author: Conley Byrd, Justice.

text:
    Rodney HERRING v. Nye MORTON
    5-5246
    453 S. W. 2d 400
    Opinion delivered May 11, 1970

      John Wilson, for appellant.

      Anderson ir Crump ler, for appellee.
   Conley Byrd, Justice.

Appellant Rodney Herring as the surety on an appearance bond in a child custody proceeding appeals from an order of the court forfeiting the bond and directing its payment to appellee Nye Morton, Jr. For reversal of the trial court’s order he contends that the trial court erred in continuing the bond and in ordering a forfeiture and that if the bond should be upheld the proceeds should be paid to Hempstead County and not to the appellee Nye Morton, Jr.

The record shows that appellant’s daughter, Linda Herring Morton, now Linda Morton Dillion was divorced from appellee on April 19, 1968. While not exactly clear it appears that subsequent to that time and before July 3, 1968, appellant’s daughter and her present husband Jim Dillion were going back to Houston to live. When appellee filed a petition for modification of child custody, some apprehension arose as to whether Linda Morton Dillion and the minor child would appear on the date set. To secure this appearance the following bond was executed:

“Linda Herring Morton, having been awarded custody of Gregory Morton by Decree of this Court on April 19, 19.68, hereby enters into bond assuring her presence and the presence of said child before this Court upon the date to be set by said Court for hearing the Petition for Modification of Child Custody, filed herein by Nye Morton, Jr.
Now, we, Linda Herring Morton, James A. Dillion and Rodney Herring, hereby undertake that the above named Linda Herring Morton and Gregory Morton shall appear in the Chancery Court of Hempstead County, Arkansas, Second Division, on the date and the time set by said Court for the hearing of the Petition fqr Modification of Child Custody, filed herein by Nye Morton, Jr., to answer same, and shall, at all times render herself amenable to the order and process of said Court and if convenient, shall render herself in execution thereof, or if she fails to perform either of these conditions, that we will pay Hempstead County, Arkansas, the sum of FIVE HUNDRED DOLLARS ($500.00.)”

Appellant testified that he together with his daughter and minor child attended the hearing on July 3, 1968. While he was in the courtroom the trial court stated that he would leave the bond in effect. At this time appellant remonstrated to his daughter and her counsel but made no objections to the trial court.

On July 8, 1969, appellee filed a modon to hold Linda Herring Dillion in contempt of court and to modify the existing custody provisions. When the matter came on for trial on Sept. 5, 1969, appellant’s daughter did not appear either in person or by counsel. The court thereafter communicated with her counsel of record and reset the matter for Sept. 19, 1969. Before that date counsel of record for appellant’s daughter notified the court that he had been instructed not to appear and requested permission to withdraw as counsel.

The right of courts to require security for the production of children in court, in domestic relations cases, has been recognized by this court, Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8 (1948), and the courts of a number of other jurisdictions. See 24 Am. Jur. 2d, Divorce & Separation, § 782.

As we construe the bond entered into here it guaranteed not only the appearance of Linda Herring Morton before the court upon the date set for hearing the petition for modification but it also held her amenable to the order and processes of the court at all times. Consequently we find no merit in appellant’s contention that he had discharged his obligation when he assured their appearance on the date set for the petition of the modification.

Appellant’s second point that the bond proceeds should be paid to Hempstead County rather than to the appellee Nye Morton, Jr., seems to be a case of first impression. Neither party has cited any authority nor has the court been able to find any authority relative to the disposition of the proceeds of such bonds upon a forfeiture. However, since the purpose of such bonds is to insure compliance with the orders of the court and to give some security to the parties litigant, it appears to us that perhaps a better procedure would be to require the proceeds of the forfeited bond to be paid into the registry of the court for the use and benefit of the parties litigant in enforcing the decree of the court in any jurisdiction where the minor child may be found. While this procedure may cause additional work on the part of the trial court and tis clerks in policing withdrawals from the funds, it has the salutary affect of permitting the surety to protect himself to some extent by encouraging the principal to purge herself of the contempt and thus obtain a refund or partial refund of the amount of the bond. To this extent the order of the trial court should be modified.

Affirmed as modified.


source: Caselaw Access Project

license: Public Domain

text:
    Lonnie Edward FLURRY v. STATE of Arkansas
    5501
    453 S. W. 2d 402
    Opinion delivered May 11, 1970

      Warner, Warner, Ragon ér Smith, for appellant.

      Joe Purcell, Attorney General; Milton Lueken, Asst. Atty. Gen., for appellee.
   Conley Byrd, Justice.

Appellant Lonnie Edward Flurry was convicted of burglary and sentenced by the jury, pursuant to Ark. Stat. Ann. § 43-2328 (Supp. 1969), the habitual criminal act, to 21 years in the penitentiary. For reversal of the judgment he contends that the findings and sentence are not supported by the law and the evidence; that there is no evidence presented from which a jury could infer intent to commit a burglary upon entering the building; and that the evidence presented to the jury concerning his prior convictions was contradictory, unclear and confusing, thus letting the jury speculate.

The record shows that the burglar alarm at the Star Towel and Linen Company on North Third and A Streets in Fort Smith is connected to police headquarters. On July 25, 1969, about 10:03 P.M. the burglar alarm sounded. Officer J. W. Gilbreath arrived two minutes after the alarm went off. From where he stationed himself outside the building he could see the office door. He noticed the door open slightly and then close. Officers Charles J. Thomas and Lawrence Tidwell were up on the building’s roof at the time Gilbreath was making his observation. The officers then shouted for whoever was in the office to come out. Appellant came out of the building and started walking toward the back of the building where it was dark, but turned around and came to the door as instructed after the officers pulled their revolvers and threatened to shooot. ( The officers again yelled for anyone inside to come out and then appellant’s co-defendant George Ross appeared.

The officers testified that one had to open the office door inside the building to trip off the burglar alarm. They observed that the cold drink machine inside the building had been forceably opened with some sort of' tool, the office door had been pried open and several file cabinets had been pried open and the contents spilled all over the floor. Further examination showed that the outside south door, which had been locked on the outside with a hasp and lock had been pried open. At this time officer Gilbreath told his fellow officers they should check the area for an automobile and a possible look-out. At that point appellant Flurry volunteered that a search of the area wouldn’t do the officers any good because Flurry and Ross were on that job by themselves.

Officer Tidwell in searching Flurry found some dimes but did not know the amount thereof.

Officer Odell Davis testified that while appellant and Ross were in the “run-a-round” — i. e., a small barred enclosure adjacent to the elevator, Ross said to Flurry, “If we hadn’t been in Moffett and got drunk, they’d never caught us.” Davis said that Flurry replied, “This’ll learn you, damn you, not to steal.”

Ross testified in his own behalf that he and Flurry got together at a beer tavern in Moffett, Oklahoma, and left Moffett because they ran out of money. Somebody took them to Ross’s sister’s house in Fort Smith where they got five dollars. While walking back to Moffett they passed the Star Towel and Linen Company about a mile and a half from his sister’s house and entered through an open door to get a drink. While they were looking for the water fountain the officers came up.

We find that there is ample evidence to substantiate the jury’s findings. Consequently we find no merit in appellant’s contentions that the findings and sentence are not supported by the law or the evidence or that there is no evidence from which a jury could infer the requisite felonious intent.

Mr. Odis Harris, Sr., Circuit Clerk of the Twelfth Judicial District, testified at the hearing on the habitual criminal charge. He testified that his record showed two felony convictions of appellant Flurry in 1960 and four felony convictions in 1963. We find nothing in this testimony to support appellant’s contention that this evidence was contradictory, unclear and confusing so as to allow the jury to speculate as to the number of previous convictions.

Affirmed.


author: Frank Holt, Justice.

text:
    Charles L. HOLLIS, W. L. WOODARD, O. B. EMBRY v. PIGGOTT JUNIOR CHAMBER OF COMMERCE, Inc.
    5-5135
    453 S. W. 2d 410
    Opinion delivered May 11, 1970

      E. L. Holloway and T. A. French, for appellants.
    C. W. Knauts, for appellee.
   Frank Holt, Justice.

This is another phase of lengthy litigation as a result of the leasing of county property. In September 1964 the appellee, Piggott Junior Chamber of Commerce, Inc., sought and was granted by the county a lease of certain lands “for educational purposes” pursuant to Ark. Stat. Ann. § 17-313 (Repl. 1968). It was discovered later that the precedent for the order was never placed of record. The precedent was apparendy lost or misplaced. When the Chamber sought to establish of record a reproduction of the signed order, the appellants intervened as taxpayers and resisted the petition for the order nunc pro tunc. The trial court agreed with the appellants’ contention that the failure to enter the order voided the lease proceedings. On appeal we reversed and ordered that the Chamber’s petition for an order nunc pro tunc be granted and the order leasing the county property to the Chamber be made of record in the county court. Piggott Jr. C. of C. v. Hollis, 242 Ark. 205, 412 S. W. 2d 595 (1967).

When the nunc pro tunc order was made óf record in the county court approving the 1964 lease of the county property to the appellee, the appellants, as taxpayers, appealed this action to the circuit court. The trial court then found: “That the issues raised in this litigation are barred under the judicial doctrine of res judicata by virtue of order of the Circuit Court of the Eastern District of Clay County, Arkansas, in case No. 3312 wherein Elmer Vines was appellant, said order being dated March 15, 1968.” The court denied appellants’ motion to quash the county court’s order approving the lease and dismissed their appeal. From that order comes this appeal.

For reversal the appellants make several contentions. However, we think the only issue presented on appeal is whether the Vines’ litigation constituted res judicata and, therefore, barred the appellants’ appeal from the nunc pro tunc order. We must agree with the appellants that the present litigation is not barred by res judicata.

When the then county judge rendered the order in 1964 giving the appellee a lease (for educational purposes) to county property, there was an appeal perfected to the circuit court by Elmer Vines, in a representative capacity, as a citizen and taxpayer of the county. When the Vines case was set for trial in circuit court on March 15, 1965, Vines petitioned the circuit court to transfer his action to chancery court where there existed a similar proceeding in a class action by other citizens and taxpayers (the same as those in the present appeal) also attacking the validity of the county lease. The circuit court held that it had jurisdiction of the parties and subject matter and denied Vines’ petition to transfer his case to chancery court, holding that the case should stand for trial. Thereupon, at Vines’ request, the court dismissed his appeal.

The authority for Vines to maintain a class action, as a citizen and taxpayer, is provided in Ark. Stat. Ann. § 27-809 (Repl. 1962), which reads: “Where the question is one of a common or general interest of many persons, or where the parties are numerous, and it is impracticable to bring all before the court within, a reasonable time, one or more may sue or defend for the benefit of all.” Vines clearly had the right to institute and perfect his appeal to the circuit court as a representative of the public. This litigation ended there by a voluntary dismissal of his appeal. It should be noted that the same attorneys represented Vines as well as the taxpayers in the chancery and present litigation.

Thus, the question is presented whether the doctrine of res judicata is applicable to and bars the present litigation. This doctrine is based upon the principle that parties should not be permitted to twice litigate the same issue. No cases are called to our attention which hold that the mere dismissal of a cause of action, without bona fide litigation, operates as res judicata when the public interest is in issue.

It has been held that a mere voluntary dismissal by a plaintiff does not prevent the institution of a new action on the same subject matter by the same party against the same defendant. Lindsay et al v. Allen et al, 112 Tenn. 637, 82 S. W. 171 (1904). There it was urged that the complainants were bound by the fact that,, in a former action, a citizen and taxpayer in a representative capacity had instituted a suit for the same purpose. The taxpayer, however, voluntarily dismissed it. There, in rejecting the plea of res judicata, the court said:

“While it is proper and just that even the rights of the public of and concerning any special matter should be concluded by one fair litigation, in which the matters involved were faithfully presented and considered, it should be emphasized that the litigation must be bona fide, fair, and honest from the beginning to the end. Those who assume as citizens and taxpayers to stand forth as the champions of public rights and the conservators of the interests of all other citizens and taxpayers standing in the like case must discharge their voluntary trust with candor and with such reasonable skill as to enable the court to see that there has been no such gross negligence in the conduct of the cause as would be equivalent to a fraudulent surrender of the rights involved in the controversy, and no such blundering abandonment of acquired advantages as would justly sustain an imputation of fraudulent purpose or gross incompetency on the part of those in charge of the public’s case. In short, before the rights of the public are concluded, there must be a reasonably fair presentation of the case to a court of competent jurisdiction, and a consideration and determination of the matter by the court.”

Individuals who proclaim themselves public champions and who are entrusted with the responsibility to appear and represent the public in litigation that affects public interest have a right to weaken and abandon their asserted position. However, in doing so, it cannot be said they act for or bind the public’s rights. This is obviously a wise and necessary rule to be followed when public rights are purportedly defended by an individual or individuals. The general rule appears to be that before a judgment in a suit first brought by citizens or taxpayers can be a bar to a similar suit by other citizens or taxpayers, the presentation of the first suit must have been bona fide, and free from fraud or collusion. 52 Am. Jur. Taxpayer’s Action § 39. We are cited by appellee to our own case, Howard-Sevier Rd. Imp. Dist. 1 v. Hunt, 166 Ark. 62, 265 S. W. 517 (1924). There the doctrine of res judicata was held applicable since the issue had previously been litigated on the merits in the state and federal courts. A nonsuit or voluntary dismissal of a taxpayer’s action was not claimed as a basis for res judicata. In discussing the rationale of res judicata we quoted with approval: “* * * After judgment on the merits, a party cannot afterwards litigate the same question in another action, although some argument might have been urged on the first trial that would have led to a different result.” [emphasis added] Then we said: “* * * The appellees are bound by the unreversed judgment of the trial court in that case, determined on the merits, that the assessment of benefits was valid.” [emphasis added]

In Pulaski County v. Hill, 97 Ark. 450, 134 S. W. 973 (1911), we said: “The true test of whether or not a particular point, question or right has been concluded by a former suit and judgment is whether such point, question or right was distincdy put in issue, or should have been put in issue, and was directly determined by such former suit and judgment.” [emphasis added]

In the case at bar we hold that the voluntary dismissal by Vines of his litigation, as a representative of the taxpayers, without a bona fide submission upon the merits is not res judicata and binding upon the present litigation.

Reversed.


author: Carleton Harris, Chief Justice,

text:
    ARKANSAS STATE HIGHWAY COMM’N v. Martha P. DARR
    5-5248
    453 S. W. 2d 719
    Opinion delivered May 18, 1970

      Thomas Keys and Kenneth Brock, for appellant.

      Laws if Schultze and Phil Loh, for appellee.
   Carleton Harris, Chief Justice,

This is a highway condemnation case, and is a second appeal. The lands in question, belonging to Mrs. Martha P. Darr, were condemned by the Arkansas Highway Commission, appellant herein, on September 29, 1966. Taking was for the purpose of constructing a controlled-access interstate highway, and the condemned property was designated by appellant as Tract No. 225, which consisted of 9.55 acres. The entire property owned by Mrs. Dan-before the taking consisted of approximately 280 acres and was used for farming purposes. After the taking, the remaining lands consisted of 6.6 acres lying generally south of the new highway and 263.85 acres lying north of the new highway. Robert Darr, son of appellee, testified to total damages of $84,955.00. Jackson Ross, an expert witness on behalf of Mrs. Darr, found damages to be $71,125.00, and Hobart Yarbrough, another expert witness, testified that damages amounted to $77,955.00. Mr. Zack L. Mashburn, testifying on behalf of the highway department, found damages to be $23,500.00, and Mr. Kenneth McMurrough, another expert witness on behalf of appellants, assessed damages at $22,750.00. On trial, the jury returned a verdict in the amount of $60,000.00, and from this judgment, appellant brings this appeal. For reversal, two points are asserted. First, “The trial court erred in allowing appellee’s witness, Tom Scott, to testify as to costs of building a road into appellee’s remaining lands north of the interstate”. It is then asserted that the judgment of $60,000.00 is not supported by substantial evidence. We proceed to a discussion of each point.

Prior to the condemnation, appellee had access to the farm from a public road, but after the taking, there is no access to the 263.85 acres lying north of the highway except by travelling over property belonging to other persons. At present, access is being afforded by travelling over land belonging to the Robinson brothers, Robert Darr, a son of appellee, explaining that the person who has leased the Darr farm is also farming the Robinson brothers property, and permission w.as granted for use of the turn row. Evidence offered by appellee was to the effect that a road will have to be built in order to obtain access to the main body of the farm.

Judge Tom Scott, County Judge of Conway County, testified with reference to the cost of such a road. He first testified that the road presently utilized is not a public road and even has a sign saying “Keep Out”. After testifying as to the most feasible place to locate a road, the judge gave an estimate of the cost involved, stating that the proposed road would be comparable to the public road used before the condemnation, except that it would be longer. He first testified that about a one foot rise would be necessary for the fill, that it would be a gravel road, giving figures for the amount of gravel, the cost of ditching, a bridge or ramp over a canal, the type of tile to be used, and dirt compaction; the total estimate for the building of the road was $25,528.86. Appellant objected to this evidence, but the objection was overruled. Judge Scott was then asked if his figures included any right-of-way costs to be paid to the landowner over whose property the road would be built, and he answered that it did not.

In Arkansas State Highway Commission v. Ptak, 236 Ark. 105, 364 S. W. 2d 794, we stated that restoration costs are proper evidence, but the costs must be fairly definite and the testimony shall reasonably define the improvements or changes to be made. Of course, this evidence is only admissible as an aid to the jury in determining the difference in the before and after value of the property. Arkansas State Highway Commission v. Speck, 230 Ark. 712, 324 S. W. 2d 796. Appellant says that construction costs, as testified to by Judge Scott, were not fairly definite inasmuch as his figures did not include right-of-way cost, and this important matter was left for the jury’s speculation.

In the first place, there is no objection by appellant’s counsel to this question. There were several objections to the introduction of Scott’s figures, but though the additional right-of-way over private land was mentioned several times, these specific questions or answers thereto were not objected to. There is thus no occasion for us to further consider or discuss this point, though offhand it appears doubtful that it contains merit.

Nor do we agree that the verdict was not supported by substantial evidence. The landowner did not testify, but appellee offered the testimony of her son, Robert Darr, who is a licensed real estate broker working for Merle Lemley Realty Co. of Russellville, Jackson Ross, an expert land appraiser, and Hobart Yarbrough, also offered as an expert witness by Mrs. Darr.

Robert Darr, in his testimony, demonstrated a familiarity with the Darr farm, testifying as to the type of soil, and stating the farm was principally used for the production of soy beans. He said that between 28 and 30 bushels of beans were produced per acre, and the rent was one-fourth of the gross of the bean crop. Darr was familiar with the boundaries of the property, elevations, access to the farm, and he testified that in arriving at the amount of damages, he took into consideration the reduction in the overall size of the farming unit, the division of the farm into two separate distinct parts, and the lack of access, after the taking, to the main body of the farm property. Though Darr did not profess to be an expert, and, for that matter, could not qualify in that capacity, his testimony was impressive mainly because of an evident familiarity and knowledge of the property.

Mr. Ross, who has testified in numerous highway condemnation cases, testified that he inspected the property, noted its location, and then made a study of the market. He mentioned that before the taking, one could drive to the farm off Highway No. 64, but that after the taking, Highway No. 64 only afforded access to 6 acres. He said the 6 acre tract could be utilized for a homesite, and the 263 acres on the north would still be agricultural land. Mr. Ross mentioned two sales of farms that he considered comparable to the Darr property, comparing location and production. Mr. Yarbrough also mentioned the sales referred to by Ross.

Appellant says that the sales mentioned were not comparable because of the difference in the type of soil in those farms and the Darr farm and appellant’s experts mentioned two different sales that they considered comparable. These witnesses, both for appellee and the department, gave their views, the reasons for those views, and presented questions of fact which could only properly be determined by the jury.

One of appellant’s principal arguments relates to the testimony of appellee’s witnesses concerning the lack of public access to the main farm. It is pointed out, that at the date of trial, nearly three years after the date of taking, permissive access had been obtained to the property; the land had been farmed during this period; the landowner was getting the same percentage of crop rent from the farm; but the landowner had apparently taken no steps to arrange for any type of permanent access to the area in question. Appellant says that a landowner is under a duty to mitigate his damages. We have so held. See Arkansas State Highway Commission v. Dean, 244 Ark. 405, 425 S. W. 2d 306. But, we do not know what really is meant when appellant complains “no steps had been taken by the landowner to arrange for any type of permanent access to this area in question”. Appellee is presently only able to reach her land through the generosity of neighbors, and the access through the Robinson brothers property seemed to have been acquired because the same tenant who had leased the Darr farm also operated the Robinson farm. Does appellant mean that appellee should approach these neighbors as a matter of getting them to agree to continue to afford her a passageway? Does the commission expect her to acquire this gratis? Should she be forced to depend upon maintaining the goodwill of these neighbors in order to reach her property? What happens when these adjoining owners’ properties are sold, or ownership is changed by death? While the law requires that a landowner mitigate his damages, there certainly is no requirement that one accept a makeshift arrangement in lieu of a permanent solution. Of course, it is not likely that either neighbor would convey a permanent easement to appellee, without charge; for that matter, they might not be willing to convey an easement at all. Yet, if Mrs. Darr had obtained such an easement for a consideration of several thousand dollars, it possibly could have been urged by the condemnor that she paid too much, and was not entitled to include such an amount as restoration costs. Zack Mashburn, an appraiser for the Highway Commission, was asked what, in his opinion, it would cost Mrs. Darr to condemn a right-of-way across two 40’s belonging to Mr. Carruthers in order to reach her property. He answered, “I’m not able to tell you what it would cost a private owner. A private owner is different entirely from a public — from the Highway Department.” When asked if the Highway Department could take from a private owner, Mash-burn replied, “Yes, but it’s entirely different when one private person buys right-of-way for a road from another private party, especially if they’re neighbors.” Further, “Well, I don’t think — I don’t think that getting the right-of-way for private — for easement for roads is too expensive.” Nor would Mr. Mashburn comment on what it might cost if condemnation proceedings had to be utilized in order to obtain a right-of:way.

Summarizing, restoration costs were proper for the jury to consider in determining the difference in the before and after value of the property. We think the evidence offered by appellee constituted substantial evidence. It is true that damages found by the appraisers on behalf of the landowner were considerably higher than the appraisals of those who testified on behalf of the commission. However, this is nearly always true, and as we have stated many times, conflicts in the evidence are a matter for jury determination.

Affirmed.

      There are really two ways of entering the property, one by utilizing the farm turn row, and the other by crossing over land belonging to a neighbor, Mr. Carruthers.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    CITY OF HARRISON v. Jean WILSON
    5-5272
    453 S. W. 2d 730
    Opinion delivered May 18, 1970

      Robert Cummins, for appellant.

      Fitton, Meadows i? Adams, for appellee.
   George Rose Smith, Justice.

This zoning case involves the appellee’s residence in Harrison, which she uses partly as a beauty shop. By permission of the municipal board of adjustment Mrs. Wilson employed an assistant who does' not live on the premises. The city brought suit to enjoin that arrangement, as a violation of the ordinance. At the trial the parties stipulated that their dispute turns upon whether the board authorized a variance, as it may do, or authorized a nonconforming use, as it may not do. The chancellor found that the exception amounts to a variance and was therefore lawfully authorized by the board of adjustment.

At the outset we observe that whether the appellant’s abstract of the record complies with our Rule 9 is a borderline question. A majority of us have decided to bypass that issue in favor of a decision on the merits.

Mrs. Wilson’s home is in a single-tamily residential district. Such a residence may be used for a home occupation, which the ordinance defines as one carried on solely by the inhabitants of the dwelling. The board, as we have said, permitted Mrs. Wilson to employ an outsider. Under the ordinance the board may authorize a variance, which is not defined, but it cannot authorize a nonconforming use, which is defined as a use not conforming to the regulations of the district in which the structure being used is located.

We agree with the chancellor. A nonconforming use is usually a lawful use that existed when the zoning ordinance was adopted and that is permitted by the ordinance to continue. A variance, on the other hand, is usually given by special permission to alleviate hardship in a particular case. C. & C. Incorporated v. Semple, 207 Va. 438, 150 S. E. 2d 536 (1966). A variance, however, cannot involve such a far-reaching departure from the regulations as to thwart the purpose of the zoning scheme or alter the essential character of the neighborhood. Anderson, American Law of Zoning, § 14.38 (1968).

This case involves, in our opinion, a permissible variance within the spirit of the ordinance. If Mrs. Wilson’s- assistant lived in. the home with her, there would be no violation of the ordinance. Presumably the only difference is that the assistant comes to work from her own home in the morning and leaves at the end of (the day. The board of adjustment, in granting the request for a variance, made it clear that Mrs. Wilson is to be allowed to have only one employee in her shop. In view of that safeguard we are not convinced that the variance at issue thwarts the purpose of the zoning scheme or changes the essential residential character of the neighborhood. To say the least, the city, as the plaintiff, has not met its burden of proving that the variance goes beyond the authority vested in the board.

Affirmed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result because I would affirm under Rule 9. Not only does appellant’s abstract fail to set out the pleadings in the case, the one most important bit of evidence in the case is not abstracted. That is Zoning Ordinance No. 614 of Harrison. Of course, we cannot take judicial notice of a city ordinance, so it is essential that the ordinance be offered in evidence. It is not possible, to my way of thinking, to be able to answer the question posed on this appeal without knowing more of the content of the ordinance than we have in the briefs in this case.

It is difficult for me to see how it can be said that a change from a home occupation carried on by the inhabitants of the dwelling to one carried on by the inhabitants and an employee is not a change of use. Maintenance of the character of the zone depends upon more than the number of people who are engaged in carrying on that use. If one employee is permitted, I can perceive of no reason why two should not be permitted because both of them might live in the same house sharing a bedroom, if the parties were so inclined. Then, I ask, would the limit on the number of employees allowed as a variance be the capacity of the bouse? If so, would bedrooms be counted in determining that capacity or would it be determined by the number of people who might be accommodated by using other rooms in the house for sleeping purposes?

Some of the other factors that enter into the character of a neighborhood are the traffic, both pedestrian and vehicular, passing through it and the number of cars to be parked on the streets.

It may well be that the ordinance in question is worded so that the use involved here is proper as a variance, but I submit that not all the members of the court can be adequately informed on this subject without a more thorough abstract.


author: Lyle Brown, Justice.

text:
    Jack BULLARD et al v. CROWN COACH CO., a Corporation
    5-5242
    453 S. W. 2d 712
    Opinion delivered May 18, 1970

      Pickens, Pickens & Boyce, for appellants.

      Hodges, Hodges & Hodges, for appellee.
   Lyle Brown, Justice.

The sufficiency of service of process in two separate personal injury suits is the subject of this appeal. One suit was filed by Jack Bullard and Ruth Bullard Chambliss, and the other by Benny and Anita Clark. The Bullards and the Clarks filed suits in Jackson County against Crown Coach Company for damages arising out of a collision, or collisions, with the latter’s bus in that county. All plaintiffs were alleged to be residents of Jackson County. Crown Coach is a foreign corporation authorized to do business in Arkansas. Summonses were served in Pulaski County on W. E. Crowder, who was alleged to be amenable to service for Crown Coach. The trial court sustained the bus company’s motion to quash service and the Bullards and the Clarks appeal. The only question properly before us is the question of validity of service. That is because the only action taken by the trial court was to quash the summonses.

Service of summons was had on W. E. Crowder, terminal manager for Central Greyhound Lines in Little Rock, Pulaski County. Crown Coach had a contract with Greyhound whereby Crown Coach used Greyhound’s terminal facilities. Under the contract, Greyhound’s terminal employees sold Crown Coach tickets, handled its freight shipments, and furnished schedule information to Crown Coach customers. At the close of each day’s business, Crowder would prepare a daily report on receipts from Crown Coach business and mail it to the latter’s home office with check to cover. Crown Coach paid a commission to Greyhound’s home office, based on the volume of business.

Appellants do not contend that Crowder was an agent of Crown Coach in the usual sense in which that term is used when referring to agents upon whom process may be served. Rather, they contend the service on Crowder is valid under certain provisions of Ark. Stat. Ann. § 27-543 (Repl. 1962). That section provides, among other things, that service may be had by serving any clerk “selling tickets or transacting any business for such owner or operator.”

Section 27-343 is an extraordinary procedure for service of summons; its use is restricted. That restriction was first enunciated in Dixie Motor Coach Corp. v. Toler, 197 Ark. 1097, 126 S. W. 2d 618 (1939), where we said the provision “was intended to afford service rights only in those cases where adequate provision had not been made by previous statutes. . .” To the same effect see Lindley v. Kincannon, 200 Ark. 772, 140 S. W. 2d 1005 (1940).

Appellants recognize the holdings in the cited cases but counter with the assertion that no other method of service was open to them. “Thus the question,” say appellants, “is simply were other methods of service open to us other than 27-343.” Section 27-350 (Repl. 1962) was a part of our Civil Code:

Service on Foreign Corporations — Where the defendant is a foreign corporation having an agent in this State, the service may be upon such agent.

We have concluded, as apparently did the trial court, that service was available under the recited statute. For several years appellee had a designated agent for service registered with the Secretary of State, but long before the date these cases were filed he died. However, the record shows that Crown Coach did have an agent in this State. It was related that Crown Coach was running five round trips daily between Little Rock and Ft. Smith in Sebastian County. (Its route does not go through Jackson County; the bus involved in the accident was chartered for a special trip.) It was further testified that Crown Coach had a superintendent, Robert Young, stationed at Ft. Smith; and that he resided there and was serving in that capacity before, during, and after the filing of these cases. It was also testified that Mr. Young was registered with the Arkansas Commerce Commission as the designated, resident agent for service in Arkansas, as required by Ark. Stat. Ann. § 73-1778 (Repl. 1957); the trial court could consider that evidence in determining whether Robert Young was a resident agent of appellee. The status of Robert Young, and his relationship with Crown Coach, were questions of fact. Hot Springs School Dist. No. 6 v. Surface Combustion Corp., 222 Ark. 591, 261 S. W. 2d 769 (1953); Keith v. City of Cave Springs, 233 Ark. 363, 344 S. W. 2d 591 (1961). The trial court did not state its reason for quashing the summonses but we have no doubt it decided that other service was available under § 27-350. We are unable to say as a matter of law that the trial court was in error.

Appellee cites a number of other statutes under which it is claimed service could have been effected. However, the facts developed before the trial court were directed only at the status of Crowder and Young as regarded their connections with Crown Coach. We perceive that the trial judge reached his conclusions on the basis of the evidence before him and therefore deem it unnecessary to explore the other possibilities.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Clement SARNA v. Margueritte FAIRWEATHER
    5-5244
    453 S. W. 2d 715
    Opinion delivered May 18, 1970

      Tanner ¿r Wallace, for appellant.

      Howell, Price, Howell ir Barron, for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of a judgment in favor of appellee for a $4,000 real estate commission. He urges five points for reversal. They are:

I. Appellee was without capacity to sue.
II Appellee did not produce purchaser ready, willing and able.
III. Appellee had knowledge of defects of title.
IV. Contracts subject to conditions not performed.
V. Appellee abandoned contract.

We shall discuss them in the order listed.

I.

Even though Mrs. Fairweather’s alleged services were rendered while she was employed as a salesman for Winrock Realty Company, she brought suit in her own name. After appellant demurred to her complaint, she amended it, adding the allegation that she was en-tided to recover the commission as the assignee of the realtor. During the course of the trial she introduced two “offer and acceptance” contracts signed by appellant, upon which she based her claim, in part at least. Each contained a statement of an agreement to pay Winrock Realty a fee of 10% for professional services.

Appellee introduced an offer by Rose Ruffin to purchase Gabriel Heights Cemetery addressed to Win-rock Realty Company and accepted by Sarna on February 16. She then introduced as her Exhibit 2 an offer from the same buyer to purchase the balance of a 60-acre tract, from which the cemetery property had been taken, accepted by Sarna on the same date. She next offered as her Exhibit 3 and assignment dated September 9, 1969, of all rights of Winrock Realty Company, under an offer by Mrs. Ruffin to purchase the cemetery property. That offer was described as having been dated February 9 and accepted by E. H. Herrod, Trustee, or Clement Sarna. That contract was actually abandoned, and no claim for commission was based thereon. Appellant’s counsel called attention to the fact that the purported February 16 agreements under which Mrs. Fairweather actually claimed compensation were not covered by the assignment. Appellee’s attorney then stated that the omission was by mistake, which he stated would be corrected quickly. Then appellant’s attorney moved that appellee’s Exhibit 2 be stricken, because appellee had no right to sue thereon, admitting that his objection was technical because appellee could merely file a new suit thereon promptly if the court dismissed the suit on this objection. Although appellee contends that appellant waived his objection, we take the waiver to go only to his right to a dismissal of the suit at that time. His counsel definitely stated that there was no waiver of the objection to Exhibit 2. Thereupon, appellee moved for a recess. After the recess, an assignment of the rights of Winrock Realty under the later contract, bearing the current date, was admitted over appellant’s objections.

Appellant argues that appellee had no capacity to sue because the chose in action which was the subject of the litigation was not her property at the time the suit was filed. We find this contention to be without merit. We have put substance above form in procedural matters, at least since the adoption of our Civil Code. Appellant does not demonstrate how he was prejudiced by the admission of this document into evidence. If he had plead surprise and asked for time to prepare to defend against this unforeseen development, or even to investigate the circumstances of the execution of the late assignment, he might well have been entitled to a continuance for that purpose. See St. Louis I. M. & S. Ry. v. Power, 67 Ark. 142, 53 S. W. 572; Williams v. Uzzell, 108 Ark. 241, 156 S. W. 843. We have been rather liberal in permitting actions to be prosecuted by the real party in interest. See Ark. Stat. Ann. § 27-801 (Repl. 1962). We permitted the holder of a note by delivery without written assignment to sue in his own name under the statute. Webster v. Carter, 99 Ark. 458, 138 S. W. 1006. In House v. Long, 244 Ark. 718, 426 S. W. 2d 814, recognizing that the primary purpose of our statute was to prevent harassment of defendants by different suits upon the same cause, we said that the real party in interest is generally conceded to be that person who can discharge the claim on which suit is brought. At the time Margueritte Fairweather offered the later assignment in evidence, she was the person who could discharge the claim, if the assignment was valid. In the absence of any showing of prejudice, or attack upon the assignment, we. would submerge substance with form if we sustained the objection made by appellant.

II.

Appellant contends that there was no proof that the prospective purchaser Rose Ruffin was ready, willing and able to purchase for want of proof of her solvency. He relies upon our holding in Cherry v. Montgomery, 242 Ark. 233, 412 S. W. 2d 845, that a mere affirmative answer by a witness as to his readiness, willingness and ability to purchase, as a statement of a conclusion, was insufficient to make a prima facie case on that point in a broker’s action for a commission and of no probative force in the light of undisputed contrary facts. The record is somewhat different here. The principal question involved in that case was the willingness of the purchaser to buy upon the seller’s terms. Even so, we agree that some evidence other than Rose Ruffin’s affirmative answer to a question as to her financial ability was necessary to constitute substantial evidence to support the judgment. Appellant’s acceptance of Mrs. Ruffin’s offer, without questioning her ability to purchase, was some indication of his satisfaction on that point. Mrs. Ruffin testified that she owned quite a bit of real estate. She stated that she had the $35,000 in cash available to make the required cash payment in that amount, even though she did not have with her any statement of her bank account or financial condition. She said that she could have obtained any amount she needed from Paul Leird, who was identified by appellant as president of Dillard Department Stores and who, in partnership with International Development Corporation, eventually purchased the stock of a corporation which owned the cemetery. Mr. Leird also participated in the sale of this stock to Mrs. Ruffin at some later date. Mr. Leird testified that he had known Mrs. Ruffin for many years and had participated in the making of various loans to her by a savings and loan association. When he wanted to sell his holdings in the cemetery company, he knew that she was a logical purchaser. We are unable to say that this testimony was not substantial basis for inferences from which the circuit court could properly find, as it did, that appellee produced a purchaser who was ready, willing and able to purchase on appellee’s terms.

III.

Appellant here advances the argument that appellee knew that he did not own the record legal title to the property involved and that his agreement with her and acceptance of offers was conditioned upon her obtaining approval of six or seven other persons. This contention is consistent with appellant’s testimony. He was corroborated in this respect by an employee. Yet, Mrs. Fairweather testified to the following:

When she inquired on or about February 6, 1966, as to the possibility of his selling other property adjoining another cemetery to Rose Ruffin, Sarna told her that he owned a cemetery and directed her to try to get an offer on it. He also told her he owned land adjoining this cemetery. He did not then tell that any other person was associated with him in this ownership.
Although Sarna had told her after first showing the property to her that he had sold the property, he said that the sale had been “defaulted” so that he had it back and assured her that it was his or that he had controlling interest, so that she need not worry, as he would “take care of it.”
When she presented an offer from Mrs. Ruffin on February 9, she took it to Sarna, who said that he had controlling interest and whatever he said was the “say so” but told her she would have to get E. H. Herrod, Trustee, an “officer” who had very little interest, to accept it. She talked with Herrod on the phone, after which he readily signed the acceptance. When she took the subsequent offer to Sarna, he said that there was no reason for him not to sign the acceptance because of his controlling interest and that it would be unnecessary for Herrod to sign.
On the date of Sarna’s acceptance of the offer of February 16, there was no discussion or indication that he did not own the property.
When the closing date approached, in response to her inquiry of Sarna as to his readiness, he told her that he had thought that he owned the property, but had learned that he did not.

The trial judge chose to believe appellee’s version, emphasizing her failure to attempt to contact any other purported owners, and stating his belief that she would have immediately done so had she been warned that this was necessary.

IV.

The offer covering the cemetery property accepted by Sarna contained the following clause:

Seller to pay for abstract being brought up to date. This offer is conditioned on Buyer obtaining the present license at the cemetery and that it be free and clear of any debt. This offer conditioned on Buyer using this license on adjoining property North of cemetery. Seller has 77 days to get clear title. This offer is conditioned that a previous offer dated February 9, 1966 to E. W. Herrod (Trustee) on Gabriel Memorial Cemetery is not consummated. In the event that the previous offer on Gabriel Memorial Cemetery is consummated, this offer shall be null and void.

Appellant contends that the statement with reference to allowance to him of time to get clear title to this part of the property shows clearly that the condition was not interposed as a condition of his acceptance but that the offer allowed him a grace period within which to obtain title if he could. He finds substantiation in the failure of Mrs. Ruffin or Mrs. Fair-weather to ask for an abstract, to inquire about a survey required by the contract or to advise him that Rose Ruffin had obtained the required approval of a cemetery license. Still, appellant signed the acceptance of the offer, thus clearly indicating that whatever terms and conditions were stated were satisfactory to him. Appellee earned her commission by producing a buyer ready, willing and able to take the property on the seller’s terms, even if the contract were unenforceable, unless the agreement between the seller and the agent required that the sale be actually consummated. Dillinger v. Lee, 158 Ark. 374, 250 S. W. 332; Fike v. Newlin, 225 Ark. 369, 282 S. W. 2d 604; El Dorado Real Estate Co., Inc. v. Garrett, 240 Ark. 483, 400 S. W. 2d 497. We find no evidence justifying a finding that the agreement to pay a commission was based upon such a condition. The written statements of the agent’s entitlement to a fee were unconditional. We have held that a seller who employs a real estate agent to produce a purchaser for lands upon terms satisfactory to him is bound by his agreement regardless of the employer’s interest in the property or his inability to convey the entire title. Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304.

V.

Appellant contends that the failure of appellee or Winrock to demand abstracts of title, to inquire about the required survey, to notify him that the necessary cemetery license approval had been obtained, to communicate with him in any way until shortly before the expiration of the 77 days allowed him to get clear title, and to pursue the matter after he advised appellee that he did not own the property, coupled with their refund of the earnest money to Rose Ruffin, constituted an abandonment of the contract. Even though it is not at all clear that this issue was raised in the trial court, we find it to be without merit, assuming that it was raised. Appellant relies upon the following statement quoted in Thompson v. Harper, 225 Ark. 47, 279 S. W. 2d 277:

If a broker does not procure a purchaser on the terms authorized and he abandons further efforts to sell to a prospective purchaser, or if negotiations between the broker and the purchaser are completely broken off and terminated, the broker will not be entitled to a commission if the owner subsequently enters into negotiations with the same party and effects a sale.

That authority is not controlling here unless the testimony of appellant, rather than that of appellee, is found to be more credible and substantial. The circuit judge found to the contrary. Thus, we cannot say that appellee either failed to find a ready, willing and able purchaser upon appellant’s terms, or that negotiations were broken off without terms and conditions of a contract for sale having been agreed upon.

Since we find no merit in any of the points relied upon by appellant, the judgment is affirmed.

Byrd, J., not participating.


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

text:
    THE HOUSING AUTHORITY OF THE CITY OF LITTLE ROCK, ARKANSAS v. FORCUM-LANNOM, Inc.
    5-5227
    454 S. W. 2d 101
    Opinion delivered May 18, 1970
    [Rehearing denied June 15, 1970.]

      Smith, Williams, Friday ér Bowen, for appellant.

      Ashley, Malone, Ashley ér Lawson and Catlett ér Henderson, for appellee.
   J. Fred Jones, Justice.

This is an appeal by the Housing Authority of the City of Little Rock from an adverse decision of the Pulaski County Circuit Court in favor of the appellee contractor, Forcum-Lannom, Inc. The appellee contractor sued the Housing Authority for delay damages in the amount of $279,708.81, allegedly caused by the Housing Authority’s breach of contractual duties in the preparation of work area ahead of work to be performed by the appellee. The Housing Authority counterclaimed for $53,500 in liquidated damages for delay under the terms of the contract. Judgment was rendered for the appellee contractor and included damage in the amount of $75,000. On appeal to this court the Housing Authority relies on the following points for reversal:

“As a matter of law appellant was under no contractual obligation to guarantee timely adjustment of utilities.
There is no substantial evidence that appellant failed to fulfill its contractual obligations.
The court erred in admitting evidence of damages allegedly caused by delays.
The court erred in allowing appellee to recover and in denying liquidated damages.”

The facts of record appear as follows: The appellee contractor was the successful low bidder on a Flousing Authority construction project for slum clearance and urban renewal development in Little Rock. The contractor of a storm sewer system. It also called for street surfacing, as well as for the construction of curbs and gutters. The contract price finally agreed upon was $665,777.26. The work was to be_ completed within 360 calendar days from July 26, 1964, and the contract provided for liquidated damages of $100 per day for delay in completion.

The provisions of the contract were many and detailed. It charged the contractor with the responsibility of laying but its own work, and with the responsibility for all work executed by it under the contract. The contract also provides that the contractor shall verify all figures and elevations before proceeding with the work and will be held responsible for any error resulting from its failure to do so. This litigation, however, arose primarily under § 409 of the contract, which reads as follows:

“WORK BY OTHERS
The removal of existing utilities required to permit an orderly prosecution of the work will be done by local agencies, unless otherwise shown on the plans. Whenever power, telephone or telegraph poles, conduit, pipe line, sewer or other utility encountered must be removed or relocated to complete the project, the Contractor shall notify the Engineer who will notify the local Owner and attempt to get prompt action. The Contractor will cooperate with the local utility owners in maintaining service to excluded areas within the Project limits and contiguous to the Project.”

The appellee alleged, in its complaint, that the appellant breached its contract in that it failed to warn appellee of any delaying condition at bidding time or before commencing work; failed to provide the appellee with contiguous segments of right-of-way free of all obstructing utilities so as to permit orderly prosecution of the work; failed to provide engineering information such as street elevations; failed to grant proper time extension which resulted in 530 separate delays; that as a consequence of appellant’s breach, the contractor was required to spend large sums of money for barricades, lights and so forth to protect the area. The appellee contractor also claimed interest on delinquent payments.

The Housing Authority denied the allegations of the contractor and affirmatively alleged that the contract provided that when utilities were encountered, appellee was to immediately notify the engineers who would contact the local agencies for removal and to facilitate same; that the contractor was to furnish day work schedules which it totally failed to do, and that such failure was a breach of the contractor’s obligation under the contract. The Housing Authority also alleged that the contractor further breached the contract by failing to set specific points and establish grades and alinements for construction; failed to verify all figures and elevations, and failed to give the Housing Authority 10 days’ notice in writing of any cause in delay, as it was required to do under the contract.

If the contractor is entitled to a judgment , for damages it sustained by reason of delay in the performance of the contract brought about by the Housing Authority and its engineers, it only follows that the Housing Authority would not be entitled to a judgment against the contractor for liquidated damages for such delay. We have examined the voluminous record in this case and have concluded that there is substantial evidence to support the judgment of the trial court. The trial court has favored us with a comprehensive written memorandum opinion, and it so nearly coincides with our own view as it relates to the substantial nature of the evidence, we feel justified in quoting it in full, as follows:

“This case was well prepared and tried. Testimony of the witnesses and the introduction of numerous meaningful exhibits required a full three-day non-jury trial. The verbal testimony offered was of such equal and convincing character to cause a decision, in the main, to be based on a careful study and analysis of the many exhibits made a part of the record.
To some extent even the exhibits sustained the conflicting position of the respective parties, but this Court concludes that they swing the scales of justice toward plaintiff with regard to some of its claims and in favor of the defendant on some of the claims urged by plaintiff.
At the outset let it be understood that this Court recognizes the premise that in any construction contract of this magnitude it should be anticipated that usual and customary delays will be encountered and that a contractor bidding on such a job must contemplate such usual and customary delays. Plaintiff broke down their claims into six classifications and overall presented approximately two hundred twenty-six separate and distinct claims for damage. With regard to initial Claim No. 1 pertaining to a re-design of multiplate covers, same is disallowed because it is felt plaintiff failed to meet its burden of proof. Furthermore, all of plaintiff’s claim relating to curb inlet and junction box construction, flares and barricades and interest on delinquent payments of partial pay estimates under the contract are disallowed even though plaintiff presented a rather strong and convincing case on these items. However, in analyzing the proof, this Court is convinced that plaintiff had no justifiable reason to believe that the work could proceed in an orderly manner which would permit the placing of ‘tops’ on such junction boxes almost simultaneously with the construction of such boxes. It is recognized that plaintiff suffered delay and the. expense of moving back and forth to complete such tops, but again in this connection, the proof seems to indicate that such procedure is normal and to be expected.
Omitting the aforementioned claims, there still remains for determination many alleged breaches of contract. It would be absolutely impossible for this Court to discuss the evidence pertaining to each individual claim and very candidly no effort will be made in this memorandum to enter into such discussion or analysis. Generally speaking it can be said that from the very, inception of the work the plaintiff experienced difficulties which appear under the proof to be unusual, abnormal and unreasonable. There can be no doubt but what the initial work was commenced at a point where all parties agreed the work should begin; that delays were immediately experienced by reason of obstacles, obstructions and hinderances beyond the control of plaintiff. The exhibits indicate that complaints were being made by the contractor early after commencement of work ánd much credence is given to these complaints because it is felt that same certainly were not registered with the view of preparing for litigation. It appears to this Court that there was a lack of communication, a lack of cooperation and coordination and that all of the blame for these deficiencies cannot be placed on the contractor.
Grievances were presented as to availability of right of way; of proper grade; of the unusual and numerous underground utilities that had not been removed. The Housing Authority, through its engineers, found much fault with plaintiff’s cleaning process; its delays in patching up streets or cuts in streets so that traffic could move more rapidly. Finally, the Housing Authority issued a stop order dated February 10, 1965 on all work other than that outlined in such order. Same remained in effect until March 11, 1965. Too, at the insistence of the defendant the plaintiff was forced to accelerate its work and this added to plaintiff’s financial burden. In general, the Court finds that there were numerous and disrupting delays and suspensions, and that the contractor was never in a position to plan and follow any normal sequence in which the work was to be done on the project; that such delays and suspensions of work in excess of those which a contractor could or should reasonably anticipate as being normal, usual and customary in the performance of a contract of this nature. Also the Court specifically finds that the defendant was under a duty of cooperation to do whatever was necessary in the project area to enable plaintiff to perform its contract in an orderly manner and that defendant breached this duty in that it failed to use its best efforts to secure the removal of the utilities, underground and overhead, and that such failure unreasonably hindered and delayed the contractor in the performance of the contract. This breach to some extent can be explained or justified on the premise that this was a highly populated area and the interest of the citizens in the vicinity must be protected. Even so, it is not felt that this plaintiff should be required to bear all of the loss. Near the end of the contract or at the conclusion thereof, plaintiff presented its claims to officials of the Housing Authority. It is evident from the record that such claims as presented by plaintiff raised issues which gave the defendant some concern. These claims ran parallel to the ones presented in this Court and included requests for allowances relating to extensions of time by reason of obstructions and weather conditions. After an exhaustive study such claims as made by plaintiff were rejected.
At the trial of this case plaintiff presented claims totaling approximately $285,000. After disallowing the claims mentioned earlier in this memorandum and after reducing all of plaintiff’s other claims for alleged damage, substantially it is the judgment of this Court that plaintiff should recover, as damages, a sum of $75,000 from the defendant.
In addition to the $75,000 awarded plaintiff, the Court finds that the Cross-Complaint of defendant is without merit. It is not believed the defendant took very seriously its position relative to liquidated damages; that on account of many problems presented to plaintiff in the performance of its contract, including unfavorable weather, it was not the intention of the Housing Authority to enforce the provision of the contract as to liquidated damages; that such claim was only injected into this action as a defense to plaintiff’s claims. Therefore, plaintiff is also entitled to receive from the defendant the amount withheld by it which the Court understands to be $53,094.67.”

The contract was entered into by the parties on July 3, 1964, and notice to proceed on the contract was issued on July 29, 1964. This entire litigation apparently stemmed from delay on the part of the contractor in completing various phases of the contract, and the delay on the part of the Housing Authority in obtaining the removal of public utilities from the area to be worked on. The contractor blamed the Housing Authority for the delay, and the Housing Authority blamed the contractor. The difficulty arose immediately following notice to proceed and both parties continued to chafe under the delays which each blamed on the other, until the contract was finally completed.

The first delay of record was apparently occasioned by a redesign of pipe which was originally scheduled for delivery during the week of July 20, 1964, but was actually received on August 25, 1964. On August 3, 1964, the contractor wrote a letter to the Housing Authority engineers stating, in part, as follows:

“This letter is to advise you that the start of installation of the 7' 11" X 5' 7" Multiplate Culvert from Station 6+69.60 to Station 11+64 will be delayed until approximately August 17th, 1964.
This delay is caused due to information, received from Armco that a re-design in the length of pipe sections has caused a complete change in their fabrication and delivery schedule of this item. . .”

The chaotic condition in regard to the lack of communication between the Housing Authority and the contractor became worse, rather than better, and resulted in numerous transmissions between the two. As an example, on November 6, 1964, the contractor requested an extension of time in a letter stating, in part, as follows:

“We further request that a ten day extension of time be granted to cover the delays in re-laying and re-locating lines mentioned herein, as well as delays caused due to the necessity of waiting for the City Water Department and the Arkansas-Louisiana Gas Company to remove their utility lines to allow proper installation of the Storm Sewer System.”

And again on December 10, 1964, the contractor wrote to the engineers as follows:

“As you are aware there are some 224 manholes, drop inlets, and catch basins in connection with the storm drainage system on this project. We are being placed in a very awkward position and being criticized for the incompletion of these units from several different agencies. We are also incurring considerable expense beyond the scope of the contract, for night watchmen, placing and maintaining flares, barricades and lights, which we intend to file for reimbursement for. We would like very much to eliminate this cost and the confusion which is being caused by not being able to complete these units as they are reached. Therefore, we urge you to establish immediately some system for establishing grades so that these units can be completed. If this is done considerable clean up can be completed and hazardous driving conditions eliminated. I do not feel that it was the original intent of the contract for the contractor to build these units in three parts as is now the case. We understand that the Housing Authority has been criticizing our company for the lack of clean up. We request that you advise them that a considerable amount of this clean up could be accomplished and would have been accomplished had we been given the grades for these structures as construction was progressing.”

On February 10, 1965, the Housing Authority temporarily suspended the work and advised the contractor that the order was made necessary due to improper construction sequence and lack of protection to the work already installed; failure to make periodical clean up during the progress of the work; and failure to provide adequate workmen, tools, and equipment for the amount of work under progress.

The suspension order was released on March 11, 1965, but after receipt of the suspension order, the contractor, on February 12, responded by letter stating, in part, as follows:

“We also wish to advise that the stated reasons for the action on the part of your Engineers are wholly unfounded in fact. On the contrary, we have been and are now being delayed on account of the failure of your Engineers to perform the necessary engineering services in a timely manner to . permit orderly and efficient progress in our performance of the work. Further, we have sustained additional delays which are continuing on account of your failure to furnish us rights of way in a timely manner. For all of these delays, we give you notice that we have sustained and continue to sustain damages for which we will make claim when the amount thereof has been ascertained.
On the basis of all of the above delaying circumstances, we request appropriate time extensions which shall be in addition to our claim for damages.
You have in the past and are presently withholding payment of certain periodical estimates which have been due for some time. You have furnished us no valid reason under the terms of the Contract for withholding these payments, and we further notify you that we are sustaining damages on this account. We insist that all periodical estimates presently due and unpaid under the Contract be paid immediately; and in the futute, that these estimates be paid promptly as required under the terms of the Contract. * * *”

On March 19, 1965, the contractor notified the engineers that grades for streets and elevations for top inlets previously requested had not been furnished, and noted that the right-of-way was lacking for all traffic diverters. This letter also complained as follows:

“We also would like to mention that, although your letter of March 18, 1965, states that certain utilities have been removed or are being removed, that in several instances the new utilities have been installed but the old ones have not been removed which does not clear the intersection for construction.”

On May 18, 1965, the Housing Authority wrote the contractor as follows:

“It has become increasingly apparent that the progress of the work is lagging in this project and we feel that it is necessary to emphasize the need to accelerate the construction in order to meet the contract deadline.”
The contractor replied to the May 18, 1965, letter as follows:
“* * * In this entire area of IB blocks, only three are free of interference. We have no control or power to expedite, and this work must be done if we are to complete. The same is true of other sections of the Project. We again state if the stops and interferences are removed from our path ahead of time, we can accelerate construction.
In reference to the by-pass, had not instructions been given to our grader operator to cut the curb ledges out, we would be 100% further along. This one mistaken order has caused a minimum delay of three weeks to the construction of the by-pass. . .”

The appellant Housing Authority continued to complain about the delay and continued to suggest that the contractor increase his work force, and the appellee contractor continued to complain about the delay in having to move his work force from place to place throughout the entire project while waiting for the appellant to obtain right-of-ways clear of utility obstructions.

Mr. George Millar, Jr., Executive Director of the Housing Authority, testified as to the financial participation in the project by the city and federal government. Mr. James L. Phillips, Supervisor of Design Engineering for the resident engineers representing the Housing Authority, testified that he received the first work program schedule sometime after the 17 th of September, 1964. Most of Mr. Phillips’ testimony was directed toward the failure of the contractor to furnish work schedules so that right-of-ways could be furnished free of obstructions ahead of the construction, and none of his testimony was directed to what efforts, if any, the Housing Authority made in furnishing right-of-ways clear of utility obstructions after it did receive, or knew of, the contractor’s work schedule, and after it received the complaints made by the contractor. In other words, the Housing Authority directed most of its proof to its counterclaim for liquidated damages for delay, and did not assume its obligation of going forward with the proof in an effort to show what it did, if anything, in obtaining the removal of utilities in response to the numerous complaints made by the contractor.

The project was finally completed on February 9, 1966, and was accepted by the Housing Authority. The appellee offered considerable evidence tending to prove that it was forced to skip around over the entire project, thereby losing time and incurring expense in moving from one area to another, because the Housing Authority had not carried out its agreement in obtaining the removal of public utility lines, poles and equipment ahead of the construction in an orderly manner. The Housing Authority offered no proof at all as to what efforts it made, if any, in attempting to remedy the complaints made by the contractor as to the conditions causing the expense, lost time and delay complained of by the contractor, in performing its work under the contract. The Housing Authority simply contends that it was unable to arrange for the removal of utilities ahead of the contractor because the contractor failed to furnish a proper schedule of its intended operation. The conflicting evidence on these adverse contentions was submitted to the trial court sitting as a jury, and we do not disturb a trial court’s decision under such circumstances if there is any substantial evidence to support it. Ark. La. Gas Co. v. Wood, 240 Ark. 948, 403 S. W. 2d 54.

It appears from the record that by mutual agreement, the work was started at the lowest point and was to proceed upgrade from the starting point in an orderly manner. It also appears from the record that when the contractor would specifically complain about obstructions causing delay in completion and resulting damage in additional cost, the Housing Authority, or its engineers, would respond only with a denial that the situation complained of existed, or with a suggestion as to how the contractor might remedy the situation, or avoid its consequences.

The judgment of the trial court is affirmed.

Fogleman, J., dissents in part.

John A. Fogleman, Justice,

dissenting. I concur with the result reached by the majority insofar as questions pertaining to the substantiality of the evidence supporting the findings of the circuit court as to the liability of appellee are concerned.

However, I am unable to say that the claim of appellee for damages for the delays due to utility obstructions is properly supported. The claim was submitted to appellant upon the basis of a statement made up by appellee’s superintendent Hubbell after the completion of the work, partly from daily reports of various foremen and partly from his own notes made on the job weekly. None of the sources of his information used in compiling the claim was available at the trial. The claim was broken down into individual items related to particular interferences with work progress. The costs for labor, equipment and “supervisory equipment” for moving away from the point where an obstruction was encountered were arrived at by an estimate made by Hubbell at the tíme the claim was prepared for presentation. None of the information as to work time lost or the distance moved on these occasions was recorded in any of the background sources utilized by Hubbell. It appears that each individual foreman would note the fact that an obstruction had been struck in his time book with no other information except the location at which his crew happened to be working on the succeeding day. Hubbell claimed that the minimum time loss ranged from a half day to a day. Hub-bell wouldn’t know the distance a crew or the equipment was moved in any instance, or the time required. Hubbell did claim to have personal knowledge of losses on certain occasions amounting to a total of $49,593.22, based upon his time and cost estimates.

Max Mehlburger, an engineer called as an expert witness by appellee, was unable to give any estimate of time lost because of work stoppages attributable to obstructions by utility facilities in the right-of-way. He indicated that the amount of time lost was dependent upon various factors, among which were distance moved in order to resume work, potential for continued full utilization of machinery and the time interruption of work forces while a new job site was being located and forces were being transferred. The best estimate he gave on a one-block move ranged from ten minutes to an hour or two. Even then it is not clear whether he included time lag in getting a crew productively employed after the move.

Ray Davis, a foreman for appellee, testified that on four or five occasions his crew would only skip 20 feet before continuing their work. Other moves were one block and still others two or three blocks. The time elapsed before return, in his recollection, ranged from a day to two or three weeks. The notes kept by him did not reveal where he moved, but he indicated that daily reports might disclose some of this information. He estimated the minimum time loss on a move to one-half day.

Hubbell’s estimates were admitted over the objection of appellant. Except for those items of which he claimed to have personal knowledge, his testimony could not have been the basis of anything except speculation and conjecture. Even those estimates were not based upon the size of the work force involved, the equipment moved or any other identifiable factor. Hubbell simply applied his “rule of thumb.” Several of his estimates of costs running in the hundreds of dollars on particular stoppages were identical to the odd penny. I have been unable to find any total of his estimates of damages well documented enough to support an allowance of $75,000 in damages.

Although I feel that a work stoppage from February 10, 1965, to March 11, 1965, ordered by appellant was unauthorized, I am unable to find evidence of appellee’s damage arising from this breach.

I agree that there is substantial evidence to support the trial court’s finding that appellee should not be liable for liquidated damages. Appellant’s long delay and comprehensive investigation before denying appellee’s claims is some indication that this is not a case for allowance of liquidated damages for delay. There was also a failure to show any relationship between the actual damages sustained and the daily amount specified.

I would reverse the judgment and remand the case for a new trial, or reduce the judgment to $102,628.59, the maximum amount for which I think it might be said that there is substantial support, if appellee is willing to enter a remittitur to that amount.

      This is the sum of 153,094.67 retained as liquidated damages and 149,533.92 upon delay claims asserted by Hubbell.


author: J. Fred Jones, Justice.

text:
    CITY OF CARAWAY v. ARKANSAS COMMERCE COMM’N et al
    5-5251
    453 S. W. 2d 722
    Opinion delivered May 18, 1970

      Carpenter, Finch ir McArthur, for appellant.

      Moses, McClellan, Arnold, Owen & McDermott, for appellees.
   J. Fred Jones, Justice.

This is an appeal by a number of citizens of the City of Caraway, Arkansas, from, a judgment of the Pulaski County Circuit Court reversing the findings and order of the Arkansas Commerce Commission and directing the Commission to issue an order granting the railroad the authority to discontinue its agency station at Caraway, Arkansas. The original petitioners have appealed under the style of City of Caraway, and the Arkansas Commerce Commission has joined in the notice of appeal and designation of record. The appellant relies on the following point for reversal:

“The judgment of the Pulaski Court in reversing the Arkansas Commerce Commission’s order is contrary to the law, contrary to the evidence and contrary to the law and evidence in finding that the station should be closed at Caraway, Arkansas.”

The facts appear as follows: On March 20, 1968, the appellee railroad company filed notice with the Arkansas Commerce Commission of its intention to discontinue its agency station at Caraway, Arkansas, such discontinuance to become effective June 24, 1968. The notice was filed under authority of Ark. Stat. Ann. § 73-809 b (Supp. 1969), which reads as follows:

“Any railroad operating in this State may file with the Arkansas Commerce Commission a notice of discontinuance, dualization or modification of any of its agency stations together with a statement certified by a proper officer of the railroad to the effect that such agency station had been operating at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding, or that operating economies would result consistent with public convenience and necessity; and such agency station may thereupon be closed or modified ninety [90] days after date of filing of such notice unless a petition for the re-establishment of such discontinued, dualized or modified agency station, signed by at least twenty-five [25] qualified electors residing in the city, town or political subdivision where the same is located, is filed with the Arkansas Commerce Commission within sixty [60] days after date of filing of the notice aforesaid. The Arkansas Commerce Commission is authorized, empowered and required to hear and consider all petitions for the re-establishment of any agency station discontinued, dualized or modified by the railroad under authority of this Act [section], which hearing shall be held within sixty [60] days following filing of petition for re-establishment and following thirty [30] days written notice of such hearing to the railroad and petitioners. In determining whether an agency station should be discontinued, dualized or modified, the standard to be employed is whether the railroad has operated the agency station at a financial loss according to standard accounting procedures for not less than one [1] year immediately preceding the filing of the notice of discontinuance, dualization or modification, or whether operating economies would result therefrom.”

The question before the Commission was whether or not the agency station at Caraway had been operating at a financial loss, according to standard accounting procedures, for more than one year preceding the filing of the notice of discontinuance, or that operating economies would result, consistent with public convenience and necessity.

The evidence pertaining to the “financial loss according to standard accounting procedures” is not as clear in the record as it might have been, but Mr. Wade Ellis, assistant special accountant for the appellee railroad company, testified that according to standard accounting procedures used by all the railroads and accepted and approved by the Interstate Commerce Commission as well as other agencies, including the Commerce Commission and courts of Arkansas, the railroad company had sustained a loss on the Caraway station for a twelve month period in the amount of $1,585.99.

Considerable testimony was directed to the specific figures of income and expenses chargable to the Caraway station. Mr. Ellis testified that in arriving at whether or not a particular station is operating at a financial gain or loss, under the standard accounting procedure adopted by the railroads and used by the appellee, the revenues chargable to the particular station include 50% of the local business and also 100% of the particular station’s proportionate share of the revenues on interline shipments received and forwarded. Mr. Ellis attempted to explain that in the case at bar, local business is defined as business or freight shipments originating at one point on the Cotton Belt and terminating at another point on the Cotton Belt. This means, as we interpret it, that when a carload of freight is shipped from Caraway to another station on the appellee’s line, or from another station on the appellee’s line to Caraway, 50% of the revenue received for that shipment is allocated to the Caraway station and 50% to the other station on the line from which the shipment originated or at which it terminated.

Mr. Ellis testified that “interline business” means what the phrase implies, i. <?., shipments originating at a station on the appellee’s line and terminating at a station on some other railroad company’s line; or, originating at a station on the line of another carrier and terminating at a station on the appellee’s line. As we interpret Mr. Ellis’ testimony in this connection, the Caraway station would receive, in addition to the 50% of the local business, 100% of the revenue received by the appellee on shipments originating on some other railroad system and terminating at the Caraway station, and would likewise receive 100% of the revenue received by the appellee for shipments from Caraway to a station on some other railroad system. Mr. Ellis testified that from these two sources for the twelvemonth period involved, there was $18,417.49 in the railroad revenues assigned to the Caraway station. He says that there was also a total of $107.58 in miscellaneous revenues credited to the Caraway station for the same period.

It thus appears that the standard accounting procedure used for the allocation of the revenues or income between the stations is a fairly simple one. The difficulty arises in the allocation of the railroad expenses between the stations in arriving at the profit or loss to be credited or charged to a particular station, and it is in this area that the accounting procedure is questioned. According to Mr. Ellis the cost item, in arriving at financial profit or loss, is figured on two bases. One is the cost of handling exclusive of station operations, and the other is the actual cost of station operations. Mr. Ellis’ testimony is not perfectly clear on this point, but it appears that the company’s cost of handling exclusive of station operations, includes such items as the cost of locomotive and rolling stock maintenance and operation, as well as such items as roadbed and track maintenance. He testified that under the standard accounting procedures used by the appellee railroad, the amount of this cost to be charged to a given station is determined by the use of a so-called transportation ratio which is 60.42%. According to Mr. Ellis the transportation ratio of 60.42% is simply the ratio of the operating expenses, exclusive of expenses peculiar to the individual stations such as utilities and station agent and employee wages, to the revenue received over the entire transportation system.

Mr. Ellis says that under the accepted standard accounting procedures, in order to ascertain the profit or loss chargable to a single given station, the total earnings for that station ($18,525.07 in the case at bar) are multiplied by the transportation ratio to obtain the amount chargable to that station as its proportionate share of the operating cost exclusive of station operations. C$11,192.83 in the case at bar). Mr. Ellis testified that in determining the entire expenses chargable to a given station, the cost of handling, exclusive of station operations, is simply added to the cost of station operations. According to Mr. Ellis’ testimony the total cost of operating the Caraway station, including actual cost of the Caraway station operations in the amount of $8,918.23, and including Caraway’s portion of the cost of handling exclusive of station operations in the amount of $11,192.83, and as ascertained through use of the transportation ratio as above set out, amounts to $20,111.06, and results in a net loss of $1,585.99 over the twelve month period of time involved.

The question of whether the method accounting used by the appellee railroad company, in this case, is the best and most accurate method available for fairly and accurately determining the amount of profit or loss attributable to a given station on a railroad transportation system, was not the question before the Commerce Commission at its hearing in this case, and is not the question before us in this appeal. There is considerable competent evidence in the record before us, that the accounting procedures used by the appellee railroad company, and the financial loss shown thereby, were arrived at “according to standard accounting procedures” as required by the statute, and there is no evidence at all in this record to the contrary.

Commissioner Harkey apparently devised his own, and to him a more simplified accounting method, through which he concluded that the Caraway station had shown a profit of $7,971.36 rather than a loss of $1,585.99 as testified to by Mr. Ellis. Mr. Harkey explains the manner in which he arrived at his results in the following words:

“I arrived at it by taking the figures on Proponent’s Exhibit No. 5, Column 1, the total system railway operating revenues freight service, and dividing that into column No. 3, the total system station expenses, which gives me a ratio of 3.45% and I then took that 3.45 percentile and multiplied it times the amount in column 1 of Proponent’s Exhibit No. 1 which gave me a figure of $639.12 to go in column 7, Proponent’s Exhibit No. 1, which added gives a figure of $10,553.71 and subtracted from the figure in column 5, Proponent’s Exhibit No. 1 gives a net profit of $7,971.36 for the station at Caraway.”

We had difficulty in following Mr. Ellis’ testimony, but we find it difficult indeed to follow and understand Mr. Harkey’s. How Mr. Harkey arrived at his 3.45% ratio he makes fairly clear. This ratio represents the percentage of profit over loss throughout appellee’s entire railroad system. Mr. Harkey says that he then multiplied that ratio times the amount in column 1 of proponent’s exhibit No. 1 and obtains a figure of $639.12, which he considers at cost of station operations chargable to the Caraway station. Column 1, in proponent’s exhibit 1, contains a list of the particular months involved and the total earnings of $18,525.07 for the Caraway station, as shown in column 5 of exhibit 1, is the only column in exhibit 1 which gives the $639.12 figure obtained by Mr. Harkey when multiplied by 3.45%

So apparently Mr. Harkey multiplied the percentage of income over appellee’s entire system by the total earnings credited by the Caraway station and obtained the amount of $639.12 as the cost of station operations chargable to the Caraway station. He apparently then added this cost of station operations to the cost of handling, exclusive of station operations, and arrived at a figure of $10,553.71 apparently as the total cost of station operations. He apparently then subtracted this $10,553.71, the total cost of station operations, from $18,525.07, total earnings for the Caraway station, and thereby arrived at a net profit for the Caraway station of $7,971.36.

Commissioner Panich apparently also arrived at the conclusion that the appellee railroad had operated its Caraway station at a financial profit of $400 more or less than the $7,971.36 found by Mr. Harkey, but Mr. Panich did not attempt to explain the accounting procedures he used in arriving at his conclusion. Mr. Harkey and Mr. Panich did not derive their methods of accounting from the evidence before them and there is no evidence at all that the accounting procedures they did use were standard accounting procedures as required by the statute. Apparently Commissioners Harkey and Panich used their own separate and private accounting procedures in arriving at their conclusion. All we know of the procedure used by Mr. Panich is stated by him as follows:

“Well I don’t know, of course, how Mr. Harkey arrived at his figure of $7,971.00 but I do know how I arrived at my figure and we are not but $400.00 apart and we are not accountants but we have calculated within a few hundred dollars by entirely different systems of calculation but we have come to approximately the same figure of profit for that station up there.”

Of course, neither Mr. Harkey nor Mr. Panich were witnesses in this case but they were two of the three members of the Commerce Commission who were charged with the duties and responsibility of hearing testimony from sworn witnesses, and were charged with the responsibility of applying the law to the facts as presented in this case. We do not say that the Commerce Commission does not have the authority to set up and establish a standard accounting procedure for the determination of whether a railroad has operated a given agency station at a financial loss or profit during a given period of time, but we do say that this has not been done. The members of the Commerce Commission have no more authority than the railroad companies have, to employ “entirely different systems of calculation” or such system of accounting procedures as to the member or company may seem right, just and convenient in connection with a petition for establishment or discontinuance of railroad service. This was the exact point we had before us in the case of CRI&P R. R. Co. v. Ark. Commerce Comm., 243 Ark. 661, 420 S. W. 2d 917. In that case there was no evidence that the accounting procedures used were standard accounting procedures and we, like the Commissioners in the case at bar, had no authority to adopt our own nonstandard accounting procedures in determining profit or loss in the operation of a given station. We felt compelled in that case to affirm the judgment of the trial court which affirmed the action of the Commerce Commission in denying the authority to discontinue the operation of the station at Mansfield, and in that case we said:

“Appellant’s case as to financial loss must fail for two reasons. First, there is no evidence to show whether there was financial loss for one year immediately preceding the notice of discontinuance, i. e., from September 27, 1965, to September 26, 1966. Secondly, there is nothing to show that the accounting procedures used in this case are ‘standard accounting procedures’ in the sense of the Act.”

In the later case of Ark. Commerce Comm. v. K C S Ry. Co., 244 Ark. 912, 428 S. W. 2d 83, the Commerce Commission denied the Kansas City Southern Railway Company authority to close its station located at Winthrop in Little River County, and the circuit court reversed the Commission. On appeal to this court, the issues were almost identical to those in the case at bar. The appellant contended for reversal that the trial court erred in finding that the station was operated at a loss for one year, and that the trial court erred in finding that operating economies would result to the appellee consistent with public convenience and public necessity if the station was closed. As to the first point, this court said:

“The decisive issue here is whether appellee showed, by ‘standard accounting procedures,’ that the station operated at a loss (as required by the statute).
It is undisputed that the exhibits introduced by appellee before the Commission showed the station did operate at a loss for the required time. The only question then is, was the showing arrived at ‘according to standard accounting procedures’? This was one of the decisive issues in the case of CRI&P RLD. Co. v. Ark. Commerce Comm., 243 Ark. 661, 420 S. W. 2d 917. There the Commission and the trial court held against appellant because no such showing was made. There we said: ‘There was no testimony to show that the method used by appellant . . . was according to standard accounting procedures required’ ... by the statute. That is not the situation in the case here under consideration, as is shown by the undisputed testimony of appellee’s witness, Mr. Johnson.
Q. Is this allocation of 50% to origin and destination stations standard railway accounting procedure?
A. Yes, sir, it is.
Q. Is the allocation of system expenses which you have described in Exhibits No. 1 and No. 2 standard railway accounting procedure?
A. Yes, sir.
No evidence was offered by appellant to contradict Johnson’s testimony, and none to show he was not competent and qualified to testify.”

It is obvious that the railroad companies have attempted to work out an accounting procedure for the determination and allocation of profit and loss to a specific station as related to the entire system of the particular railroad, on a basis whereby each individual station is charged and credited with the actual profit and loss peculiar to that particular station; and at the same time, is required to bear its own proportionate share of the expenses or cost incident to the entire system, such as the maintenance of the rolling stock and the track facilities between stations. The standard accounting procedures used by the appellee railroad company in this case must be accepted by the Commission and this court as being in compliance with the statute so long as the accounting procedure is standard and until some better procedure is devised and standardized.

As to the operating economies consistent with public convenience and necessity in the case at bar, the record reveals that the car shipments from and to Caraway for the period under consideration, amounted to 98 cars and that only eight individual shippers were involved. Eight individuals or corporations received 59 cars and four individuals made shipments out of Caraway during this one year period. By far the largest shipment of commodities received at the Caraway station, was tank carloads of Thermo gas used for domestic home heating and cooking purposes. By far the greatest number of carload shipments from Caraway consisted of wheat during the month of June. The wheat shipment in June involved 42 cars out of the total of 98 cars for the year. It was shown by the evidence that, although Caraway is in a prime cotton producing area, cotton is no longer shipped over the spur railroad from Caraway, but is shipped by motor truck directly from the gins at Caraway to the compresses on the main line at Blytheville. The record further reveals that by far the largest shipper, as well as receiver of the appellee’s railroad service at the Caraway station, is the Degelow Cooperative located approximately three miles from Caraway.

It is apparent from the testimony adduced that practically all business conducted at the Caraway station between the appellee and its customers is carried on by telephone. The usual procedure followed in obtaining cars and checking on shipments to and from the Caraway station, is that an interested customer calls the local agent at Caraway, who in turn calls the agent on the main line at Blytheville, who in turn obtains the information from the proper' source and transmits it back by telephone to the agent at Caraway, who in turn transmits it to the interested person. The uncontradicted testimony indicates that the station agent at Caraway is required on the average, to spend approximately 45 minutes of his eight hour workday in the business of the appellee in connection with transportation of commodities in and out of the Caraway station.

The judgment of the circuit court is affirmed.