author: Frank Holt, Justice. John A. Fogleman, Justice.

text:
    L. A. Green Seed Company of Arkansas v. Moses Williams
    5-4859
    438 S.W. 2d 717
    Opinion Delivered March 24, 1969

      Arnold, Hamilton & Streetman for appellant.

      Paul K. Roberts for appellee.
   Frank Holt, Justice.

Appellee is a commercial grower of tomatoes and appellant is a distributor and seller of tomato seed. Appellee brought this action to recover damages for breach of warranty by appellant in the sale of tomato seed. When the trial court overruled appellant’s demurrer to appellee’s complaint, as amended, the appellant refused to plead further. Thereupon the trial court, sitting as a jury, proceeded to award damages to the appellee, after taking evidence upon this issue.

The appellant first contends that it was error for the trial court to overrule its demurrer to the complaint as amended. This contention is based upon the premise that appellee did not purchase a product sold by the appellant. In his complaint appellee asserts that appellant packaged, labeled and sold tomato seed as “Green’s Pink Shipper” variety, knowing the seed would be purchased by the public to raise and sell “Pink Shipper Tomatoes” for a profit; that this seed was so represented and sold to Brown Seed Store, which retailer then so represented and sold the seed to Guy Jones (who is engaged in the business of growing tomato seedlings and selling the plants to commercial tomato growers); that appellee purchased, from Jones, plants grown from this particular seed, transplanted and raised them “in accordance with accepted standards of farming” on three-fourths of an acre of his farm; that appellant represented and warranted the seed from which the tomato plants were grown as being “Green’s Pink Shipper” tomato seed, when, in fact, it was some unknown variety of tomato seed which produced an inferior tomato; that appellant expressly and impliedly warranted to appellee, through Brown and Jones, that its product was “Pink Shipper” variety of merchantable quality and fit for intended purposes; and that because of breach of warranty, the appellee was unable to market his tomatoes which spoiled in the field, resulting in a crop loss of $900 caused by the alleged breach of warranty.

In testing the sufficiency of a complaint against a general demurrer, all well pleaded allegations and all inferences that can be reasonably drawn therefrom are admitted to be true. United Interchange, Inc. v. Rowe, 230 Ark. 905, 327 S.W. 2d 547 (1959). Every reasonable intendment and presumption is to be made in favor of the complaint and a general demurrer should be overruled if the facts stated, together with every reasonable inference, constitute a cause of action. Donham, Commissioner v. Neely Co., 235 Ark. 710, 361 S.W. 2d 650 (1962); U. S. F. & G. Co. v. Moore, 233 Ark. 703, 346 S.W. 2d 524 (1961).

A cause of action exists, based upon a breach of warranty, where one sells seed to an immediate purchaser upon a misrepresentation of a certain variety and fitness, and the purchaser, who relied upon the warranty, is entitled to recover damages from the seller for tho breach of warranty. Earle v. Boyer, 172 Ark. 534, 289 S.W. 490 (1927). And the same is true where inferior plants are sold and the purchaser relies upon a warranty of fitness. Smeltzer v. Tippin, 109 Ark. 275, 160 S.W. 221 (1913).

Appellant, however, argues that appellee’s cause of action, if any, is against the seller of the tomato plants and cannot reach the appellant because it sold appellee nothing. Appellant contends that it has made no warranty, express or implied, with respect to the tomato plants purchased by appellee and that its warranty, with respect to the seed, does not extend to and reach appellee, a remote purchaser, because appellee is a purchaser of the tomato plant and not the seed which was distributed by the appellant. We think appellant’s argument is without merit.

The defense or shield of lack of privity is now removed where an action is brought against a seller of goods to recover damages for breach of warranty. Ark. Stat. Ann. § 85-2-318.1 (Supp. 1967). That statute reads:

“The lack of privity between plaintiff and defendant shall be no defense in any action brought against the manufacturer or seller of goods to recover damages for breach of warranty, express or implied, or for negligence, although the plaintiff did not purchase the goods from the defendant, if the plaintiff was a person whom the manufacturer or seller might reasonably have expected to use, consume, or be affected by the goods.”

Plainly, a seller of tomato seed might reasonably expect a commercial grower of tomatoes (as appellee in the case at bar) to use or be affected by the seeds distributed and sold on the market by the seller. The appellee is an integral part of the distributive chain for production purposes.

According to the allegations, which are admitted as being true, appellee purchased tomato plants and raised tomatoes from plants which were grown from the very seed distributed, warranted and sold by appellant as “Green’s Pink Shipper” variety, when, in fact, the seed was of an inferior and unknown variety. To be sure, the seed changed in natural form into plants after appellant placed it into channels of commerce. Yet, such transformation was an expected result by the laws of nature and not by the hand of man. We hold that when a seller of tomato seed warrants it to be of particular fitness and variety, the warranty extends in the distributive chain to a purchaser of tomato plants which are grown from the seed for commercial purposes.

Appellant next asserts that the complaint is defective because it does not contain an allegation of notice to the appellant with respect to the claimed breach of warranty. This contention is based upon Ark. Stat. Ann. § 85-2-607(3) (a) (Add. 1961) which requires a buyer to give notice of a breach of warranty to the seller within a reasonable time after the buyer discovers, or should have discovered, the alleged breach. We must agree with the appellant that' the appellee’s complaint is subject to a demurrer since it does not contain an allegation of notice.

The issue of allegation of notice, under this section, seems to be one of first impression in our state. However, it appears that in jurisdictions which have had occasion to interpret this section, the giving of notice must be pleaded as a condition precedent to recovery. See Avant Garde, Inc. v. Armtex, Inc., 4 UCC Rep. Serv. 949 (1967), a decision of a New York Supreme Court; Nolowka v. York Farm Bureau Coop. Assn., 2 UCC Rep. Serv. 445 (1963), a decision by a Pennsylvania trial court. In Avant Garde the court said: * * * While plaintiff alleges unfitness, there is no allegation of notice of defect given within a reasonable time or at any time (Uniform Commercial Code, § 2-607[3] [a]).” The court held the complaint failed to state a cause of action for failure to allege notice. The pleading of notice was required in United States v. American Radiator & Stan. San. Corp., 115 F. Supp. 422 (Dist. Ct. Minn. 1953) in an action for breach of implied warranty brought by the United States against suppliers of a subcontractor on a construction project. Further, this requirement appears to be the majority view under the Uniform Sales Act, or where there is a statutory requirement of notice. Smith v. Pizitz of Bessemer, Inc., 122 So. 2d 591 (Ala. 1960). There the court said:

“* * * it appears that a majority of the American courts which have considered the problem have held the notice requirement applicable in a case of the nature now before this court and that such notice should be alleged in the complaint as a condition precedent to recovery. [citing cases]”

See, also, Maxwell Co. v. Southern Oregon Cas Corp., 158 Ore. 168, 74 P. 2d 594, 114 A.L.R. 697 (1937); Mawhinney v. Jensen, 120 Utah 142, 232 P. 2d 769 (1951); Sweetheart Baby Needs v. Texilon Co., 166 N.Y.S. 2d 838 (1957); Hellenbrand v. Bowar, 16 Wis. 2d 264, 114 N.W. 2d 418 (1962); Nekuda v. Allis-Chalmers Mfg. Co., 175 Neb. 396, 121 N.W. 2d 819 (1963); Salecki v. Coca Cola Bottling Co. of Hartford, 20 Conn. Supp. 143, 127 A. 2d 497 (1956); Title Ins. & Trust Co. v. Affiliated Gas Equipment, 12 Cal. Rptr. 729 (1961); Faucette v. Lucky Stores, Inc., 33 Cal. Rptr. 215 (1963).

The Committee Comment following § 85-2-607 reflects that it also intended that notice be a condition precedent to any recovery since it refers to the notice as the “notification which saves the buyer’s rights.” The purpose of the statutory requirement of notice to the seller of breach of warranty is to enable the seller to minimize damages in some manner, such as correcting the defect, and also to give the seller some immunity against stale claims. Of course, the sufficiency of notice and what is considered to be a reasonable time within which to give notice of breach of warranty are ordinarily questions of fact for the jury, based upon the circumstances in each case. See Committee Comment, UCC § 85-2-607 and Uniform Laws, Annotated (UCC) § 2-607.

The appellee relies upon Donham, Commissioner v. Neely Co., supra, where we said that a complaint was not fatally defective because it did not specifically allege that a taxpayer had complied with certain rules and regulations of our statutes and that any noncompliance was a question of fact and an affirmative defense which could be raised by proper plea or answer. We do not consider this case applicable. The case at bar is a breach of warranty action. We have held, in an action based upon a breach of warranty, that where a notice of defect is required, it is necessary for a buyer to allege and prove, as a condition precedent to a recovery, that there was compliance with the requirement of notice. Williams v. Newkirk, 121 Ark. 439, 181 S.W. 304 (1915). See, also, Carle v. Avery Power Machinery Co., 185 Ark. 799, 49 S.W. 2d 599 (1932).

We hold that the giving of reasonable notice is a condition precedent to recovery in this action and that the giving of notice must be alleged in the complaint in order to state a cause of action.

Nexi appellant argues that the damages [$746.16] allowed to the appellee by the court, sitting as a jury, arc excessive and unwarranted by the evidence. We do not agree. Inasmuch as we find it necessary to reverse this case for failure to allege notice of breach of warranty, we deem it unnecessary to discuss this point. However, we think it proper to observe that Ark. Stat. Ann. §§ 85-2-714 and 85-2-715 provide for the recovery of damages, including consequential damages, resulting from a seller’s breach of warranty. In a Committee Comment on our Uniform Commercial Code (§ 85-2-715) we find:

“4. The burden of proving the extent of loss incurred by way of consequential damage is on the buyer, but the section on liberal administration of remedies rejects any doctrine of certainty which requires almost mathematical precision in the proof of loss. Loss may be determined in any manner which is reasonable under the circumstances. ’ ’

The judgment is reversed and the cause remanded with the right of the appellee to amend his complaint to contain the allegation of notice. Otherwise, the demurrer will be sustained.

Fogleman and Jones, JJ., concur.

John A. Fogleman, Justice.

I concur. I agree with the result of that part of the majority opinion which holds that the complaint was not demurrable because appellee bought plants from Jones rather than the tomato seed sold by appellant. I would not base that holding on the statute eliminating lack of privity as a defense, however, nor would I hold that the warranty of fitness and variety extends to a remote purchaser of tomato plants which are grown from the seed for commercial purposes, as a matter of law.

I think, for example, that it is necessary that this remote purchaser buy the seed in reliance on the warranties. Under the liberal construction that we give pleadings in testing them on demurrer, I feel that the allegations are broad enough to suggest that appellant did rely on the warranties, and to raise a fact issue as to the extension of warranties.

The statute eliminating the defense of privity [Ark. Stat. Ann. § 85-2-318.1 (Supp. 1967)] is actually an amendment of the Uniform Commercial Code as adopted in Arkansas. It eliminates lack of privity as a defense by the manufacturer or seller of goods. The word “goods” is defined [Ark. Stat. Ann. § 85-2-105 (Add. 1961)] to mean all things which are movable at tlie time of identification to tlie contract for sale other than money in which the price is to be paid, investment securities and tilings in action. While the definition also includes the unborn young of animals, and growing crops, it is not broad enough to include something changed in form from a seed to a plant.

Yet, I believe that the principles of the common law discussed in Buckbee v. P. Hohenndel, Jr., Co., 224 F. 14, (7th Fir. 1915) would support appellee’s cause of action here. It was held in that case that:

“Where seed is sold to a dealer under a warranty that it is of a special variety, and the dealer in turn sends it to a grower, the warranty is carried forward to the ultimate purchaser, if it appears that such understanding was part of the first sale, and the measure of damages for breach of warranty is the difference in market value between the crop produced and such crop as the specified variety of seed would have produced under like conditions.” (Quoting syllabus.)

In so holding, the court used the following language :

“* * * The seller who gathers and packs the seed for sale is necessarily required to know its variety for the intended use by growers, and his warranty thereof, whether directly made to the grower or to the intermediate dealer for resale to growers, may justly render him chargeable for the damages suffered by the growers, when the circumstances of his sale authorize the inference that the warranty was to be thus carried forward to the growers. Indemnity for misrepresentations so carried forward is within the contemplation of his contract of sale to the dealer, and allowance thereof is not open to the objection of remote or speculative damages.”

It avo aid not be logical to say appellee had a cause of action against Jones that Jones might assert against Brown Seed Store and BroAvn Seed Store against appellant but that appellee could not recover from appellant. In effect, avo avoided such a circuity of action in Ford Motor Co. v. Tritt, 244 Ark. 883, 430 S.W. 2d 778. I think that it should also be rejected under the facts in this c;ase, but I do not think that the common laAV rule could be further extended in the distributive chain, that is, I do not believe that a supermarket or canning factory Avhicli purchased the tomatoes from appellee should be permitted to recover from appellant.

Jones, J., joins in this concurrence.


source: Caselaw Access Project

author: Carretón Harris, Chief Justice.

license: Public Domain

text:
    Arkansas State Highway Commission v. Anna Wahlgreen, et al
    5-4846
    438 S.W. 2d 694
    Opinion Delivered April 1, 1969

      Thomas B. Keys and Kenneth, R. Brock for appellant.

      Philip H. Loh and George J. Gambiano for appellees.
   Carretón Harris, Chief Justice.

This is a highway condemnation case. The Arkansas Highway Department filed a complaint and declaration of taking of certain lands owned by appellees, consisting of Tract No. 512, containing 27.73 acres (this tract being taken in fee simple), and Tract No. 512E, consisting of .58 acres (condemned as a temporary construction easement). The entire property owned by appellees prior to condemnation consisted of 83 acres lying along the west side of State Highway No. 95 for approximately 1.150 feet, and extending westward from said highway for % mile. The lands are located % mile north of the XIorrilton city limits. On trial, the jury returned a verdict in the amount of $60,000.00 as just compensation to appellees, and from the judgment so entered, the Highway Department brings this appeal. For reversal, it is asserted that the verdict is excessive in that it is not supported by substantial evidence, and it is also contended that the trial court ¡erred in instructing the jury on a question of fact.

As to the first point, in Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 349 S.W. 2d 133, we said:

“Where there is any evidence of a substantial nature, which, by positive statement or reasonable inference, when given its strongest probative value, to support the finding of the jury, the verdict then will be sustained, although from the record presented to this court, it might seem to be against the preponderance of the credible evidence.”

Accordingly, we are only concerned with whether there was substantial evidence to sustain the award. The landowners offered the testimony of four witnesses. The first Avas Lloyd Pearce, a licensed real estate broker, consultant, and appraiser, of Little Rock. Mr. Pearce has testified as an expert appraiser in numerous instances in state and federal courts, and is admittedly an ¡expert in this field. In the case before us, he described the study he had made in making his appraisal, including the strip maps and construction plans of the highway department, quad sheets showing the topography of the land, aerial photographs from the Soil Conservation Service, 150 sales of real estate in and near the city of Morrilton, and a physical inspection of the property. He said he took into consideration the close proximity of the lands to the city of Morrilton, the type of road serving the property, the frontage on the road, the neighborhood surrounding the property, the proximity to commercial and industrial areas, topography, elevation, drainage, the distance from schools and churches, and the location of utilities. Pearce testified that growth of the city of Morrilton will naturally extend to the north. The testimony reflects, and the maps also to some degree, that the growth of the city to the south is blocked by the Arkansas River. To the west, growth is hampered by Point Remove Creek, and the area east of the city is taken over mostly by Mghway commercial development.

The Avitness was rather thorough in explaining how he reached his appraisal figures, but we see no need of a detailed discussion. Maps AA^ere used to show the strip of land taken. The strip bisects Tract 512 diagonally in a southeasterly to northwesterly direction, said strip being approximately 2,550 feet long, and varying in width from about 250 to 1300 feet, severing Tract 512, leaving 39.31 acres south of Interstate 40, with no access from Highway 95, and no vehicular access from the west, and 15.96 acres remaining on the north and isolated from Morrilton by the interstate highway. Water and sower are located 1,000 feet south of the property along Highway 95, and the area immediately south has been platted as Hart and Welter’s Subdivision. The witness said that the area south of Interstate 40 is landlocked after the taking. He estimated the value of the 83 acres before the taking at $73,700.00, representing the fail- market value of the property as of August 2, 1967. He estimated the value after the taking at $8,-700.00, thus leaving the damage at $66,000.00.

In reaching his figure of market value before the taking, Pearce mentioned a number of sales that he considered comparable, and he concluded the 39.31 acres which lie south of the interstate after the taking to have been damaged $800.00 per acre; the damage to the 15.97 acres north of the interstate was placed at approximately $600.00 per acre. There is access to this last area at the northeast corner of the property which is located near the interchange. The appraiser felt that the highest and best use of the property before the taking would have been a residential subdivision. After the taking, he considered the area south of the interstate to have no value, because of being landlocked, and he was of the view that the highest and best use of the property north of the interstate would be for a rural homesite.

Charles I). Owens of Morrilton, engaged in the insurance and real estate business, placed a before taking value on the property of $66,400.00, and an after taking-value of $7,800.00, or a difference of $58,600.00.

Gene Hewitt, engaged in the insurance and real estate business in Morrilton, testified that the before taking value was $70,000.00 to $83,000.00, and the after taking value was $13,000.00. The witness said that it was near enough to utilities in Morrilton that he considered the highest and best use before the taking to be for subdivision. Joe Wahlgreen, one of the owners, testified find the land was worth $83,000.00 prior to the taking, and nothing after the taking.

TY. E. Hayes of Hartman, Arkansas, an appraiser of 6 years’ service with the Highway Department, and who had appraised property for the Farm Security Administration, testified that the soil was of a very thin type, a light whitish clay of poor fertility, and that the utilities available were rural utilities, though there is natural gas. He stated that the west property line is Cedar Street, an old roadway which has not been closed, and he considered that this roadway gave access to the acreage south of the interstate, thereby preventing it from being landlocked. However, the witness stated that this was “potential” access to the property, and no one testified that a motor vehicle can be driven to this land at the present time. Hayes said that the property at the northeast corner would be enhanced by the taking, and would make a good location for a service station. This was contrary to the opinion of Pearce, who earlier testified that the southeast corner of the interchange (not owned by appellees) would be most valuable fox-such a purpose. Hayes considered the highest and best use for the 83 acres to be agriculture, with highway frontage influence, axxd he estimated the market value of the whole property prior to the taking to be $20,-000.00. He gave the after value as $11,000.00, or a difference of $9,000.00.

K. T). Suthmer, a real estate appraiser employed by the Highway Department for the last 7% years, although testifying that he was not “too familiar” with Hayes’ appraisal, reached the identical damage figure, i.e., $9,-000.00, Suthmex- giving the property a before taking value of $20,250.00, and an after taking value of $11,-250.00 He too said that the acre in the northeast corner of the property had been enhanced because of the interstate; that it now had a more valuable use than formerly, in that it could be used for most any type of commercial use, particularly a service station. He compared the value of this corner to two similar (in his view) pieces of property at Pottsville and Atkins that had been sold to oil companies, the former sale bringing $20,000.00 for one acre, and the latter sale, $30,000.00 for 1.3 acres. ¡didInner also agreed with the other highway appraiser that the south residual of 31.39 acres had not been damaged because of being landlocked. To the contrary, he stated:

“There is a road that leads down to it and through it * * * it is not the best in the world, but it has access. It could be a good access, except for one little culvert that has rotted out. It could be put into shape very easily.”

There is simply no way to reconcile expert opinions relative to land values where the difference in the testimony varies from $9,000.00 to $70,000.00. All gave some basis for their opinions.

Of course, the jury is the trier of the facts. They heard the witnesses on both sides testify. They saw the aerial photographs and exhibits. Possibly many were already familiar with the area. They evidently concluded that appellees’ testimony was correct in that there was no access to the south 39 acres, and no enhancement of the land in the northeast corner. It is possible that they were somewhat dubious of the testimony presented by the state’s witnesses, since, though the testimony reflects that the appraisals were independently made, the two witnesses came up with an identical figure on damage. Be that as it may, we are certainly unable to say that there was no substantial evidence to support the award of $60,000.00. To take appellant’s view, it would be necessary that we arbitrarily decide from the printed record that appellees’ witnesses were wrong, and appellant’s witnesses were light. Such action would be contrary to our case law.

Among other instructions given by the court to the jury was the following:

“You are further instructed that it is tmdispuled that the Arkansas State Highway Department tooh from and out of the 83 acres owned by tlie defendant, a strip of land for the purpose of construction of Interstate 40. The compensation, or damage, to which the defendant is entitled is the difference in the fair market value of the whole 83 acres considered as a unit before the taking, and the fair market value of the remainder immediately after the taking.”

Appellant says that it was prejudiced by the italicized language, wherein the court said that it was undisputed that the strip of land was taken from, and out of, the total 83 acres. The department says that this charge to the jury gave rise to the implication of severance damages, and that one of its witnesses made no such allowance because he felt that enhancement offset any damage suffered.

We find no merit in this allegation. The jury had viewed all maps, these exhibits showing the exact land taken, and the exact land remaining. The exhibits clearly show that the strip contained was taken from and out of the 83 acres, and there can be no dispute of this fact. There is nothing in the instruction which says that the jury must award severance damage. No language is used which precludes the jury from finding that the remainder was enhanced in an amount sufficient to offset damages. The giving of the instruction did not constitute error. On the whole case, we find no reversible error, and the judgment is affirmed.

It is so ordered.

      This opinion was based on Pearce’s view that the southeast corner is a “swing comer.” He testified: “For oil companies the sites, the primary corner to this interchange would be the southeast corner of the interchange, since most tourists or people traveling, going on a trip, fill up before they leave, any traffic out of the City of Morrilton would naturally fill up here. If they’re going north, they would gO' on across and then fill up, and on out. Any traffic to the east would fill up at this point and go east. That is called a swing corner is the description that oil companies give it.”

      Suthmer said independent appraisals were made.

      It developed that both of these locations were on “swing ''orners.”

      Language italicized denotes our emphasis,


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

text:
    Bill Stout v. The State of Arkansas
    5-5379
    438 S.W. 2d 698
    Opinion Delivered April 1, 1969

      Heocton & Wiggins for appellant.

      Joe Purcell, Atty. Gen. and Bon Langston, Asst. A tty. Gen. for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal in this case. Bill Stout was charged with the crime of murder in the first degree for the killing of Winfred Lee Jones on March 27, 1967. On the first trial, he ivas found guilty of manslaughter, and given a sentence of two years in the state penitentiary. This court reversed the judgment specifically because the trial court did not require the Prosecuting Attorney to produce a written statement of Stout and another witness, although in cross-examining defendant, the prosecutor made frequent references to the purported statement made by Stout in writing which conflicted with defendant’s testimony. This court also, though finding that the defendant was not entitled to an instruction on self-defense, held that he would have been entitled to an instruction covering excusable homicide, and an instruction was suggested in line with that in the case of Curry v. State, 97 S.E. 529 (Georgia, 1918). On the second trial, Stout was again convicted of manslaughter, but, instead of receiving a two-year sentence, was given a five-year sentence. From the judgment entered in accord with the jury verdict, appellant brings this appeal. Five points are urged for reversal, which we proceed to discuss, though not in the order listed by appellant.

It is asserted that the evidence is insufficient to support the verdict, and appellant’s motion for a directed verdict should have been granted. This point is the last raised by appellant, and less than two pages of the brief are devoted to it. It is apparently recognized that this contention is difficult to support, and we quickly find it to be without merit. The facts in this case are fully set out in our opinion on the first appeal, Stout v. State, 244 Ark. 676, 426 S.W. 2d 800, and there is no need to detail them again. Suffice it to say that appellant shot and killed Jones with a pistol at the former’s home, Stout testifying at the first trial that Jones arose from a couch and “went to his left hand pocket again,” and that he (Stout), thinking Jones might have a pistol, then fired, though he had no intention of hurting Jones. He said that his only purpose in firing was to shoot over the victim’s head and frighten him into leaving the house. At the second trial, Stout did not take the witness stand; the state’s case was based on the testimony of officers, who testified relative to conditions found at the house when they arrived, and also to appellant’s statements with regard to the shooting. In his brief, appellant, in referring to the statements made to officers, says:

“* * * Through these statements there is one consistent dominant theme. Stout claimed that he did not intend to harm or injure Jones. * * *
“How can Stout’s statements that he did not ini end to harm Jones be separated from his statement that he pulled the trigger. It seems to us that the jury was not at liberty to pick and choose. If they believe he did the shooting, could they logically reject for no reason whatever, his statement that he did not intend to hit Jones.
“This is not the case where the jury actually heard Stout and could determine what to believe and not to believe. All the Jury heard was the officers repetition of what Stout said to the officers. ’ ’

Appellant overlooks the fact that one of the officers (John Ames) testified that appellant, upon being asked why he shot Jones, replied, “Oh, Ames, it was just jealously, I guess.” For that matter, the jury, of course, did not have to accept as the full truth everything told the officers by appellant. They had the right, in viewing all the circumstances, to find the statement that he did not intend to hurt Jones, to he entirely self-serving.

The majority of the court is of the view that this judgment should bo reversed, but the opinion in this (-ase cannot serve as a precedent for future cases, because no four members agree on any one ground of reversal. The writer, together with Justices Brown and Holt, thinks error was committed as asserted in appellant ’s Point 3, said point stating that tho court erred in instructing the jury that Stout could be sentenced to a greater period of imprisonment than two years. The penalty for voluntary manslaughter is imprisonment for a period of not less than two, nor more than seven years. Ark. Stat. Ann. § 41-2229 (Repl. 1964). As stated, Stout only received a two-year sentence at the first trial, but was given a five-year sentence on the second occasion. It is the position of the state that, since this sentence is within the term prescribed for the offence of voluntary manslaughter, the judgment is entirely legal and valid. All agree that a defendant cannot be re-tried for a higher degree of homicide than that in the first trial. See Johnson v. State, 29 Ark. 32. The state courts of the several jurisdictions are not in agreement as io the proper rule. Even the federal courts have disagreed. For instance, in Patton v. State of North, Carolina, 381 F. 2d 636 (1967), the facts reveal that Patton, in October, 1960, was convicted of armed robbery after a plea of nolo contendere, and sentenced to twenty years’ imprisonment. No appeal was taken, but in 1964, Patton applied for a state post-conviction hearing, and on the basis of the decision in Gideon v. Wainwright, 372 U.S. 335, was awarded a new trial. He pleaded not guilty, but was convicted by the jury on the original indictment. It was brought to the attention of the court that Patton had already served nearly five years for the offense. The judge imposed a sentence of twenty-five years, and then deducted five years for the amount of time served. The United States Court of Appeals for the Fourth Circuit affirmed the holding of the Federal District Court (Western District) of North Carolina that the sentence was so fundamentally unfair as to constitute violation of the due process and equal protection clauses of the Fourteenth Amendment. Tn doing so, the court said:

“* * * Although the trial judge paid lip service to the idea of crediting Patton with that portion of the initial twenty-year sentence already served, he actually increased Patton’s punishment by imposing, in effect, a twenty-five-year sentence and then deducting five years for the time served. Thus, as a result of seeking and obtaining a new trial, the prisoner, who originally would have been eligible for parole in October 1965, now, it is agreed, will not become eligible until February 1970.
“Eegardless of whether the action of the sentencing judge is verbalized as a twenty-year sentence without credit for the five years already served, or as a. twenty-five-year sentence with credit, the sentence is to compel the defendant to serve five years longer to become eligible for parole, than he would have been required to sei’ve had he not asserted his constitutional right to a fair trial.
“* * * In order to prevent abuses, the fixed policy must necessarily be that the new sentence shall not exceed the old. Seldom will, this policy result in inadequate punishment. Against the rare possibility of inadequacy, greater weight must be given to the danger inherent in a system permitting stiffer sentences on retrial — that the added punishment was in reaction to the defendant’s temerity in attacking the original conviction. Even the appearance of improper motivation is a disservice to the administration of justice.”

The court also held that the constitutional protection against double jeopardy is violated if an increased sentence, or a denial of credit, is permitted on re-trial, stating:

“Double jeopardy, rather than being a single doctrine, is actually comprised of three separate though related rules, prohibiting (1) reprosecution, for the same offense following acquittal, (2) re-prosecution for the same offense following conviction, and (3) multiple punishment for the same offense.”

Pointing out that the Supreme Court has said in Green v. United States, 355 U.S. 184 that an accused may not be reprosecuted for the offense of which he was acquitted at the first trial, the Circuit Court then held that a penalty at the second trial, more harsh than the one received at the first trial, had the effect of placing him twice in jeopardy of punishment for the same offense. This holding was based partly on the “implied acquittal” doctrine, and in part on a different aspect of double jeopardy — the prohibition against multiple punishment. Ex Parte Lange, 85 U. S. (38 Wall.) 163. See also Kennedy v. U. S., 330 F 2d 26 (1964).

To the contrary, the United States Court of Appeals for the Third Circuit held in United States v. Russell, 378 F. 2d 808 (1967), that constitutional standards of due process were not violated though Russell received a more severe sentence when he was sentenced the second time. The court said:

“* * * Accordingly, it can be said the later sentence imposed by Judge Shugart was well within the limits fixed by the law, as the petitioner could have been sentenced for a period up to ten years on each count. Here, the decision to impose the sentence given within the discretion of the trial judge who had an opportunity to see and hear the accused and his witnesses.”

Still, a third view was taken by the United States Court of Appeals for the First Circuit, wherein it was held that the sentencing court should be permitted to impose a greater sentence upon retrial if circumstances disclosed in a pre-sentencing report warranted such, a step. Marano v. U. S., 374 F. 2d 583 (1967). It is interesting to note, however, that the court of appeals held that the trial court is not justified in increasing a sentencie, following a successful appeal, on the basis of additional evidence offered at the second trial. The Supreme Court of Wisconsin, in State v. Leonard, 159 N. W. 2d 577 (1968), held that on retrial, if there is a second conviction, a trial court is barred from imposing an increased sentence, unless events occur subsequent to the first imposition of sentence which warrant an increased penalty; even then, the court is required to affirmatively state its grounds for increasing the sentence. The opinion points out, however, that a numerical majority of the decisions from other jurisdictions support the position that upon reconvietion and resentencing for the same crime, the trial court may increase the sentence, and, in fact, may assess any sentence it believes appropriate within the maximum set by statute; it is stated that these courts have primarily premised this holding on the theory that, in appealing from a conviction, a defendant assumes the risk of a more severe sentence, and he must accept the hazards, as well as the benefits, that could result therefrom.

In the case before us, in taking the view that Stout could not receive a greater sentence upon the second conviction than was given him at the first trial, the three justices heretofore mentioned are not particularly persuaded by Patton v. State of North Carolina, supra. State v. Leonard, supra, or the views of any court, state or federal, which has held an increased sentence on a second trial to be a violation of constitutional standards. Rather, we take this view because we feel that this question has already been passed upon by our own court. In the case of Sneed v. State, 143 Ark. 178, 219 S.W. 1019, the defendant was convicted of the crime ot murder in the first degree, it being charged that he had poisoned his wife, and the jury fixed his punishment at life imprisonment. This conviction was reversed, and Sneed was again tried, and again convicted of first degree murder. Sneed v. State, 159 Ark. 65, 255 S.W. 895. During the second trial, several references were made to the first trial, and the court instructed the jury that the former trial of the case and the result were not to be considered by the jury in reaching a verdict, except that, if the jury should find the defendant guilty of first degree murder, they could only fix his punishment at imprisonment in the state penitentiary for life. The appellant complained that this instruction was error, and that the jury should have been told that they could not consider the former verdict for any purpose. In holding that no error had been committed, this court said:

“* * * There was no error in the instruction, and it was a proper one to give. References to the former trial had been made throughout this trial, during the selection of the jury, the opening statement of counsel, the taking of testimony, and the arguments of counsel before the cause was finally submitted. The instruction therefore was proper, and, if any prejudice had been lodged in the minds of the jury by these references, this instruction had the effect to remove it. The instruction was tantamount to telling the jury that they could not consider the former trial or verdict as evidence in the cause, and thus fully met appellant’s objection in this respect. The effect of the instruction was to tell the jury that, as appellant had once been put upon trial for murder in the first degree and the punishment in that case fixed at life imprisonment, if they should return a verdict of guilty they could not punish him by death. It was proper for the court to instruct the jury as to the form of its verdict and as to the punishment, in case they should return a verdict of guilty, so that they might not be ■misled and possibly return a verdict in a form that would result in a mistrial because of former jeopardy.’

The above italicized language, as far as the three justices who adhere to this view are concerned, is conclusive. Article 2, Section 8, of the Arkansas Constituí ion, cited in Sneed, provides, inter alia, that “no person, for the same offense, shall be twice put in jeopardy of life or liberty.” It is true that in Sneed the result of our decision was that a man could not be twice placed in jeopardy of losing his life; of course, it is generally considered that losing one’s life is a greater punishment than imprisonment, but we see no legal distinction, nor does our Constitution make any such distinction. The quoted portion of Article 2 says that one shall not be twice placed in jeopard)" of “life or liberty.” The fact remains that the holding in the second appeal, Sneed v. State, supra, was that Sneed could not be given a greater punishment on the second trial than he received at the first trial — even though he was tried the second time for the same degree of murder'— identically the same offense — for which he had originally been tried.

As stated, the view expressed herein is that of only three justices, hut even though a majority of the court agreed, such an error would not call for a reversal, for it could be remedied by reducing the prison sentence to two years.

Justices Fogleman, Byrd, and Holt, are of the opinion that appellant’s requested instruction No. 2 should have been given. This instruction told the jury that, if it found that Jones was intoxicated and engaged in such actions as constituted an apparent threat to Stout and his family, and that Stout was endeavoring to remove Jones from his home; that Stout reasonably believed that Jones was armed with a knife and might do him bodily harm; and that Stout fired the fatal shot for the purpose of attempting to scare or frighten Jones, then the killing did amount to excusible homicide, and Stout should be acquitted. It is the writer’s view, along with that of Justices Smith, Brown and Jones, that any possible error in failing to give this instruction was cured by the giving of appellant’s requested instruction No. 5, which told the jury that acts committed by misfortune or accident should not be deemed criminal where it appeared there was no evil design, intention or culpable negligence, and that, if the jury believed that the death of Jones was the result of an accident, free from the elements mentioned, Stout should be acquitted. A concurring opinion setting out the views of the aforementioned justices, who feel that the failure to give the instruction constituted reversible error, is handed down on this date.

Certain remarks were made to the jury by the attorney for the state, which appellant contends constituted a comment by that official on the failure of appellant to testify. The writer, and Justices Byrd and Holt are of the opinion that there is merit in this contention. This finding of error is principally based on the fact that the state’s attorney repeatedly made statements which could well impress the jury with the fact that there was some reason why appellant did not testify. Some of the statements made were as follows:

“ * * * I want to call your attention to this one thing. Whatever evidence was offered here was offered by the State of Arkansas. The lips of the Jones boy are sealed. They are sealed in death, and he cannot come here to tell you the story that lie knows and the story that happened out at the Bill Stout home on this particular day. We can’t bring him back here to testify; but I want to say to yon, Ladies and Gentlemen of the Jury, that there was a house full of people there, and how many of them has the defendant brought to you, — ”
“* * * Now then in the other trial the defense was self-defense — ”
‘ * * * The defendant in this case does not even claim that he was about to do him bodily harm or that there was anything that he was afraid of — ”

In Perry v. State, 188 Ark. 133, 64 S.W. 2d 328, the prosecuting attorney commented to the jury:

“In fact, the defendant has not denied a single, solitary iota of evidence that .has been given against him from the stand here today.”

We held that the effect of this language was to call to the jury’s attention the failure of the defendant to testify, and reversed the conviction.

Another suggested error relates to the fact that the record reflects that the court told the jury that appellant was being tried on a charge of involuntary manslaughter. This obviously was a typographical error, but there is no reason to discuss the contention, since it is not likely to arise on another trial.

The next asserted error deals with opening remarks of the state’s attorney; though no objection was made, we discuss the contention, since the case is being remanded and likely will be tried again.

In his opening statement, the prosecutor mentioned the fact that written statements taken from witnesses would bo introduced in evidence, and he added, “those statements will be here, and you all may look at them. There is going to be some deviation from those statements, at least by the defendant.” Actually, none of the statements were introduced for any purpose, and, as previously stated, the appellant did not take the stand. Further, the prosecutor said:

‘ ¡ * # # that there was no effort made at all by the deceased to try to harm Mr. Stout, and you will be confronted with the fact that it is pure fabrication for him to come in here and tell you that he was being attacked with a knife in order to make you believe his side of the story.”

The purpose of an opening statement is to inform the jury of the evidence that will be offered on behalf of the party represented, and, of course, the state’s attorney should not refer to evidence that he has no intention of offering. For that matter, we do not know just how the statements from the witnesses could have been referred to unless a witness testified contrary to his or her original statement, and the prosecutor had claimed surprise and obtained the permission of the court to cross-examine the witness with regard to the inconsistency. In Shands v. State, 118 Ark. 460, 177 S.W. 18, we said:

“ * * * The affidavit and the letter set out in the statement of facts were not competent as affirmative matter tending to show the guilt of the accused, but they became competent for the pnrpose of contradicting and impeaching the prosecuting witness when she testified that appellant had never at any time iiad intercourse with her. But for this denial they would not have been competent. But the denial made them admissible, as the party producing a witness, when surprised by adverse testimony, may show, for the purpose of impeachment by contradiction, that the witness has made prior statements inconsistent with the one made on the stand. ’ ’

There is no reason for the attorney representing the state to comment upon the evidence that will be offered by the defense — for the very simple reason that he does not know what evidence will be offered. This is made obvious by the fact that the prosecutor made reference to what the defendant (appellant) would say in testifying, when in fact, it developed that the defendant did not testify at all.

In view of a retrial, a similar matter should be mentioned. It is claimed that error was committed during the testimony of Jannie Medlock Chambers, a stepdaughter of appellant, who was placed on the witness stand by flic state. The alleged ¡error relates to the prosecutor’s reference to a purported conflicting written statement made by the witness following the shooting. We have just pointed out that it is permissible to cross-examine one’s own witness when one is genuinely surprised by the testimony given, and states that fact immediately to the court; also when a witness is known to be hostile, the court has discretion to allow latitude in the examination of such a witness. Ward v. State, 85 Ark. 179, 107 S.W. 677. Otherwise, the reference is error.

One other alleged error refers to the fact that a small son of the deceased commenced to cry and left the courtroom in tears while the prosecuting attorney was making his argument. There is nothing in the record to reflect that this was “staged,” and the trial court admonished the jury to disregard the incident.

Reversed and remanded.

Fogleman, Byrd & Holt, JJ., concur.

George Rose Smith and Jones, J'J., would affirm.

John A. Fogleman, Justice.

Judges Byed, Holt and I are of the opinion that the trial court’s failure to give appellant’s requested instruction No. 2 constituted reversible error. This instruction is strikingly similar to one approved by this court in Maddox v. State, 217 Ark. 849, 233 S.W. 2d 542. That one was held to be sufficient to justify the refusal of self-defense instructions because it was responsive to the appellant’s theory of the case. The instruction there told the jury that if it should find from the evidence' ‘ ‘ * ® * that the deceased, in a violent, riotous and turbulent manner undertook to force his way into the restaurant of the defendant, then the defendant would have a right to use a show of force to prevent such forcible entry by the deceased, and if the deceased did so undertake to force his way into the restaurant and the defendant presented a pistol in order to prevent his act of forcibly entering, and a scuffle ensued over the pistol and the pistol was accidentally fired and [Sheppard] was killed, you will acquit the defendant.’ ” It is consonant with the instruction suggested in Curry v. State, 148 Ga. 559, 97 S.E. 529 (1938), to which we said, on the former appeal in this case, appellant would have been entitled. See Stout v. State, 244 Ark. 676, 426 S.W. 2d 800. Even though self-defense is not now asserted, the principle involved is the same.

There is no doubt that the instruction requested was a correct one. One has the right to eject another from his home, whether trespasser or invitee, and to use force to do so when quiet means fail. McCoy v. State, 8 Ark. 451; See Annot., 67 L.R.A. 544, 25 A.L.R. 523, 32 A.L.R. 1543, 34 A.L.R. 1488. The failure to give a correct instruction must be presumed to be prejudicial error unless it otherwise appears. Beevers v. Miller, 242 Ark. 541, 414 S.W. 2d 603. The majority hold that the giving of appellant’s requested instruction No. 5 was sufficient to cure any error. We do not feel that this position is tenable.

Excusable homicide is homicide by misadventure, i.e., where a person in doing a lawful act, without any intention of killing, unfortunately kills another. Ark. Stat. Ann. § 41-2243. Stout v. State, supra. Nowhere in any instruction given did the court indicate to the jury that, if they found appellant’s theory of the case to be correct, he was doing a lawful act. Appellant was entitled to have the jury so advised. Under similar circumstances, we have held that one who contended that a weapon was accidentally discharged, while he was engaged in lawful acts of self-defense, was entitled to an instruction on justifiable homicide even though an instruction on accident was given. Jordon v. State, 238 Ark. 398, 382 S.W. 2d 185. The same principle applied here would require a reversal of this case.

Even if tlie court’s instructions could be said technically to cover the matter in a general way, the defendant was entitled to have the court correctly and clearly apply the law to the facts of the case, unless it appears that prejudice has not resulted. Beevers v. Miller, 242 Ark. 541, 414 S.W. 2d 603. We do not see how we can say there is no prejudice here, because of the deficiency above stated.

      They were notified of the shooting by telephone from Stout.

      These statements were held valid on the first appeal, and not controlled by Miranda v. Arizona, 384 U.S. 436, as urged by appellant at that time,

      Patton entered the plea without benefit of counsel.

      Green had first been convicted of second degree murder, and the court held that he could not be retried for first degree murder for the reason that the jury in the first trial impliedly acquitted him of the charge of first degree murder.

      Russell had pleaded guilty originally, but, under Gideon v. WainwrigM, supra, was awarded a new trial.

      We have no provision for a “pre-sentencing report” in this state. This report advises the court of events that have occurred subsequent to the first sentence, both good and bad, which the court may take into consideration in fixing the second sentence.

      The court majority was not convinced that the trial court relied solely on new information obtained subsequent to the first trial, and held that the increase in penalty was not justified.

      Emphasis supplied.

      Of course, unless a greater sentence is received on a second trial, double jeopardy is not involved simply because a criminal case is retried after reversal. In Johnson v. The State, 29 Ark. 31, Chief Justice English, speaking for the court, said:
      “It is very well settled that where a defendant is tried and convicted of a criminal offense, and a new trial is granted him on his own motion, he may be tried again for the same offense.
      “It is true that, by a constitutional provision as well as by the common law, no man can be twice put in jeopardy of life or limb for the same offense; but, where the first jeopardy has resulted in his conviction, it is rather a merciful interposition of the court, than any invasion of his rights, to set aside the conviction upon his own application in order to afford him the opportunity of another trial.”


author: George Rose Smith, Justice.

text:
    Alice Back v. Marie Duncan
    5-4822
    438 S.W. 2d 690

      Opinion Delivered April 1, 1969

      Wright, Lindsey & Jennings and Philip 8. Anderson, Jr. for appellant.

      Willis V. Lewis for appellee.
   George Rose Smith, Justice.

This is an action for personal injuries sustained by the appellee when her car was struck from the rear by a car being driven by the appellant. There was no serious question about liability, for both parties testified that Mrs. Duncan’s car was struck while it was standing still in a line of traffic in downtown Little Rock. The jury fixed the damages at $13,040.

There is really only one point for reversal, though the appellant subdivides it for the purpose of argument. During the trial the court admitted in evidence a letter written by Dr. Wade. A few minutes later the judge decided that he had made an error and instructed the jury to completely disregard the letter. It is now insisted that the error was so prejudicial that the defendant’s request for a mistrial should have been granted.

Mi’s. Duncan testified that she suffered severe injuries to her neck and shoulders. About two months after the accident she obtained a part-time job in the offices of Drs. Flack, Hedges & Wade. Some three months later Dr. Flack discharged her. Mrs. Duncan testified that she was not physically able to clo the work and that the doctors were justified in letting her go.

Before the plaintiff rested her case the court allowed the defendant to call Dr. Flack out of turn. He contradicted Mrs. Duncan’s testimony, saying that she was discharged not for phvsicial inability to do the work but for other reasons that are now unimportant. On cross-examination the plaintiff’s attorney unsuccessfully attempted to have Dr. Flack identify the letter from Dr. Wade.

Later in the trial Mrs. Duncan’s attorney recalled her to the stand and succeeded in introducing the letter from Dr. Wade, which reads as follows:

8/16/67

To whom it may concern:

Marie Duncan has had persistant neck and back aches. She is also in the middle of a law suit and has had some trouble with a family problem.
It was our decision that Marie should not be working and trying to do her housework at the same time until she has gotten over some of her physical complaints.
We are very sorry to loose [sic] her and in the future hope to be able to rehire her. She is very good with patients and also good lab work.
W. I. Wade, M.D.

As we have said, the judge soon withdrew the letter from the case and instructed the jury to disregard it.

Counsel for the appellant cite our rule that an error is presumed to be prejudicial unless the contrary affirmatively appears. Safeway Stores v. Gross, 240 Ark. 206, 398 S.W. 2d 669 (1966). In the nature of things, however, that rule does not apply when the trial judge has undertaken to correct an apparent error by instructing the jury to disregard it. In that situation we accord much latitude to the trial court and reverse the judgment only if there is an abuse of discretion involving manifest prejudice to the complaining party. Briley v. White, 209 Ark. 941, 193 S.W. 2d 326 (1946). Thus in effect we sustain the trial court unless prejudice affirmatively appears.

Here we find no reversible error. An award of a mistrial is a step so drastic as to be the exception rather than the rule as a means of correcting an error. For such a step to be warranted it must be apparent that justice cannot be served by a continuation of the trial. Perhaps the best illustration of such an extreme error is the deliberate introduction by a litigant of proof that conveys information which the law excludes as a matter of policy. In that vein we have held that a mere admonition to the jury cannot correct flagrant misconduct of counsel such as inexcusable references to a “rapsheet” supposedly involving a witness on the stand, Shroeder v. Johnson, 234 Ark. 443, 352 S.W. 2d 570 (1962), or a deliberate and gratuitous reference to insurance coverage having no permissible bearing upon the issues in the ease. Ward v. Haralson, 196 Ark. 785, 120 S.W. 2d 322 (1938).

This case does not present such a situation. Dr. Wade’s letter was confined to commonplace matters such as Mrs. Duncan’s injuries, which the jurors had already heard about, a family problem about which the letter supplied no information at all, a suggested connection between Mrs. Duncan’s physical condition and her discharge, and the firm’s apparent satisfaction with Mrs. Duncan’s services. Had counsel for the plaintiff ■eliminated any possible infraction of the hearsay rule by putting Dr. Wade himself on the witness stand, every statement in the letter might have been repeated for the jury’s consideration. In the circumstances we have no hesitancy in saying that the court’s admonition to the jury was amply sufficient to nullify any prejudicial effect the introduction of the letter might have had.

Affirmed.


author: Lyle Brown, Justice.

text:
    J. C. French, et ux v. Kermit L. Richardson, et al
    5-4855
    438 S.W. 2d 714
    Opinion Delivered April 1, 1969
    Wright, Lindsey & Jennings for appellants.

      Lawson E. Glover for appellee.
   Lyle Brown, Justice.

This is an action in trespass instituted by J. C. French and wife, appellants here, against Kermit L. Richardson and Malvern Broadcasting Company. Richardson and wife own the broadcasting Company. The station is located on the Richardson lands, while the broadcasting tower is situated on adjacent lands belonging to appellants. Plaintiffs below sought the removal of transmission wires running over their lands and connecting with the broadcasting station tower; they also sought damages allegedly caused by continuous trips across the French lands in servicing the lines and tower. The chancellor held that the Frenches knew of the existence of the transmission wires and tower at the time they bought the lands and he declined to disturb the broadcasting company’s use of that equipment and access thereto. In so holding, the court rejected plaintiffs’ theory that they were bona fide purchasers without notice of the broadcasting company’s unrecorded easement lease covering the French lands.

In 1963 Mr. and Mrs. French acquired a twenty-five acre tract from Builders’ Lumber & Supply Co., Inc. The deed contained the regular warranties, the only exception being this recitation: “Subject to any and all rights, easements and privileges now existing.” Five years previously, Builders executed a conveyance to Malvern Broadcasting, granting an easement lease over, across, and on the lands subsequently deeded to the Frenches. The easement covered a transmission tower already located thereon. It was for the stated purpose of “keeping, maintaining, and using its tower and transmission line.” Those facilities served the broadcasting station located a short distance away and on land not the subject of this litigation. The easement lease was for a ten-year period with a ten-year option to renew. The recited consideration was one dollar. The instrument was not recorded until after the Frenches purchased the lands on which the tower is located.

Here we have the Frenches purchasing a tract of land which at the time of their purchase was burdened with a servitude represented by an unrecorded easement lease. The law governing the respective rights of the parties in that situation is well settled. The prevailing rule is found in Am. Jur., Easements, § 156 (1957):

It has often been said that in order to affect the purchaser of a servient estate the easement if unrecorded, must be one that is apparent as well, as necessary and continuous, or the marks of the servitude must be open and visible. Accordingly, it is held that if the servitude cannot be discovered by an inspection of the premises, the purchaser is not charged with notice of its existence, except in so far as he may be charged with constructive notice under the recording laws. On the other hand, the proposition that, a purchaser of real estate is charged with notice of an easement where the existence of the servitude is apparent upon an ordinary inspection of the premises is sound beyond question.

A case in point is Hannah v. Daniel, 221 Ark. 105, 252 S.W. 2d 548 (1952). Hannah and Daniel purchased adjoining lots from J. O. King. Daniel’s purchase was prior to that of Hannah. Shortly after Hannah moved upon his lot he observed his neighbor Daniel constructing a pond which overlapped on the Hannah property. Daniel was proceeding on the strength of an oral easement allegedly obtained from King before Hannah’s purchase. In deciding for Hannah, this Court quoted the rule found in Waller v. Dansby, 145 Ark. 306, 224 S.W. 615 (1920):

The general rule is, that whatever puts a party upon inquiry amounts in judgment of law to notice, provided the inquiry becomes a duty as in the case of vendor and purchaser, and would lead to the knowledge of the requisite fact, by the exercise of ordinary diligence and understanding. Or, as the rule has been expressed more briefly, where a man has sufficient information to lead him to a fact, he shall be deemed cognizant of it.

An examination of the evidence in Hannah v. Daniel convinced this Court that at the time Hannah purchased his property there was no physical improvement located on that property which would reasonably make it. apparent that a servitude existed. In the case at bar the evidence is clearly to the contrary, as will shortly be revealed.

The tower and transmission lines supported by poles were erected in 1958 on what was to become the French property. The tower is over 200 feet in height and the poles are similar to ordinary public utility poles. J. C. French, a Malvern business man, conceded that he was fully cognizant of the tower and poles being on the land which he proposed to and did purchase. He explained that he contemplated possibly moving his LP gas business from downtown and constructing a new building on the property purchased; that the new building would be located some distance south and east of the tower and on highway frontage; that the tower and lines would not interfere with his LP gas operation; and consequently he made no inquiry about an outstanding easement. He frankly stated his disappointment to be that he was not able, as he anticipated, to draw lease rent from appellees. Some sixty days after the purchase, Mi*. French’s son-in-law, who was pasturing cattle on the land, noticed an employee of the broadcasting company mowing a narrow strip to the tower and also mowing around it. It was at that point that French inquired and was advised of the easement lease.

Mr. French’s purchase of the property with full knowledge of the existence of the tower and transmission lines was sufficient to put him on notice of the existence of a servitude. Had he exercised his duty to make inquiry iio would have easily discovered the existence and conditions of the lease easement. He is therefore charged, under our settled law, with notice of the easement.

Appellant argues that it would be inequitable to burden the French property with a “no-rent easement lease.” Malvern Broadcasting actually paid a substantial consideration for the easement and improvements thereon. The towTer was erected at a cost of some $5000. Appellee Richardson paid $42,500 to become the sole owner of the station and the evidence is convincing that the value of the easement, with the improvements thereon, figured substantially in the purchase price paid. Finally, Richardson might have been derelict in not recording the lease easement; and the real estate broker who handled the sale, and who had knowledge of the outstanding easement, might have avoided this litigation had he informed Mr. French of that instrument. Yet there was a combination of two factors which should have aroused inquiry on the part of French. First, his deed recited that it was subject to any easements and privileges then existing. Secondly, the improvements made under the easement were in notoriously open view and their existence was well known to French. He admittedly never discussed the transaction with his vendor, nor did he make any inquiry of the real estate broker about the significance of the quoted restriction in the deed.

Affirmed.


author: John A. Fogleman, Justice.

text:
    Florence Carolyn Balch Montgomery v. The First National Bank of Newport, Arkansas, as Adm., et al
    5-4778
    439 S.W. 2d 299
    Opinion Delivered April 1, 1969

      Lee Ward for appellant.

      Pickens, Pickens & Boyce by Kenneth II. Castleberry for appellees.
   John A. Fogleman, Justice.

This appeal is a sequel to Montgomery v. First National Bank of Newport, 242 Ark. 329, 414 S.W. 2d 109. The substance of the complaint of appellant is stated there. AYe held that it stated a cause of action against the administrator of the estate of Lucas G. Balch, appellant’s father and her legal guardian, and the surety on his bond as guardian. AYe held that a demurrer contained in an amended answer filed by appellees did not properly raise the defenses of limitations and laches because the complaint contained allegations that Balch concealed the fraud charged by his daughter in her complaint and because the statute of limitations did not begin to run until Balch, as a fiduciary, had repudiated his trust.

On remand the cause was tried on the pleadings filed prior to the first appeal. The defenses raised by the answers of appellees were the statute of limitations, a release of Balch and his surety by receipt executed by appellant, a general denial, and laches. The latter defense was based upon allegations that appellant’s action was brought after the death of her father, the only witness familiar with the entire matter. It was also alleged that virtually six years intervened between the close of the guardianship on which appellant based her cause of action and the filing of this suit. It appears to be undisputed that the assets of the guardianship consisted of a $10,000 savings and loan certificate issued by-Newport Federal Savings and Loan Association on November 28, 1951, United States Savings Bonds having a maturity value of $2,900, and a bank account amounting to $882.58. Most of these assets were investments of proceeds from National Service Life Insurance on her brother. After a trial on the merits, appellant’s complaint was found to be without merit by the chancery court and was dismissed with prejudice.

Appellant relies on two points for reversal. They are:

I. Alleged error in allowing attorney Fred M. Pickens, Jr., to testify for appellees;

II. The tried court’s finding the appellant’s claim ivas with oíd merit is against the preponderance of ttie evidence.

We shall discuss these points in the order listed.

i.

Lucas G-. Balch was appointed legal guardian of appellant, his daughter, in the probate court of Jackson County in 1951. Appellant became 18 years of age on August 15, 1959. Balch died about November 21, 1965, in Jackson County. At all times during the guardianship, the guardian was represented by the law firm of Pickens, Pickens and Boyce, or its predecessor. Fred M. Pickens, Jr., was the attorney in this firm who actually represented and advised Balch. He assisted Mr. Balch in the preparation of the guardian’s final accounting and all matters pertaining to the termination of this guardianship. He obtained an order on October 27, 1959, vesting the assets of the guardianship in appellant. He also drafted a receipt, waiver of notice and entry of appearance for the signature of Florence O. Balch. This instrument, in which appellant acknowledged receipt of all moneys and property due her and consented to the entry of an order in the probate court confirming the final accounting of the guardian, was purportedly executed in his presence. Appellant denied executing this instrument. The order confirming' the final settlement and discharging the guardian and his surety was obtained by this attorney.

Appellant alleged that she never received any of the money or property of the guardianship and that she was unaware of the existence of this receipt until January 12, 1966. Although her name was signed to a request for payment endorsed on the United States Savings Bonds and dated October 29, 1959, she testified that she did not sign the bonds or receive any of the proceeds. According' to Pickens, the bonds and savings and loan certificate were kept in his safe until appellant and her father came to his office after the entry of the order vesting the assets in her. Pie testified that the savings and loan certificate was delivered on the same date that appellant signed the bonds and that a new certificate dated November 1, 1959, issued to appellant was placed in his custody and put in his safe. He also testified that this certificate was delivered bjr him to Mr. Balch on January 26, 1960, when Balch advised Pickens that appellant and her husband wanted to use it to buy a motel owned by Balch.

The record indicates that Pickens did not participate in any of the proceedings in this case except as a witness. All of the pleadings on behalf of appellees are signed by either Wayne Boyce or Kenneth H. Castleberry, both connected with the law firm. No appearance. by Pickens as an attorney is noted in any part of the record. When the trial commenced, it was noted that appellees appeared by attorney Kenneth Castle-berry of Pickens, Pickens and Boyce. While appellant argues that Pickens gave instructions to his associate, Castleberry, while oil the witness stand, she bases this contention upon statements in the record that Pickens offered suggestions to Castleberry as to methods of preserving the record. We deem this to be too insignificant to constitute an actual participation in the trial of the case.

Appellant relies upon Canons 6 and 19 of the Canons of Ethics promulgated by the American Bar Association and adopted by this court and upon our holding in Rushton v. First National Bank, 244 Ark. 503, 426 S.W. 2d 378. We do not find reversible error on this point.

At the outset, it should be noted that the trial of this case was had on January 16, 1968, some ten weeks prior to our decision in the Rushton case. It was also about thirteen weeks prior to the delivery of our opinion in Old American Life Insurance Co. v. Taylor, 244 Ark. 709, 427 S.W. 2d 23, wherein we reiterated the admonition that neither the partner nor other members of the firm should participate in the trial of the case when one of them was a witness therein. There had been a widely held opinion that the requirements of Canon 19 were met when the testifying partner left the trial of the case to other members of his firm. See Formal Opinion 220 reproduced as an Addendum to the Rushton opinion at page 517.

Canon 19 provides as follows:

“ ‘When a lawyer is a witness for his client, except as to merely formal matters, such as the attestation or custody of an instrument and the like, he should leave the trial of the case to other counsel. Except when essential to the ends of justice, a lawyer should avoid testifying in court in behalf of his client.’ ”

The RusMon case was the first ease in this state in which reversible error was based upon a violation of the Oaiious of Ethics. Prior to that decision, it had never been held in Arkansas that the testimony of a lawyer was incompetent or inadmissible merely because he or a member of his firm participated in the trial. See Hutchinson v. Phillips, 11 Ark. 270; Milan v. State, 24 Ark. 346; 97 C.J.S. Witnesses § 71, p. 456 et seq.; 58 Am. Jur. 110, Witnesses, 152, 153. Our reversal in the Rushlon case was not based solely upon a violation of Canon 19. The primary basis of the reversal of the case was the abuse of discretion by the trial court in permitting an attorney for one of the parties to testify even though lie had remained in the courtroom during the entire proceedings prior to his being called as a witness, in spite of the fact that, the witnesses had been excluded from the courtroom under Ark. Stat. Ann. § 28-702 (Repl. 1962) at the request of the opposing counsel.

When Pickens was called as a witness in this case, appellant promptly objected. The objection was that bis testimony would be in violation of Canon 19 and, because he had represented the appellant in two other “items” of litigation, in violation of canon 6. The chancellor ruled that a blanket objection was not appropriate and overruled the objection. Although a substantial part of the testimony of Pickens was directed to matters pertaining to the attestation, custody and delivery of certain instruments, no further objection to any of his testimony was made by appellant until the conclusion of his testimony. After extensive cross-examination about the matters testified by him on direct examination, appellant’s attorney made the following motion:

“If the Court please, the plaintiff renews her motion to strike the testimony because the witness obviously served as legal adviser to the plaintiff. Any information he has is privileged. ’ ’

Although privileged communications cannot be disclosed through the testimony of an attorney, the failure of the beneficiary of the privilege to object to the admissibility of the questioned testimony renders it competent. Maloney v. Maryland, Casualty Co., 113 Ark. 174, 167 S.W. 845. A motion to strike all of a witness’ testimony is properly denied where any of the testimony is admissible. Young v. Arkansas State Highway Commission, 242 Ark. 812, 415 S.W. 2d 575. The testimony of Pickens as to the attestation, custody and delivery of the bonds, the savings and loan certificate and the receipt of appellant was admissible under any view. ,Even if some part of the testimony of Pickens which appellant contends was in violation of the attorney-client privilege was inadmissible, the denial of the motion to strike all his testimony was proper. Furthermore, a motion to exclude testimony comes too late when it is made after cross-examination of the witness by the moving party without objection having been made when the particular testimony was offered. Ctherwise, one could speculate on eliciting favorable answers on cross-examination and then have the testimony excluded if they turned out to be unsatisfactory. Poinsett Lumber & Mfg. Co. v. Trawler, 138 Ark. 328, 175 S.W. 522. It should be noted that the motion to strike was in no way related to Canon 19.

The court also properly overruled the blanket objection made by appellant before Pickens ever was asked a question. As above pointed out, the major portion of his testimon3' was admissible and he was a competent witness. Until the exact nature of the testimony to be elicited from Pickens could be ascertained, the court could not possibly know whether all or any part of it was inadmissible or, as a matter of fact, whether all or any part of it was actually in violation of either of the canons.

AYc have not yet held that testimony by an attorney in violation of Canon 19 is, standing alone, a basis for holding the testimony inadmissible. Yet, we are not in any manner diluting the effect of the decision in the Rushton case or the caveat in the Taylor case. We did not, in either of these cases, and we do not now, hold that an attorney is incompetent as witness or his testimony inadmissible only because of a violation of Canon 19, although disciplinary procedures might be appropriate. Any doubts about the application of these canons should be resolved by a declination of employment by any member of a law firm when a partner or associate may become a witness or by withdrawal of the firm from the representation when it becomes apparent that the testimony of a member or associate on behalf of a client will become necessary. We recognize, however, that there will be cases in which the necessity for a lawyer testifying cannot- be anticipated until a stage of the trial at which his withdrawal, or that of his firm, would be impossible without serious injustice to his client. In such a ease withdrawal should not be expected, but it should be clear that the necessity for the lawyer’s testimony could not have been anticipated.

II.

Appellant relied entirely upon her own testimony to establish her contention that she was defrauded by her father. Even if we exclude the testimony of the attorney in the case and ignore contradictions, vacillations and equivocations in appellant’s testimony, so that it is given the strongest probative force, we cannot say that the finding of the chancellor was against the preponderance of the evidence.

Appellant, now 26 years of age, had lived in Newport in her father’s home all her life until her maturity. Ilex- xuothex' died when appellant was boxur. She and her father were living’ at a motel owned by him and called Cherokee Courts when she became 18. This motel had 12 units, one of which was used for an office and three for home of the father and daughter. She stated that her father had a drinking habit and would become cruel when drinking. Because of this, she said that she was afraid of him.

According to her, she went to Memphis just a few days after she was 18. Her father did not see her for about three weeks. She claimed that she then returned to Newport because her father wanted to talk to her about the “probate business” and about “getting the bond deal settled and coming home.” She talked with her father and returned to Memphis for another two weeks, after which she returned to Newport because her father called and said he wanted to talk to her. She said that, on the occasion of the second return to Newport, she talked with Mr. Pickens about the bonds at his office and asked him when everything would be settled. She only stayed one day, after which she returned to Memphis. She was in Newport, in October, at her father’s request. On this occasion she stated that her father loaned her around $3,000, partly in cash and the balance in checks her father said she could write. She also stated that she was in Newport in November, 1959. Sometime during that month, she married a man named Higginbotham, although her father did not approve.

She denied having signed her name to request payment of the United States Savings Bonds or knowing the pex'son whose name is signed as a witness to her signature. She denied getting any of the proceeds of these bonds. She denied any knowledge of a bank account in the .First National Bank of Newport opened about the time of the closing of the guardianship and carried in the name of Carolyn Baleh Higginbotham, with the name Higginbotham having been added in pencil and with her correct addresses shown, on the ledger sheet. She did admit that her father told her that he had opened a bank account for her in the First National Bank but that- he did not tell her how to write checks. She signed checks using the name “Carolyn Baleh Higginbotham,” the exact designation of the account on the bank’s books. She claimed to have been unaware that any of the proceeds of five savings bonds went into that account but admits having written checks on the account for more iban $3,000 over a period of less than three months. She admitted that she used the money for her own purposes but claims that it was the money loaned her by her •father. The bank records show that this bank account was opened by the transfer of $530.08 on October 5 from the guardian’s account. Other items drawn on the latter account closed it on October 12. These items were court costs. The bank’s records show the deposit of $2,650.04 to her account on November 5 as the proceeds of the bonds. The date of redemption shown on the bonds is November 4. Mrs. Montgomery testified that she opened no account in that bank.

Appellant also denied having received the proceeds of the savings and loan certificate. She denied the endorsement of her name thereon. She admitted having gone to the Newport Federal Savings and Loan Association in 1960 and having talked to one Don Smith and a Mr. "White while there. She stated that she was asking Don Smith about papers she had signed when they showed her a bond with her father’s name on it and opened up the books. She denied ever having seen the certificates issued in her name in lieu of the certificate held by the guardian. Mrs. Montgomery left Higginbotham in November of 1960 and came back to Newport to live with her father. She had bought a Chrysler Imperial, for which she paid cash in November 1959, wrecked it in December 1959, then bought a ’57 Buick traded it in on a ’57 Pontiac, paying for both, and bouaht a 1956 Ford or Chevrolet on November 16, 1960. She said that she used her own money in these purchases, except. for one occasion when the money was furnished by her father-in-law.

8he was not divorced from Higginbotham until July 1962. She lived with her father most of the intervening time. Mrs. Montgomery admitted that she wrote the Veterans’ Administration asking an investigation about the proceeds of the estate several years before her father’s death. Although she stated in a letter written to the same agency after her father’s death that she had dropped the matter on the advice of her father’s attorney, she testified that she dropped the claim because she was told to do so by her father. She sa3^s that she thought that her father would give her the money. She offered no other excuse for her clehiy in asserting the fraud she now claims.

It is significant that on January 26, 1960, Mr. Balch executed a deed to the Cherokee Courts to appellant. On the same date, appellant admits having executed a mortgage on the property for $12,000. The mortgage contained a recitation that the debt was a part of the purchase money for the property. Both instruments were acknowledged before Donald E. Smith. The records of the Newport Federal Savings and Loan Association showed that Certificate No. 476 was issued to Balch as guardian of his daughter on November 28, 1951. The ledger sheet on that certificate showed that it was surrendered on November 1, 1959. These records further reflected that Certificate No. 1543 for the sum of $10,-000 was issued to Florence Carolyn Balch on November 1, 1959, and canceled on January 26,1960. On the same date Certificate No. 1622 was issued to L. Gr. Balch and canceled on July 1, 1960. On April 5, 1960, appellant deeded the Cherokee Courts property to E. L. and Maurice McCarty. The deed stated the assumption of the mortgage to L. O. Balch for $12,000 by the McOartys. On the same date, the McCartys conveyed certain property’' in Mississippi County, Arkansas, to appellant. This transaction was pursuant to a contract of March 5, 1960, between appellant and E. L. McCarty. This agreement provided for the conveyance of a theater, cafe and apartment building in Mississippi County to appellant and the payment by McCarty of a total of $11,000, of which $12,000 was to be by assumption of the Balch mortgage on the Cherokee Courts. The consideration for this agreement by McCarty was the conveyance of the Cherokee Courts property to McCarty.

Appellant’s explanation of these transactions is that her father asked her and Higginbotham to take over the Cherokee Courts and operate them for him. She stated that he told her he would forgive their payment of the loan if she Avould do him this favor. She admitted having executed the instruments in January of 1960 before Don Smith at the Cherokee Courts, but said that she was ill, had been taking shots for pain, and had been asleep when Mr. Smith brought the papers to the Cherokee Courts. She stated that no one explained the papers to her and that she thought that they were simply for the purpose of her running the courts while her father was gone to aid her brother in a business in St. Louis. Although the bank account for this business was carried in the name of Cherokee Courts and checks drawn by appellant and her husband, her explanation was that her father told her to deposit money in the bank, draw on it for bills and for her living and to send him money when he called. She claimed that she did send him money in bills or by money order. She testified that, after payment of costs, her living expenses, and sending money to her father, there was no money left. She also claimed that the sale of the courts to McCarty and the purchase of the cafe and other properties in Mississippi County were made by her father. She admitted having called on McCarty, but said that she quoted no price or terms to him and told him that her father would contact him. Later, she said that her father called and told her to execute the papers for the transaction. Her father then asked her if she would run the cafe, as she had the motel, according to her version. Later she went to Mississippi with her husband, where they bought some real property. She said that she paid somewhere between one and two thousand dollars for this real estate, by use of her husband’s military allotment. She admitted on cross-examination that she received a cheek for $2,000 from McCarty for the cash payment in the transaction, but on redirect examination her memory of this payment was faulty. She said that she did go to Mississippi County and operate the cafe business but that her father sold it.

Donald E. Smith testified that he went to the motel on January 26, 1960. He said that Mr. Balch gave him the deed, mortgage and certificate of deposit- and that he presented them to appellant. According to him, he handed her the savings and loan certificate and told her she was to endorse it and he was to witness it. The deed and mortgage had been prepared by Ben PI. White, an officer of the savings and loan association.

It is obvious that all of the facts were well known to her o]' could have been ascertained many years before her father’s death. Long ago, this court held in Walker v. Norton, 199 Ark. 593, 135 S.W. 2d 315, that an accounting by a personal representative would not be ordered where the complainant was guilty of laches, especially where the difficulty of doing entire justice arises through the death of principal participants or of witnesses or lapse of time. Clearly this is a ease which calls for the invocation of this rule. Certainly this appellant was mature enough and far enough removed from the influences of her father during the six-year period that he lived after the closing of the guardianship to have asserted the fraud she now claims. During this period of time she had been married three times and on at least one occasion lived with her husband’s parents. It seems obvious to us that this action was motivated because her father was silenced by death. Under these circumstances we find that she was not entitled to any equitable relief. See George v. Serrett, 207 Ark. 568, 182 S.W. 2d 198. To grant her relief would require that Ave disregard tlie solemn orders of the probate court and every Avritten record involving transactions between appellant and her father.

It would unduly extend this opinion to outline evidence not hereinabove mentioned. It is sufficient to say, however, that the preponderance of the evidence is against a finding of fraud in this case, even if we should disregard the defense of laches.

The decree is affirmed.

      These were divorce suits by appellant against her first two husbands.

      Insofar as pertinent, this canon reads: “The obligation to represent the client with undivided fidelity and not to divulge his secrets or confidences forbids also the subsequent acceptance of retainers or employment from others in matters adversely affecting any interest of the client with respect to which confidence has been reposed.”