as well as type and condition. Appellees’ witness, on cross-examination, testified that “I did not depreciate each building as I worked it out. Some of these buildings would have a higher depreciation and some a lower depreciation.” The value of each item was separately established by the expert value witness — so also should the depreciation as to each item. The burden was upon appellees’ expert witness to justify, upon cross-examination, the reasonableness of his method of depreciation.

We have considered appellant’s other two contentions and find them without merit.

Reversed and remanded.


author: CARLETON HARRIS, Chief Justice.

text:
    Patsy HARDIN, Admx. v. CITY of DEVALLS BLUFF, Arkansas et al Patsy HARDIN, Admx. v. COUNTY of PRAIRIE, Arkansas et al
    73-289 & 73-290
    508 S.W. 2d 559
    Opinion Delivered May 6, 1974

      Ray & Donovan, by: Robert J. Donovan, for appellant.

      Charles A. Walls, Jr., for City of DeValls Bluff, et al.

      Wallace, Hilburn & Wilson, LTD., by: Jachary D. Wilson, for Prairie County et al.

      Jim Guy Tucker, Atty. Gen., by: Lewis D. Smith, Dep. Atty. Gen., for State of Arkansas.
   CARLETON HARRIS, Chief Justice.

These cases, consolidated for submission, relate to governmental immunity of cities and counties. Appellant, Patsy Hardin, Ad-ministratrix of the Estate of Nadine Hardin Alsup, alleges in a complaint against both Prairie County, together with its County Judge, and the City of DeValls Bluff and its Mayor, Recorder, and Board of Aldermen that N¡lrs. Alsup was incarcerated at DeValls Bluff for public drunkenness and disturbing the peace by an officer acting in behalf of the City and the County; that she was confined in the jail, left there without an attendant, and that subsequently a fire occurred in the jail from which Nadine Alsup died of suffocation. It was asserted that confinement under the circumstances constituted negligence which was the proximate cause of decedent’s death. The County demurred to the complaint and the City moved for summary judgment. The court sustained the demurrer of the County and dismissed the complaint against it, appellant declining to plead further, and likewise granted summary judgment in favor of the City dismissing the action of appellant. From these judgments, appellant brings this appeal. For reversal three points are asserted, but all relate to the constitutionality of Act 165 of 1969, and that is actually the only issue before this court.

Pertinent background of this case reflects that on June 3, 1968, this court handed down the opinion of Parish v. Pitts, 244 Ark. 1239, 429 S.W. 2d 45 (Rehearing denied July 15, 1968), where we said that the rule of law established by precedent granting to municipalities immunity from liability for damages negligently inflicted on others while acting in a governmental capacity was overruled. That case involved injuries allegedly suffered by Mrs. Parish when her car was negligently struck by the city’s garbage truck. The trial court had sustained the demurrer of the city and in the opinion cited, we reversed that court.

The General Assembly of 1969 enacted legislation which became law on March 5, 1969, approximately ten months following; Parish v. Pitts, supra. In the first section of that act, Ark. Stat. Ann. § 12-2901 (Supp. 1973), the General Assembly set forth the State’s public policy, as follows:

“12-2901. It is hereby declared to be the public policy of the State of Arkansas that all counties, municipal corporations, school districts, special improvement districts, and all other political subdivisions of the State shall be immune from liability for damages, and no tort action shall lie against any such political subdivision, on account of the acts of their agents and employees.”

This is the section that is primarily at issue and which appellant contends is contrary to Article II, Section 13 of the Arkansas Constitution of 1874, which provides:

“§ 13. Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character; he ought to obtain justice freely, and without purchase, completely, and without denial, promptly and without delay, conformably to the laws.’

At the outset, let it be pointed out that the decision in Parish v. Pitts, supra, was not based upon any constitutional ground, and the constitutional arguments now presented were not relied upon in any manner by this court in reaching its conclusions. Accordingly, the legislature was free to legislate in this field and to declare the State's public policy. This it did very quickly, and the action taken by the legislature was commented upon in the first opinion handed down by this court after the passage of Act 165 of 1969 ( Williams v. Jefferson Hospital Ass'n Inc., 246 Ark. 1231, 442 S.W. 2d 243) where we said:

“There is another reason why the Parish case is not controlling. The Legislature acted within less than one year after Parish v. Pitts. By Act 165 of 1969 that holding was overturned. That Act declares the public policy to be that all political subdivisions of the State be immune from tort liability."

On October 6, 1969, two cases were handed down by this court which referred to Act 165. The first of these was Sullivan, Adm'r. v. Pulaski County, 247 Ark. 259, 445 S.W. 2d 94, wherein we quoted Section 1 of the Act, and then stated, “This statement of public policy is plain and unambiguous and leaves no room for doubt. ”

We also pointed out that Parish v. Pitts, supra, had made it clear that the court in rendering that opinion had not considered the liability of any other governmental unit or political subdivision; accordingly, as far as counties are concerned, this court has never departed from the doctrine of-governmental immunity. Chandler v. Pulaski County, 247 Ark. 262, 445 S.W. 2d 96, also referred to Act 165 and made it clear that the General Assembly had full authority to declare the public policy of the State in this field.

As to the constitutional provision relied upon by appellant and hereinbefore set out, let it first be said w'e do not consider that Emberson v. Buffington, 228 Ark. 120, 306 S.W. 2d 326, relied upon in large measure by appellant, has any bearing on the issue here presented for Emberson related only to actions between individuals.

Appellant mentions the provisions of Act 165 of 1969 (Ark. Stat. Ann. § 12-2902 [Supp. 1973]) which authorize political subdivisions of the State to provide for hearings and the settling of tort claims against them, and asserts that such provisions are invalid and that she is entitled to have her action heard in a court of law. Included in this contention is the argument that she is otherwise deprived of an appeal. For reasons hereafter set out, we do not deem it necessary to discuss Section 12-2902, bearing some similarity to statutes dealing with the State Claims Commission and particular statutes relating to other agencies wherein the judicial branch of the government is precluded from reviewing actions taken by such instrumentalities.

Over a century ago in the case of Granger and Wife v. Pulaski County, 26 Ark. 37, this court, referring to counties, said:

“It is well settled that, at common law, these quasi corporations are not liable to a private action at the suit of a party injured, resulting from the non-performance by its officers of a corporate duty, and no such action lies unless given by statute. This doctrine has been repeatedly asserted and applied by the courts of this State, where actions have been brought against counties and townships for injuries received in consequence of defects in the public highway.***"

This holding of county immunity for governmental func-tons has been reiterated during the past one hundred years so many times that further citation of authority is unnecessary.

With the exception of Parish v. Pitts, supra, the same holding has been consistent with regard to municipal corporations. In 1872, in the case of City of Little Rock v. Willis, 27 Ark. 572, Chief Justice McClure, writing for this court, said:

“It is no easy matter to lay down a precise rule embracing the torts for which a private action will lie against a municipal corporation; but it may be generally stated, that the liability of a body created by statute, must be determined by the statute which creates it, for it is clear that a right of action against a municipal corporation does not exist at common law.
“That a municipal corporation may be made liable for damage, in a case like that presented by the record of this case, there is no doubt; but that is not the question; the question is, does the statute, creating the city of Little Rock, give to the appellee a right of action for the wrong complained of? This question must be determined, not by what ought to be, but by the plain letter of the statute. Our duty is to declare what the law is, and not what it ought to be.”

In the 1879 case of Trammell v. Town of Russellville, et al, 34 Ark. 105 (approximately five years after the adoption of our present Constitution), this court, speaking through Justice Harrison, discussed the governmental, as distinguished from proprietary, character of municipal corporations, and as to the former, said:

“For acts done by them in their public capacity, and in discharge of the duties imposed upon them for the public benefit, cities and towns incur no liability to persons who may be affected or injured by them.”

It thus appears that, from the outset, our court has recognized that the drafters of our Constitution, despite Article II, Section 13 of the 1874 Constitution, never haa in mind that one, without legislative authority, could receive redress for asserted wrongs against counties and cities acting in their governmental capacities.

Nor is this position just based on ancient authority. We have not extended the guarantee of rights of this provision beyond a limitation on the power of the legislature to abolish rights of action which were well established when the Constitution was adopted. It neither authorizes the creation of rights of action by the courts nor limits the power of the General Assembly to enact remedial laws. See McFarlin v. Kelly, 246 Ark. 1237, 442 S.W. 2d 183; Peugh v. Oliger, 233 Ark. 281, 345 S.W. 2d 610; and Roberson v. Roberson, 193 Ark. 669, 101 S.W. 2d 961. Since there was no well established jural right to recovery from a city in a tort action such as this at the time of the adoption of our constitution, Art. 2, Sec. 13, does not prohibit the legislation involved here.

For that matter, it is not certain that appellant has been denied all remedies for wrongs allegedly suffered, for as herein mentioned, she has already instituted suit against the estate of the deceased Sheriff and against the Deputy Sheriff in Federal Court.

At any rate, based on the reasoning heretofore set out, the judgment is affirmed.

It is so ordered.

       The complaint does not set out where Mrs. Alsup was arrested or In what jail she was placed; i.e., whether county or city. According to the allegations, Roland Martineau was acting in a dual capacity when he made the arrest, i.e., Deputy Sheriff of Prairie County and Law Enforcement Officer of the City of DeValls Bluff, a City of the Second Class.

       Suit was originally filed in the United States District Court. Eastern District of Arkansas, Western Division, by Mrs. Hardin, as Administratrix, against “Michael E. Grady. Administrator of the Estate ol S. E. Grady, individually and as Sheriff of Prairie County. Arkansas, and Roland Martineau, individually and as Deputy Sheriff of Prairie County. Arkansas, jointly and severally." On August 9. 1973, a judge of that court, upon motion of Mrs. Hardin, ordered a stay of proceedings for a reasonable time to enable Mrs. Hardin to litigate in the State Courts of Arkansas the validity of Act 165 of the General Assembly of 1969 wherein tort immunity to political subdivisions of the State was declared. The order then recites:
      “In granting the motion the Court assumes that if Act 165 is held to be unconstitutional by the State courts plaintiff will proceed in those Courts against Prairie County, Arkansas, and the City of DeValls Bluff, and will dismiss this action against the estate of the former Sheriff of Pariric County and Deputy Sheriff Martineau. The Court should he kept advised of (he progress of the State court litigation, and counsel are placed on notice that further action may be taken in this case if the State court litigation is unduly prolonged."

       Sections 1, 4, 28 and 43 of Article VII, Constitution of Arkansas, are also mentioned. Section 1 provides that the judicial power of the State shall be vested in a Supreme Court, Circuit Courts, County and Probate Courts, and Justices of the Peace, and further, that the General Assembly may also vest such jurisdiction as may be deemed necessary in Municipal Corporation Courts, Courts of Common Pleas, and when deemed expedient may establish separate Courts of Chancery. Section 4 deals with the jurisdiction and powers of the Supreme Court. Section 28 deals with the jurisdiction of the County Court and Section 43 deals with the jurisdiction of Corporation (Municipal) Courts.

       From Ark. Stat. Ann. § 83-135 (Repl. 1960):
      “The decision of the State Welfare Department on any appeal for assistance grants shall be final; nor shall any action be brought in any court having for its object the changing of a ruling of said department on the merits of any application.”

       The balance of the act provides:
      “12-2902. Each county municipal corporation, school district, special improvement district, or other political subdivisions of the State is hereby authorized to provide for hearing and settling tort claims against it. (Acts 1969, No. 165, § 2, p. 455.)
      “12-2903. All political subdivisions shall carry liability insurance on all their motor vehicles in the minimum amounts prescribed in the Motor Vehicle Safety Responsibility Act (Ark. Stat., § 75-1402 et seq.; Act 347 of 1953, as amended).”

       From Ark. Stat. Ann. § 13-1406 (Repl. 1968):
      “The action taken by the Commission with respect to the allowance or dis-allowance of a claim, in whole or in part, shall be final and binding on all parties thereto and shall not be subject to judicial review at their instance.”

       The complaint, and accordingly the allegations therein, is not a part of this record.


author: George Rose Smith, Justice.

text:
    James BARTON Jr. v. STATE OF ARKANSAS
    CR 74-1
    508 S.W. 2d 554
    Opinion delivered May 6, 1974

      Harold L. Hall, Public Defender for appellant.

      Jim Guy Tucker, Atty. Gen., by: Richard Mattison, Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant was charged with first-degree rape and first-degree kidnaping. Ark. Stat. Ann. §§ 41-3401 and 41-2308 (Supp. 1973). The jury returned a verdict of guilty upon each charge and imposed a 99-year sentence for the crime of rape and a 20-year sentence for the crime of kidnaping. Two points for reversal are urged by the public defender.

First, the sufficiency of the evidence to support the rape conviction is questioned. The point is without merit. The prosecutrix, working alone in an office as a tax consultant, became suspicious of the appellant’s conduct and succeeded in expressing her fears by telephone to her supervisor, who notified the city police. When the prosecutrix hung up the telephone, the defendant produced a pistol, forced her to .accompany him to a nearby vacant building, and committed what the prosecutrix described as three acts of rape. The police arrived while the two were still in the building and testified at the trial that the defendant had a pistol and that the prosecutrix was nude. There was other corroborating proof that we need not detail.

Counsel for the appellant, citing Mills v. United States, 164 U.S. 644 (1897), insists that the prosecutrix's failure to make any outcry should be taken to indicate consent on her part. The short answer to that contention is that the woman was acting at gunpoint, from which the jury evidently found that her submission was not voluntary. Counsel also discusses certain minor time discrepancies in the testimony, but at most they raised an issue of credibility for the jury.

The second point for reversal relates to the admissibility of the appellant’s statement to the officers. We find no error. The officers’ explanation of the accused’s rights was not deficient, as it was in Moore v. State, 251 Ark. 436, 472 S.W. 2d 940 (1971), where the explanation stated that a lawyer would be appointed for the accused if and when he went to court. Here the officers used a form which stated that “1 have the right to talk with an attorney, either retained by me or appointed by the court, before giving a statement, and to have my attorney present when answering any questions.” Thus the defect that existed in Moore was not present in the case at bar.

Affirmed.


author: Lyle Brown, Justice.

text:
    A. B. HERVEY, Acting Director, Dept. of Finance & Admn. v. MACFARLANE COMPANY
    74-9
    510 S.W. 2d 303
    Opinion delivered May 6, 1974
    [Rehearing denied June 10, 1974.]

      Walter Skelton, Karl D. Glass, John F. (laulney, Harlin Ray Hodnett and J. R. Nash, for appellant.

      Mahony & Yocum, for appellee.
   Lyle Brown, Justice.

Appellee MacFarlane Company is engaged in the production of oil under leases in Union and Ouachita Counties. The trial court awarded MacFarlane a statutory credit on its severance tax for sums expended in the construction of a salt water disposal system; that award is appealed from. The single point for reversal is that the evidence does not support the award.

In 1959 the Arkansas Legislature enacted Act 57 with the stated purpose of promoting oil production by granting an exemption from severance taxes levied on oil production, such exemption to be given to producers who install satisfactory underground salt water disposal systems. See Ark. Stat. Ann. § 84-2113 el seq. (Repl. 1960).

In 1959 and again in 1960 appellee installed two separate salt water disposal systems and was granted an allowance against severance tax for the cost of each system to be spread over a ten year depreciation period in each case. The first system was designated as the Umsted B-6 Salt Water Disposal System and the second system was designated as the J.S. Murphy No. 12 Salt Water Disposal System. In 1962 appellee extended the Umsted B-6 System to cover additional wells, that system being designated as the Umsted B-6 Extension. The cost of that extension (as were the costs of the two previous systems) was allowed a new depreciation period of ten years.

In 1968 and 1969 appellee drilled an additional 23 wells. In order to take care of the salt water which was over-taxing the old disposal systems, and to provide for disposal from the new wells, appellee constructed what became known as Hays No. 10 Salt Water Disposal System. Appellee applied to appellant for a credit against severance tax for the cost of Hays No. 10. Appellant disallowed the credit on the grounds that Hays No. 10 system was duplicative in its functions; that the claim for severance tax credit included unnecessary costs; and asserted the whole claim was subject to question.

Appellee exhausted its administrative remedies without success. It then filed this suit seeking a mandatory injunction directing appellant to certify the costs of Hays No. 10 as a credit against severance taxes over- a ten year period. The credit sought was for $48,137.46.

The only witness for appellee was James H. Nobles, Jr., its managing partner with headquarters in El Dorado. His testimony leaves little doubt about the need for the installation of the Hays No. 10 disposal system. He testified appellee was originally disposing of some 18,000 barrels of salt water a day. Because of the addition of more and more wells appellee was having to dispose of approximately 34,000 barrels of salt water daily. He also testified that the additional salt water exceeded the capacity of the two original systems, the Umsted and the Murphy systems. He explained that all three disposal systems were being operated as a matter of necessity. Without their utilization “I was going to have salt water running out my ears”. Incidentally, each disposal system to which we have referred was approved by the Arkansas Pollution Control Commission and the Arkansas Oil and Gas Commission.

From what we have said about the evidence introduced through Mr. Nobles it is clear to us the construction of Hays No. 10 disposal system was a necessity. However, we cannot agree with the chancellor that appellee is entitled to depreciation as to that part of Hays No. 10 which services the wells connected with the Umsted B-6 system, the Murphy No. 12 system, and the Umsted B-6 extension. That is because appellee has already been allowed credit for construction of those systems. If appellee, in constructing those systems, did not adequately anticipate the salt water load which would develop from the wells connected with those systems, he cannot come back and take credit for supplementing the disposal of salt water from the wells which the old systems are serving. In other words the chancellor should have prorated the cost of Hays No. 10 and allowed appellee credit for that part of the construction which services the 23 wells drilled in 1968 and 1969.

We do not agree with appellant that the costs of land acquisition through outright purchase and lease, cannot be allowed. If the cost of those acquisitions is found by the court to be a reasonably necessary expenditure for the utilization of Hays No. 10 then we think those expenditures should be allowed. Ark. Stat. Ann. § 84-2118.

Reversed and remanded.


author: JOHN A. FoGLEMAN, Justice.

text:
    Rose Mae WILLIAMS v. Bert Ralph KILLINS
    74-27
    508 S.W. 2d 753
    Opinion Delivered May 6, 1974

      Franklin Wilder, for appellant.

      John Harris, for appellee.
   JOHN A. FoGLEMAN, Justice.

Appellant seeks reversal of a chancery court decree ordering reformation of a deed and quieting title to a 45’ by 122’ strip of land in Pope County. Appellee and his wife, Viola, were divorced in 1965. At that time they owned a forty-acre tract of land. It was divided, pursuant to a property settlement incorporated in the divorce decree, equally in kind by exchange of deeds giving Viola title to the western 20 acres and appellee title to the eastern 20 acres. Viola immediately conveyed her portion by warranty deed to appellant, sister of the appellee, for $3,500. The parties agreed that appellee was to have the house located on the property. Shortly after this transaction, a brother-in-law of the parties to this action, in the presence of both of them, stepped off the dividing line between the two tracts and found that it ran through the dwelling.

In 1973 appellant entered into negotiations to sell her 20 acres. A survey was run on April 6 which definitely established that the property line ran through the house. Three days later appellee signed a “Memorandum of Agreement” wherein he acknowledged that his occupancy of the 45’ by 122’ section of the western 20 acres on which the house extended was with the permission of appellant and that he was making no adverse claim to the land. Subsequently, appellant conveyed her tract to Jack Price, reserving the 45' by 122' section.

On July 16, appellee filed suit in Pope County Chancery Court seeking reformation of the deed ne executed to Viola and praying his title to the strip in controversy be quieted. The petition alleged mutual mistake in the deed to Viola and further asserted appellee's right to the property by adverse possession. There is no allegation of mutual mistake in the deed from Viola to appellant, but since this was all part of the same transaction we will treat the allegation, as both the parties and the court below appear to have done, as applying to both deeds. Following a hearing on September 20, 1973, the chancellor, by a nunc pro tunc decree made and entered on that day, ordered reformation of the deed from Viola to appellant and quieted appellee's title to the land in controversy. This appeal followed.

We will set aside the findings of the chancellor only if they are clearly against the preponderance of the evidence. Hendrix v. Hendrix, 256 Ark. 289, 506 S.W. 2d 848 (1974); Williams v. Campbell, 254 Ark. 592, 495 S.W. 2d 512. Having reviewed all the evidence, we find that the chancellor’s ruling granting reformation and quieting title in appellee was against the preponderance of the evidence.

The allegation of mutual mistake in appellee’s petition is that both he and Viola mistakenly believed the house was on the eastern tract. According to appellee’s testimony, at the time of the divorce decree all the parties thought the dwelling was on the eastern section. Viola testified that at the time of the divorce she was willing to allow appellee to have the house but that no dividing line was ever run and she had no idea where the line would have been had it been surveyed. Appellant testified that when she took the deed from Viola she did not know where the property line ran but that it made no difference to her since, regardless of its location, appellee was to have the use of the house. Appellee testified that the agreement was to divide the tract down the middle. As previously noted, shortly after appellant received her deed, she and appellee were present when her brother-in-law stepped off tne property line and found that the house was astride the line. Appellee admitted that, shortly thereafter, and before appellant left to return to her home in California, appellant had told him that he could use the house as long as he lived in it and used it as his residence. Following the April 6, 1973, survey, appellee signed the memorandum admitting he occupied the small tract in controversy with his sister’s permission.

To be entitled to reformation of a written instrument upon the ground of mutual mistake, a party must show beyond reasonable controversy that the mistake was mutual. Kromray v. Stobaugh, 212 Ark. 377, 206 S.W. 2d 171; Parker v. Carter, 91 Ark. 162, 120 S.W. 836, 134 Am. St. R. 60. The evidence must be clear, unequivocal and decisive. Booe v. Booe, 210 Ark. 709, 197 S.W. 2d 474; Corey v. The Mercantile Insurance Co. of America, 205 Ark. 546, 169 S.W. 2d 655; Cherry v. Brizzolara, 89 Ark. 309, 116 S.W. 668. The testimony of both appellant and Viola fails to establish that either of them was under any misapprehension as to where the property line ran. Rather their testimony reveals they were unconcerned as to the exact location of the line. Appellee claims he was mistaken but his conduct is inconsistent with that assertion. Having learned in 1965 that the house probably extended over onto the western tract, appellee waited eight years to take action to correct the alleged error. Furthermore, following the April survey which definitely established that the house was astride the line, appellee signed the document admitting that his occupancy of the land in controversy was with the permission of his sister. Appellee attempts to discount this damaging admission by saying he was advised to sign it by appellant’s attorney, his attorney in the 1965 divorce action, who allegedly told appellee he would have to sign it or move his house. Appellant actually asked appellee to sign the instrument and any statement by this attorney was made in response to appellee’s inquiry of him when appellee called the attorney by telephone. The explanation does not diminish the evidentiary value of the document.

From the evidence it is certainly reasonable to infer that from 1965 the parties knew the deed was correct and the property line ran through the house but that this was not important since appellant had purchased the land for appellee’s use. We find that appellee failed to meet the standard of proof necessary to justify reformation based on mutual mistake and that the chancellor’s ruling was against the preponderance of the evidence.

Appellee’s petition also sought to have his title quieted based on a claim of adverse possession. When adverse possession is asserted by one member of a family against another, stronger evidence is required to support the claim than in cases where the family relationship does not exist. Baxter v. Young, 229 Ark. 1035, 320 S.W. 2d 640; Staggs v. Story, 220 Ark. 823, 250 S.W. 2d 125; McGuire v. Wallis, 231 Ark. 506, 330 S.W. 2d 714. Appellant’s testimony, which was uncon-tradicted, was that she purchased this 20 acres so that her brother might have the use of the entire tract. She said that on the day the line-was stepped off, she told appellee he could have the use of the property as long as he wanted to live in the house. At no time during the period from 1965 until the filing of this action did appellee assert a claim of ownership to any portion of the western 20 acres, and as recently as three months prior to the institution of this suit he acknowledged in the memorandum that his use was by permission of appellant, and that he was making no claim of ownership adverse to appellant.' When one’s possession of land is by permission of the owner, such holding cannot ripen into an adverse right until the owner has notice of such claim and the holding has continued thereafter for the statutory period. Harper v. Hannibal, 241 Ark. 508, 408 S.W. 2d 591; Still v. Still, 239 Ark. 865, 394 S.W. 2d 733. Certainly, there was nothing to indicate to this sister who was living in California that her brother who was using her entire tract was claiming any part of it adversely to her. The evidence fails fo show any basis for appellee’s claim of ownership by adverse possession.

Since we find that appellee was entitled to neither reformation nor quieting of title based on adverse possession, the decree must be reversed, and the cause remanded for the entry of a decree consistent with this opinion.


author: J. FRED Jones, Justice.

text:
    Alfred WRIGHT et ux v. Bobby Dan FLAGG
    74-6
    508 S.W. 2d 742
    Opinion delivered May 6, 1974
    [Rehearing denied June 3, 1974.]

      Simpson & Riffel, by: Kirby Riffel, for appellants.

      Burris & Berry, for appellee.
   J. FRED Jones, Justice.

Alfred Wright and wife sued Bobby Dan Flagg for personal injuries and property damage growing out of an automobile collision. Flagg filed a counterclaim for damages and a jury trial resulted in a judgment in his favor. On appeal to this court the Wrights contend that the trial court erred in excluding from the evidence the proffered testimony of Stanley J. Klein who qualified as a consulting engineer and expert on forensic engineering from Rochester, New York.

The facts appear as follows: About dark on the evening of November 9, 1970, Mr. Wright was driving his 1960 Chevrolet automobile west on Highway 90 and his wife was riding in the automobile with him. Mr. Flagg was driving his pickup truck east on Highway 90 and the two vehicles collided south of the center line of the highway where Wright had driven his automobile with the intention of obtaining gasoline from pumps in front of Jackson’s Grocery store located on the south side of the highway.

As already stated, the collision occurred on November 9, 1970. Sergeant H. E. Turner investigated the accident for the state police and on November 11, 1970, he prepared his report including a diagram of the scene of the collision. When the case was finally tried on July 23, 1973, the Wrights called Mr. Klein as an expert witness. Mr. Klein’s testimony was objected to by Flagg’s attorney and the objection was sustained by the trial court.

In his proffer of proof Wrights’ attorney explained that Mr. Klein had examined photographs made of the two vehicles soon after the collision; that he had examined the diagram prepared by Sergeant Turner as a part of his police report, and had also examined a survey map showing the elevations and contour lines of the roadway. The record then appears as follows:

“I was going to ask Mr. Klein if he had an opinion, based upon a reasonable degree of scientific certainty, after his factual analysis, as to the position of the Wright-Flagg vehicles immediately before and during the collision — excuse me, as to the speed of the Wright-Flagg vehicles before' the collision, and he was going to say that he did have an opinion, and I was going to ask him to state that opinion, and his opinion would have been that due to the way the police diagram showed the cars were faced and the position the cars came to rest, that it would have been impossible for the Wright vehicle to have been moving at the time of the collision. That even supposing that this accident happened in the traffic lane, or supposing that it happened just on the shoulder of the road, in either event, if the Wright car had been moving forward at a speed of ten to fifteen miles an hour, or in an angular direction, that the forward thrust of the car would have been converted by the laws of physics and the laws of motion into a force which would have spun the rear of the vehicle in a southerly direction upon impact, and I would .like to ask Mr. Klein to explain that.
MR. KLEIN:
The force of force is expressed in terms of magnitude and direction and their application in relation to the center of gravity of the automobiles. Any force that acts through the center of gravity has no effect at all in doing anything but producing loose linear motion. If the force acts to one side of the center of gravity, then the force creates a curvalinear motion and produces a so-called movement about the center of gravity. And the reason for this is you have Newton’s law involving inertia that a body at rest will remain at rest unless acted upon by a force. If it is acted upon by a force and doesn’t go through the center of gravity, it will tend to rotate in one direction or another. An angular motion of the Wright vehicle caused by its turning would have had the effect of rotating it counter-clockwise, which did not happen, so we could not have had a turning movement, because it would have produced a final resting place contrary to where it was found. As it was, the impact of the Flagg blow to the Wright vehicle was a glancing blow, and the Wright vehicle, being stationary, had no contributing kinetic energy, its inertia, acting at its center of gravity, resisted displacement. Therefore, the Flagg vehicle rotated clockwise and ended in a rearward displacement. This was a high speed impact by the Flagg vehicle striking the right front portion of the Wright vehicle, which was not moving, that deformed the soft body metal of the Wright vehicle by the heavy frame components of the Flagg vehicle. All of the kinetic energy of motion was dissipated three ways, by braking road friction, deformation of the body metal, and the remainder by the displacement of the vehicles after impact until they came to rest. We had a conversion of speed into energy of heat and motion.”

Wrights’ attorney stated that upon assumption of the truth of Flagg’s testimony in his deposition, to the effect that Flagg was traveling at a speed of 40 or 45 miles an hour and the Wright automobile was traveling at a speed of 10 to 15 miles an hour and Flagg hardly had time to “hit the brakes” when the collision occurred headon, Mr. Klein would have testified that in his opinion the collision could not have occurred in such manner. He said he would also have questioned Mr. Klein upon the assumption that Flagg was proceeding down the highway at 35 to 37 miles per hour and the Wright car was waiting to make a left turn and that as he reached a point just before the store, the Wright car turned immediately in front of him, not leaving time for him to stop or swerve out of the way; and, Mr. Klein would have testified that in his opinion the collision could not have occurred in such manner based on his inspection of the damage dohe to the automobiles as shown by the photographs of the two vehicles, which show that it was a headon collision of the right from of the Flagg vehicle and “even more” right front of the Wright vehicle. That the damage to the automobile disclosed dis-figuration of the metal which by the laws of physics indicates it was not an angular collision. The attorney then stated:

“There is a clear scar along the side of the Wright vehicle clearly left by the bumper of the pickup, clearly indicating a headon collision in that manner, and other things.”

Under questioning by the court Mr. Klein testified that he first made an on-sight examination of the area where the collision took place in July, 1973. He said he had never had an opportunity to actually see or examine the vehicles involved, but only had an opportunity to examine photographs of the vehicles. Mr. Klein also stated he had no records as to whether any work had been done or any changes had been made in the highway surface or shoulders of the parking area in the vicinity of where the collision took place between the date of collision and when he viewed the scene in 1973 in preparation for testifying at the trial.

The plaintiff-appellant, Mrs. Wright, testified that her husband picked her up from work in Pocahontas at the close of the workday about 5:45 p.m. and that they were driving out Highway 90 on their way home when the collision occurred. She said her husband remarked that he needed some gasoline and “he turned and crossed the road and pulled off of the highway and stopped, and I said, ‘while you are getting gas, I will get some groceries.’ ” Mrs. Wright said that another automobile was stopped at the gas pumps and that after her husband turned from his proper traffic lane on the north side of the highway, he drove across the mid-line and across the opposite eastbound traffic lane on the south side of the highway and parked his automobile parallel with the highway and approximately 12 to 18 inches from the edge of the highway. She said her husband parked his car next to a pickup truck which was already parked and which she thinks belonged to Bob Jackson, the owner of the grocery store. She said the other automobile at the gas pump as well as her husband’s automobile had their lights on and that the two automobiles were facing each other. She said her husband stopped his automobile with the intention of moving on to the gas pump in the place where the other automobile was then parked after it had moved away from the pump. Mrs. Wright said as she started to get out of the car, she remembers turning back to get something out of her purse and does not remember anything else at all until she was being pulled from the automobile after the collision. She said she was then taken to the hospital.

Mr. Flagg testified that he was 41 years of age and after relating his activities for the day in question, he testified that he was driving about 35 or 40 miles an hour as he approached Jackson’s Grocery store and was involved in the collision. The record as to the pertinent portion of his testimony is as follows:

“Q. Will you just, in your own words, just tell the Court and the Jury exactly what happened the best you can recall?
A. Yes, sir. As I approached the store there is a little grade, and it was dusk dark, and as I come upon this grade there was a car meeting me on my side. I immediately applied the brakes, but there is a curve there as well as a hill, and when I applied my brakes, I applied them hard enough that I couldn’t steer it, couldn’t turn it, and consequently, I let up on them trying to steer it, then I applied the brakes again, but there wasn’t any way for me to get on the other side of the road and dodge the car.
Q. All right, what did the car in front of you do?
A. I was following a car and I just saw his tail lights as he went over the hill, his brake lights come on and he swerved and the next thing I knew then this car was coming over the hill on my side of the road.
Q. What did you do then?
A. That is when I applied the brakes.
Q. Did your brakes catch, or do you recall?
A. Yes.
Q. What happened after that?
A. Of course, I was thrown out of the truck, knocked out, and when I come to Harvey Hill was standing there raising me up, and he just run and got his car and come on around and picked me up and took me to the hospital.
* * *
Q. Could you indicate for the Jury about where you were when you first saw the Wright vehicle and where it was?
A. I was just approaching where the gas pumps are.
Q. This area?
A. Here.
Q. Where was the other vehicle?
A. The Wright vehicle?
Q. Yes.
A. It was almost in the center of the road but it was turning off to come into the driveway.
Q. Where was the car that was between you that you mentioned?
A. It went off on the shoulder over here on the righthand side and went around.
Q. Went around this way?
A. No, the other way.
Q. Went around this way?
A. Off on the shoulder there.
Q. All right, what transpired from then on?
A. All I did then was just to set down on my brakes and hope that he would be off the highway by the time I got there. At that curve there I couldn’t turn it to get on his side of the road and I was hoping my brakes — that 1 could get broke down in time to let him get off the highway, but it didn’t look like he made any attempt to get off the highway, he was coming right onto my side.
Q. All right. Could you tell us where, with reference to the center line of the highway, the collision occurred?
A. I would say within eighteen inches of the center line.
Q. On which side of the road?
A. On my side of the road.”

Mr. Herbert Turner, a sergeant in the Arkansas state police, testified that he investigated the collision. He said there were “no-passing” markers in the center of the highway at the scene of the collision. He said there was 28 feet of skid marks and 37 feet of tire marks all together next to the center line of the highway and in the “lane of traffic coming into town.” He said the skid and tire marks were practically straight on the highway and led to debris scattered over the south side of the highway. He said that after he had completed his initial investigation at the scene of the accident on the evening it occurred, he went to the Randolph County Hospital where he talked with Mr. Wright. He said Mr. Wright stated that he was turning left from the highway toward Jackson’s Grocery to get some gasoline; that he was almost off the pavement and was going about 10 to 15 miles per hour when the collision occurred. He said he talked with Mr. Wright again the following morning and that at that time Mr. Wright told him he was about half off the pavement when the collision occurred, and that his automobile was knocked back by the force of the impact.

Jesse Williams testified that he was visiting relatives and was sitting on a counter in Bob Jackson’s store when the collision occurred near the front of the store. He said he heard tires skidding on the pavement and as he looked out the window of the store, he saw a pickup truck skid past the gas pumps in front of the store and he heard the impact of the collision. He said he went outside of the store to the scene of the collision and he then testified as follows:

“A. The pickup truck was setting cross-ways of the road with the hood up and the door open, I believe, and tlje car with the door open and Mr. Wright was trying to drag his wife out of the car. I tried to help and he wouldn’t let me, he got her out and I ran back in to call assistance.
Q. We have stipulated that the diagram the police officer made showing where the vehicles were when he got there — can you understand that diagram?
A. Not entirely, I don’t understand which one is which.
Q. Assume that this is the grocery store and this is a house south and that V-2 is the Wright vehicle and V-l is the Flagg vehicle and that these points to where the vehicles came to rest, and that this is the center line of the road, is that approximately where the vehicles were when you saw them, do you agree with that?
A. No, sir.
Q. Where were they?
A. Is this the center line of the road?
Q. No, sir, this is the center line.
A. No, sir, I believe the truck was farther back here, and the car, at that time, was on the edge of the road and the back end was farther out than the front end too onto the pavement, if I remember correctly.
Q. So you disagree slightly with this diagram?
A. Yes, sir, a matter of a few feet, but possibly — now, we moved the pickup to allow traffic to flow through. I say ‘we’ — there was some other help come up and moved it. There was one, possibly two, cars waiting to get through from Pocahontas.
Q. Would it have been difficult for a car following the Flagg car to get by the scene of the wreck without stopping?
A. I would think so, I don’t see how they could have.
Q. Did you notice any debris at the scene of the accident apparently left by the cars colliding?
A. Well, there was glass on the pavement and also off to the side of the pavement.
Q, Some on the pavement and some off?
A. Yes, sir.
Q. On which side?
A. It would be the side the store is located on.
Q. Toward the store, okay. Did you notice any skid marks on the road?
A. Yes, I did.
Q. Can you tell me in your own words where those skid marks were located?
A. They started in the neighborhood of where the gas pumps are located and the skid marks were still going to where — to about where they had the collision.
Q. Did one or both skid marks leave the road?
A. I think so. Of this, I am not certain, but if I remember correctly, the side toward the store was off the road.
Q. One skid mark left the road and the other was on the road?
A. Yes, sir.
Q. At about what point did they leave the road?
A. It has been so long I can hardly remember just where they did go off, but I would say possibly just past the front of the store, not much if any.”

Dorothy Elizabeth Hawler, a registered nurse and anesthetist, testified that she was on her way to the Randolph County Memorial Hospital on an emergency call and she observed the collision involved in this case. She said the pickup truck passed her car as she came from her driveway on the highway and that she followed the truck to the point of collision. She said she was preparing to go around the pickup truck but as it was approaching a curve, she saw the lights from another car approaching from the opposite direction. She then testified as follows:

“A. . . . [I]t has been so long that I can’t remember all of the details, but I do remember seeing an automobile, I do not even remember what color it was, turn in front of this pickup truck that I was following.
Q. All right, what happened?
A. Immediately I saw either the hood of the man’s car or the front end of his car jump up in the air and then all, of course, was still. By this time, I was having to swerve to get around him and I was so intent on looking to see if there was a car coming in the other lane, which I had to take to get around this accident, that I really didn’t look at the accident. I just, out ofithe accommodation of my eye, is what I saw. I did not see the man in front of me swerve, he could have, but I did not see him do it.
Q. Did he ever get out of his lane of traffic?
A. No, sir, not to my knowledge.
Q. How far behind him were you?
A. Twenty-five feet, I am sorry to say, I was.
Q. Did you see his brake lights come on?
A. Yes, sir, I sure did.”

The appellants argue that the trial court precluded the testimony of Mr. Klein because in the trial court’s opinion this court “had absolutely precluded the testimony of automobile reconstruction experts, and therefore no expert testimony in this field is admissible.” While it is true we have recognized that expert testimony for such purpose is looked on with disfavor, we have recognized exceptions in proper cases as hereinafter demonstrated. It is true, as argued by the appellants, there was some conflict in the testimony as to the exact location of the Wright automobile in relation to the highway and as to whether it was stopped dead still or was moving when the collision occurred, but such conflicts in evidence are properly resolved by a jury rather than by the testimony of experts.

Mr. Klein did not see the automobiles but was attempting to testify from photographs made of the automobiles which were also available to the jury. From his proffered testimony he would have resolved all doubts in favor of the appellants who called him, while basing his opinion on a diagram and report of Sergeant Turner who originally made the diagram and testified on direct and cross-examination.

We agree with the appellee that there was substantial evidence from the testimony of the eyewitnesses and Officer Turner who investigated the collision, from which the jury could have found, as it apparently did, that Wright had crossed the center line of the highway in his effort to drive to a filling station or gas pump on his lefthand side of the highway, and Flagg’s pickup truck skidded practically straight into the Wright automobile while Wright’s automobile was still in Flagg’s lane of traffic.

The appellants rely heavily on the case of Woodward v. Blythe, Adm’x. 249 Ark. 793, 462 S.W. 2d 205, but we do not agree that our decision in that case is in any sense controlling here. In Woodward the deceased was the driver of a moving automobile which collided with two other automobiles traveling in opposite directions. There was evidence that the decedent actually sustained physical injuries from the impact of both automobiles, and the question was which of the two colliding automobiles caused the specific injuries which resulted in the decedent’s sudden death. We pointed out in Woodward that attempts to reconstruct traffic accidents by means of expert testimony are viewed with disfavor and that in the absence of anything to indicate it was beyond the jurors’ ability to understand the facts and draw their own conclusions, such expert testimony is not admissible. But we held under the facts of Woodward that the testimony of Dr. Robbins, an expert in the field of physics, was necessary for an understanding by the jurors of the physical dynamics and causal relationships involved in the accident.

In the case of Mo. Pac. R.R. Co. v. Barry, 172 Ark. 729, 290 S.W. 942, a railroad employee sued for injuries resulting from a collision between two locomotives. In that case we said:

“Counsel for appellant asked skilled engineers and an experienced foreman of a wrecking crew questions which elicited their opinion as to the manner in which the collision occurred, from their observations of the cross-over, the marks on the engine, and the blue-print drawing representing the two engines and the cross-over. The subject-matter of these questions did not call for the opinion of experts. The facts of the occurrence were not beyond the knowledge and experience of any ordinary man to understand and draw conclusions from them, when detailed by eyewitnesses.”

In Waters v. Coleman, 235 Ark. 559, 361 S.W. 2d 268, we held that the trial court erred in allowing the testimony of a police officer as an expert to reconstruct an automobile collision because the expert’s testimony would have invaded the province of the jury when there were four eyewitnesses in close proximity to the accident, and where there was no evidence to indicate it was beyond the jury’s ability to understand the facts surrounding the collision and to draw its own conclusions therefrom. See also Humphreys v. Reed, 234 Ark. 861, 355 S.W. 2d 281; Henshaw v. Henderson, 235 Ark. 130, 359 S.W. 2d 436; Conway v. Hudspeth, 229 Ark. 735, 318 S.W. 2d 137.

The facts in the case at bar were not complicated. They actually boil down to whether Mr. Wright drove his automobile across the center line of the highway and into the proper path of the oncoming truck driven by Flagg, or whether Mr. Wright had completed his exit from the highway and was parked parallel thereto when Mr. Flagg turned right from his proper lane and drove or skidded his pickup truck from the highway and collided with the Wright vehicle which was parked off the highway. Mrs. Wright was the only witness who testified that the Wright vehicle was off the highway and parked parallel thereto when the collision occurred. Mr. Wright apparently did not testify and Sergeant Turner’s testimony is not contradicted when he said that Mr. Wright stated to him at the hospital, “I was almost off of the pavement going about 10 or 15 miles an hour,” and Mr. Wright stated to him the following morning, as testified by Sergeant Turner, “He stated he was about half off the pavement and was knocked back when they hit.” As a matter of fact, Jesse Williams, Mrs. Hawler, Sergeant Turner, Mr. Flagg, and according to Turner, Mr. Wright himself, all place the Wright vehicle on the wrong side of the highway and directly in the path of the Flagg vehicle traveling in its proper lane when the collision occurred. In the light of the rather detailed testimony of the above named witnesses, we conclude that the trial court did not err in excluding the expert testimony of Mr. Klein.

The judgment is affirmed.

FOGLEMAN, J., dissents.