author: Paul Ward, Associate Justice. Jim Johnson, Associate Justice,

text:
    Downs v. State.
    4954
    330 S. W. 2d 281
    Opinion delivered December 21, 1959.
    [Rehearing denied January 18, 1960]

      Norris Webb, Penix & Penix, for appellant.

      Bruce Bennett, Atty. General by Bussell J. Wools, Asst. Atty. General, for appellee.
   Paul Ward, Associate Justice.

Appellant, Curtis Downs, being charged with the crime of robbery, was tried, convicted, and sentenced by the trial court to 18 years in the penitentiary. Upon appeal appellant does not seriously challenge the sufficiency of the evidence to support the conviction.

There is substantial evidence in the record to show that appellant entered the Farmers’ State Bank of Jonesboro at Lake City on September 5, 1958, with a gun; that he forced one of the bank employees to place $14,-841.00 in bills belonging to the bank in his brief case; that he left the bank with the money in his car; that he was followed and later apprehended; that he was thereafter identified as the person who robbed the bank; that the amount and description of money mentioned above was found in a brief case in the car which he had been driving.

The able attorneys appointed by the trial court to represent appellant have set out in their brief several assignments of error on which they rely for a reversal. An examination of the motion for a new trial reveals that all assignments of error contained therein are covered by the Points set out in appellant’s brief. We proceed now to a consideration of those points.

One. Responsive to appellant’s plea of insanity, the trial court gave its Instruction No. 8 which reads ■as follows: “The defense of insanity cannot avail in this case unless it appears from a preponderance of the evidence, first, that at the time of the robbery the defendant was under such a defect of reason from disease of the mind as not to know the nature and quality of the act he was doing; or, second, if he knew it, that he did not know that what he was doing was wrong; or, third, if he knew the nature and quality of the act, and knew that it was wrong, then he was under such duress of mental disease as to he incapable of choosing between right and wrong as to the act done, and unable, because of the disease, to resist the doing of the wrong act which was the result solely of his mental disease”. It is appellant’s contention that this court ‘ ‘ should adopt a more realistic test for determining criminal insanity” and, in this connection, it was also contended that the trial court erred in refusing to give appellant’s Requested Instruction No. 1. This Requested Instruction reads as follows: “You are instructed that an accused is not criminally responsible if his unlawful act was the product of mental disease or mental defect. Therefore, if you find from a preponderance of the evidence that even though the defendant, Curtis Downs, committed the acts of which he stands accused, if such acts were the product of, or were caused by, a mental disease or a mental defect of Curtis Downs, then you will find the defendant not guilty”.

We have carefully considered several references which appellant makes to certain psychiatric authorities and to what they term the New Hampshire rule promulgated in the case of Durham v. United States, 214 P. 2d 862. Without attempting to pass on the merits of these citations and authorities we feel inclined and bound to follow the rule heretofore announced by our own Court. The instruction given by the trial court in this case, above copied, is set out almost verbatim in the case of Bell v. State, 120 Ark. 530, 180 S. W. 186, at Page 533 of the Arkansas Report. Immediately following 'the above mentioned instruction the Court, in the Bell case, stated: “The first and second of the above tests were approved by this court in Casat v. State, supra, (40 Ark. 511) and Williams v. State, supra, (50 Ark. 511, 9 S. W. 5) and the last test was approved in Green v. State, 64 Ark. 523-534 (43 S. W. 973), Williams v. State, supra, Metropolitan Life Insurance Co. v. Shane, 98 Ark. 132 (135 S. W. 836). These tests are in accord with the great weight of modern authority”. We do not find that the above decision has been reversed or modified.

Two. Appellant says: ‘ ‘ The jury should have been instructed that if they acquitted the defendant on the grounds of insanity to so state in their verdict”, calling our attention to Ark. Stats., Section 43-2135. This section reads: “If the defense be the insanity of the defendant, the jury must be instructed, if they acquit him on that ground to state the fact in their verdict”. No such instruction was given by the trial court in this case. If it be conceded that it was error for the trial court to fail to give such instruction it appears to us that it was a harmless error since the jury did not acquit ap-f pellant. Moreover, we find that no proper objection and exception was saved. Such being the case there is nothing for this court to review on appeal on this particular point. See: Hicks v. State, 225 Ark. 916, 287 S. W. 2d 12; Ford v. State, 222 Ark. 16, 257 S. W. 2d 30; and Napier v. State, 220 Ark. 208, 247 S. W. 2d 203.

Three. Dr. E. I. Shaw, a psychiatric physician on the staff of the State Hospital at Little Rock, was a witness for the State and gave testimony relative to appellant’s sanity as determined in the Hospital staff meetings. Upon being asked how the examination was made Dr. Shaw gave this answer: “We proceed with interviews with the patient and then you order any ancillary support you need, such as laboratory, X-rays e.e.g. ’s, psychological and neurological examinations, and then you compile all your data, and then you present your case to the staff”.

“Q. Does the whole staff vote on them and render an opinion?
Mr. Penix: I object.
A. Yes, sir.
Mr. Penix: I want to dictate my objection. ‘It is a basic precept of American jurisprudence a defendant lias a right to confront any witness testifying against him. It is part of the Constitution of this State. It is the worst, rankest kind of hearsay’.
Court: He may testify as to the method of procedure. As to what any other particular member of the staff did, the objection is sustained”.

Later on Re-Direct Examination of Dr. Shaw the following occurred:

“Q. Then the defendant Downs was actually present at the staff meeting?
A. Yes, sir.
Q. At that staff meeting, how many doctors were present ?
Mr. Penix: I object to that. The Constitution prohibits that.
Court: Overruled and exception noted to that particular question.
Q. How many doctors were present?
A. 14.
Q. Did all the doctors there have an opportunity to ask questions and interview this defendant Downs in the presence of all of the 14 doctors?
A. Yes, sir.
Mr. Penix: I object again to this.
Court: Overruled.
Mr. Penix: Exception.
Q. It was your separate diagnosis and the joint diagnosis he was without psychosis?
A. Yes, sir.
Q. If he had needed treatment, you would have asked for a 241 to have him committed, wouldn’t you?
A. Yes, sir.
Mr. Penix: I object to leading and asking wbat the other doctors found, who are not present for cross-examination.
Court: Overruled.
Mr. Penix: Exception.”

The essence of appellant’s contention on this point appears to be that it was a flagrant violation of the hearsay rule and also a denial of his right to be “confronted with the witness against him” guaranteed under Article 2, Section 10 of the Arkansas Constitution and the U. S. Constitution, Amendment 6, to allow Dr. Shaw to testify with reference to the report compiled by himself and the other members of the Hospital staff. This point was discussed at length and decided against appellant’s contention in the case of Nail v. State, decided by this Court November 2, 1959, 231 Ark. 70, 328 S. W. 2d 836. See also: Gerlach v. State, 217 Ark. 102, 229 S. W. 2d 37 and Leggett v. State, decided March 31, 1958, 228 Ark. 977, 311 S. W. 2d 521.

Article 2, Section 10, of our Constitution says that the accused shall enjoy the right to be confronted with the witnesses against him. We explained at length in the Nail case, supra, how and why that right is not impaired by Initiated Act 3 of 1936, Section 12, which allows a hospital report or staff report to be introduced in a sanity hearing, into evidence by the doctor who prepared said report. Since said Section 12 deals with such an important constitutional guarantee of a personal nature everyone, particularly this Court, should be on guard to see that this guarantee is protected. Likewise the rule against hearsay evidence is vitally important and should also be protected against inroads by piecemeal. The question can arise then, as it does in this case, as to what safeguards and limitations this Court should place around the introduction of a report which in fact reflects the view and findings of several people. As a general rule it appears fundamental that the witness by whom the report is introduced into evidence should be permitted to testify only to matters within his own knowledge and not to what some member of the staff reported to him concerning the defendant’s mental status.- On the other hand, we are unable to see how testimony regarding the composition of the hospital board or the procedural methods of the staff, if such testimony is within the personal knowledge of the witness, violates either Article 2, Section 10 of the Constitution or the hearsay rule. This character of testimony is not “against” an accused. This was apparently the view expressed by the trial court and we think it was correct. Tested by this view we find no reversible error shown by the record set out above. If, as appellant contends here, the State makes improper references to such questioned testimony in its argument to the jury, that raises an entirely different matter which is within the control of the trial judge.

. Four. Dr. Shaw, in response to a question, testified that appellant could distinguish between right and wrong. At another time the doctor stated that appellant was without psychosis and the court asked him if, in making his diagnosis, he was following the legal definition of insanity or insanity as defined by the Supreme Court of Arkansas. When the doctor answered in the affirmative, appellant objected on the ground that the doctor was being allowed to draw legal conclusions. Regardless of whether or not it was improper for the court to allow him to make the answer he did, no question is presented to this Court for our determination because the record fails to show that appellant obtained any ruling of the court and also failed to save any exceptions.

Five. It is here contended by the appellant that it was error for the trial court to permit the Prosecuting Attorney to make a final argument after the defense had waived its argument. The record shows that after the Prosecuting Attorney had finished his first argument the attorney for appellant stated that he waived any argument. After the court had indicated that it would permit the State to make another argument anyway, appellant objected and asked to be heard in Chambers. After the conference appellant, without further objection, proceeded to make an argument before the jury. We have no record of what took place at the conference between the court and the attorneys and so must presume that appellant waived any objections which he first entertained to the procedure followed.

Six. It is further insisted by appellant that the court commited reversible error by making certain improper remarks and indulging in certain improper procedure in that it stated that the “irresistible impulse” rule was not applicable in Arkansas, in permitting the Prosecuting Attorney to ask numerous questions designed to show that appellant had a previous criminal record, and in interrupting his attorney while cross-examining Dr. Shaw. We have carefully examined these several contentions and find that they are too general and too indefinite to form the basis for finding reversible error. The record moreover fails to reveal proper objections and exceptions.

Seven. Appellant’s final assignment of error is stated as follows: “The court erred in inviting the jury to let the court fix the punishment even before there was an indication the jury might disagree”. The record, at Page 11, reveals that the court handed the jury three forms of verdict. One of these forms, which is the basis of appellant’s objection here, reads as follows: “We, the jury, find the defendant, Curtis John Downs, guilty of the crime of robbery but are unable to agree on the punishment and leave the punishment to be fixed by the court”. One of the verdict forms allowed the jury to find the defendant guilty and fix his punishment at ............ years in the penitentiary. The other form allowed the jury to find the defendant not guilty. The jury agreed to the form of verdict copied above. Arkansas Statutes Section 43-2306 reads as follows : “When a jury find a verdict of guilty, and fail to agree on the punishment to be inflicted or do not declare such punishment in their verdict, or if they assess a punishment not authorized by law, and in all cases of a judgment on confession, the court shall assess and declare the punishment and render judgment accordingly”. It is appellant’s position that giving the form of verdict copied above amounted to an invitation to the jury to leave the amount of punishment to the court, thereby committing reversible error.

We fail to see how the statute has been violated in this case under the above facts. It appears, moreover, from our decision that the trial court in this instance followed not only the approved procedure but the only safe procedure. See: Underwood v. State, 205 Ark. 864 (at Page 874), 171 S. W. 2d 304, and Knighten v. State, 210 Ark. 248 (at Page 250), 195 S. W. 2d 47.

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

Johnson and Robinson, JJ., dissent.

Jim Johnson, Associate Justice,

dissenting. I dissent because the accused was denied his constitutional right to be confronted by the witnesses against him; in this case the doctors from the State Hospital.

This is the third of three decisions during the past few months holding that under Article 2, Section 10, of the Arkansas Constitution, it is not necessary that all the doctors who participated in the examination of the defendant be present at the trial for cross examination. The other two decisions are Leggett v. State, 228 Ark. 977, 311 S. W. 2d 521; and Nail v. State, 231 Ark. 70, 328 S. W. 2d 836.

Prior to these cases this Court had consistently held this lack of confrontation to be reversible error. Some of ■the cases holding it to be error are Smith v. State, 200 Ark. 1152, 143 S. W. 2d 190; Turner v. State, 224 Ark. 505, 275 S. W. 2d 24; and Jones v. State, 204 Ark. 61, 161 S. W. 2d 173.

When a court decides to reverse its position 180 degrees, there should be sufficient reason for doing so. The majority opinion states this point was fully discussed in the Nail case, supra, and apparently defers thereto. The reasoning in the majority opinion in the Nail case seems to be one of logic and expediency. Quoting from that opinion:

‘ ‘ In the first place, only the defendant and his counsel know what defense will he relied on, and it may not be known until the day of the trial whether the defendant will plead insanity as a defense. Accordingly, it would seem most illogical, or unreasonable, to require all the doctors, who participated in any phase of the examination, to leave their varied duties and travel to some point in the state, perhaps a long distance away, solely on the possi7 bility that the defendant might want to call them as witnesses.”

Ark. Stats. 1947, § 43-1301, provides that if the defense of insanity is raised at the time of the trial, the trial judge shall postpone all other proceedings in the cause and commit the defendant to the State Hospital for observation. Numerically subsequent sections of the annotated statutes provide other safeguards against the problem envisioned by the Nail opinion.

The majority do not consider Dr. Shaw as having testified to anything done by any other doctor but only as to his personal recollections and observations. Dr. Shaw testified, under questioning by the prosecuting attorney, as to the different tests used to aid in deciding the question of sanity of this defendant. The number given and the names of these tests are very impressive and not all of them were given by Dr. Shaw. Since these were administered by different doctors, the defense should have had an opportunity to cross examine them as to the methods used. Under the reasoning' used by the majority there is no error because Dr. Shaw told only what he observed, namely, that all the doctors concurred. Suppose I had been present at the consultation knowing nothing of these things. Could Dr. Shaw have not also said I concurred? That they all concurred and that this was within the personal knowledge of Dr. Shaw is not the point. The point is that they may not have known anything about what they were doing and this is the reason for the constitutional guarantee of confrontation which is actually only a guarantee that the witnesses will be subject to cross examination and under the influence of the sobering effect of the witness chair of the judiciary.

I agree that it is burdensome to require all the doctors participating in an examination to travel all over the state to testify.

I agree that it is inconvenient to the Court to have to stop the proceedings to send the defendant to the State Hospital if the defense pleads insanity on the day of the trial.

I agree that perhaps the moulders of our Constitution did not anticipate such a problem as the present one.

I also know that no law requires all the doctors at the State Hospital to participate in the examination and that they might, in order to circumvent my views, were they the majority views, just use one doctor on each examination and therefore not do as good a job as they are capable of doing.

All these things would be worthy of consideration if we were the legislative branch of government rather than the judicial.

Constituting, as we do, a Court of law, we should be bound by the express words of the constitution. Also, Ark. Stats. § 43-1302, shows that the legislature recognized the problem raised by the constitutional guarantee of confrontation :

‘ ‘... Witnesses employed by the State Hospital shall be so summoned to appear as to require as little loss of time as possible from their other duties.”

In this, and similar cases of late, the evidence has been heavy against the accused so one might ask what difference does it make whether we hold as we do, and one might answer as Justice Frank Smith did in Byler v. State, 210 Ark. 790, 197 S. W. 2d 748; “Twill be recorded for a precedent and many an error by the same example will rush into the State. It cannot be. ’ ’

We are now feeling the adverse effects of the Uniform Post Conviction Procedure Act which has since been repealed. We should therefore move with more measured tread, lest the pendulum swing too far in the other direction.

For this and the other reasons heretofore set ont, I respectfully dissent.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice. Carreton Harris, Chief Justice, Paul Ward, Associate Justice,

license: Public Domain

text:
    Mode v. State.
    4955
    330 S. W. 2d 88
    Opinion delivered December 21, 1959.

      Clay Brasil, Hardin, Barton, Hardin & Garner, for appellant.

      Bruce Bennett, Atty. General by Thorp Thomas, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Lee Mode, was charged with first degree murder. He appeals from a conviction of second degree murder.

One of the points argued by appellant is that the evidence is not sufficient to sustain the verdict. This point is not well taken. There was bad blood between Mode and the deceased, Russell. This grew out of Mode’s alleged attentions to Mrs. Russell. It appears that on another occasion Russell had taken a pistol away from Mode. The State introduced direct and circumstantial evidence to the effect that Mode stepped from a doorway and shot Russell down. On the other hand, the defense introduced evidence to the effect that Russell made an attack on Mode and in the ensuing struggle Russell was shot; that Mode was acting in self-defense. Mode was carrying a pistol and from the evidence it appears that he was carrying it for Bussell. Bussell was unarmed. The evidence is convincing that at the time of the killing Bussell was returning from the bank where he had made a deposit for Charlie Simon. There is nothing to indicate that he anticipated seeing Mode, but the very fact that Mode was carrying a pistol indicates that he did anticipate seeing Bussell. Mode contends that Bussell was shot while the two were closely locked in a struggle, but there were no powder burns on Bussell. He was shot in the left side of the head, and the doorway from which the State’s witness, Calvin Tyler, testified that Mode stepped when Bussell was shot, was to Bussell’s left.

Evidence of Mode’s infatuation for Mrs. Bussell; the fact that undoubtedly there was bad blood between the two men; that Mode was carrying a pistol and had been for some time; that Bussell took one away from him on another occasion; the direct evidence to the effect that Mode was in the doorway when Bussell was passing along the street; that Mode stepped from the doorway and the shooting followed; Bussell’s being unarmed — all taken together is amply sufficient to sustain the verdict.

The defendant pleaded not guilty, but during the trial the killing was not denied, defendant relying on the law of self-defense as justification for the slaying of Bussell. Ark. Stat. § 41-2231 provides: “Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise, to commit a known felony. ’ ’

The jury did not accept Mode’s version of the killing. Under the evidence in the case the jury could have convicted him of any degree of homicide. On the other hand, the jury could have acquitted him outright on their theory of self-defense. The court gave the jury 17 instructions on the law of homicide and self-defense. Instruction No. 9 is very long, taking up about three pages of the record. It is as follows:

“No. 9. The defendant, Lee Mode, contends that the killing of the deceased, D. L. Bussell, was justifiable.
“Justifiable homicide under the law is defined as follows: ‘Justifiable homicide is the killing of a human being in necessary self-defense, or in defense of habitation, person or property, against one who manifestly intends or endeavors by violence or surprise, to commit a known felony.’
“The defendant interposes a plea of self defense as a justification for the homicide charged.
“The Court has defined justifiable homicide and will now define the law of self defense and when it may be exercised.
“A bare fear of those offenses, to prevent which the homicide is alleged to have been committed, shall not be sufficient to justify the killing; it must appear that the circumstances were sufficient to excite the fears of a reasonable person and that the party killing really acted under their influence, and not in a spirit of revenge.
“In ordinary cases of one person killing another in self defense, it must appear that the danger was so urgent and pressing, that in order to save his own life, or to prevent his receiving great bodily injury, the killing of the other was necessary, and it must appear also, that the person killed was the assailant, or, that the slayer had really and in good faith endeavored to decline any further contest before the mortal blow or injury was given.
“In ordinary cases of one person killing another in self defense, it must appear that the danger was so urgent and pressing, that in order to prevent his receiving great bodily harm, the killing of the other was necessary. But, to whom must it appear that the danger was urgent and pressing? It must so appear to the defendant. To be justified however, in acting upon the facts and circumstances as they appeared to him, he must honestly believe without fault or carelessness on his part, that the danger was so urgent and pressing that it was necessary to kill the deceased in order to prevent his receiving some great bodily injury or harm.
“No one in resisting an assault made upon him in the course of a sudden brawl or quarrel, or upon a sudden encounter or in a combat, or from anger suddenly aroused at .the time it is made or occurs, is justified in taking the life of an alleged assailant, unless he was so endangered by such assault as to make it necessary to kill his assailant to save his own life, or to prevent great bodily injury, and he employed all the means in his power, consistent with his safety, to avoid the danger and avert the necessity of the killing. The danger must apparently be imminent, irremedial and actual and he must exhaust all the means within his power consistent with his safety to exhaust all the means within his power consistent with his safety to protect himself and the killing must be necessary to avoid the danger. If however, the assault was so fierce as to make it apparently as dangerous for him to retreat as to stand, it is not his duty to retreat but he may stand his ground and if necessary to save his own life or prevent his receiving some great bodily injury, slay his assailant.
“The defendant, Lee Mode interposes a plea of self defense. That the killing of D. L. Russell under the circumstances, constituted justifiable homicide. The burden of proof is upon the defendant, Mode, to prove such defense by a preponderance of the evidence.
“If the jury finds from a preponderance of the evidence, that at the time and place of the alleged difficulty resulting in the death of D. L. Russell, the deceased, withot legal justification, made an assault upon the person of the defendant, Lee Mode, under such circumstances indicating an intention upon the part of the deceased to inflict upon the person of defendant, Mode, some great bodily injury or death, and that the circumstances of such alleged assault, if any, were such as to excite the fears of a reasonably prudent person, and that the defendant, without fault or carelessness upon his part, in reaching a conclusion that danger was not only impending but so pressing and urgent as to render the killing of the deceased necessary, and having exhausted all the means within his power consistent with his safety, and without the use of more force than was necessary under the attending circumstances, as viewed by defendant, honestly and in good faith and not in a spirit of malice or revenge, and in his own necessary self defense, shot and killed the deceased, D. L. Russell, then, if the jury so finds, defendant Mode should be acquitted.”

The defendant objected generally and specifically.

By Instruction No. 9 the jury were told that the burden was on the defendant to prove justifiable homicide by a preponderance of the evidence. Not only did the instruction tell the jury that the burden was on the defendant to prove justifiable homicide by a preponderance of the evidence, but the instruction went further and appears to tell the jury that the burden is on the defendant (1) to prove by a preponderance of the evidence that Russell, the deceased, without legal justification, made an assault upon Mode; (2) to prove by a preponderance of the evidence that the circumstances of such alleged assault, if any, were such as to excite the fears of a reasonably prudent person; (3) to prove by a preponderance of the evidence that the defendant was without fault or carelessness on his part in reaching a conclusion that danger was not only impending but so pressing and urgent as to render the killing of the deceased necessary; (4) to prove by a preponderance of the evidence that defendant had exhausted all the means within his power consistent with .his safety; (5) to prove by a preponderance of the evidence that the defendant did not use more force than was necessary under the attending circumstances as viewed by the defendant; (6) to prove by a preponderance of the evidence that he, the defendant, acted honestly and in good faith and not in a spirit of malice or revenge; (7) to prove by a preponderance of the evidence that he acted in his own necessary self-defense.

It was error to instruct the jury that to justify the killing the burden was on defendant to prove self-defense or any element of self-defense by a preponderance of the evidence. Ark. Stat. § 41-2246 provides: “The killing being proved, the burden of proving circumstances of mitigation, that justify or excuse the homicide, shall devolve on the accused, unless by the proof on the párt of the prosecution it is sufficiently manifest, that the offense committed only amounted to manslaughter, or that the accused was justified or excused in committing the homicide.” Instruction No. 4 given by the court was in the words of the statute.

But the burden is not on the accused to prove justification by a preponderance of the evidence. It is sufficient if the evidence raises a reasonable doubt in the minds of the jurors as to whether the defendant was justified in committing the homicide. By Instruction No. 9 the jury were told in effect that notwithstanding they might have a reasonable doubt whether the defendant acted in necessary self-defense, they could not return a verdict of not guilty unless the defendant ’ had proved self-defense by a preponderance of the evidence. Otherwise, according to Instruction No. 9, the jury could not acquit, although they may have had a reasonable doubt of guilt,' if the defendant had not proved by a preponderance of the evidence that he acted in self-defense.

In a long line of cases this Court has held that it is error to instruct the jury in homicide eases where self-defense is asserted as justification for the killing, that the burden is on the defendant to prove the theory of self-defense by a preponderance of the evidence. Cogburn v. State, 76 Ark. 110, 88 S. W. 822, is directly in point. That case has been cited many times and the rule therein announced has never been impaired. There the court correctly instructed the jury in the first instance in the words of the statute, Ark. Stat. § 41-2231, above mentioned. But the prosecuting attorney incorrectly stated the law to the jury and then the court, over the defendant’s objections, affirmed what the prosecuting attorney had said. In the Cogburn case this Court said:

“In commenting on this instruction, the attorney for the State said:
“ ‘The court tells you, under this instruction, which I read to you, that, the killing being proved, the burden of proving circumstances of mitigation and justification devolves on the accused. Under this law, after we introduced Jim West, we could have rested our case, and the burden was upon them to establish justification; and if they fail to satisfy you by a preponderance of evidence that the killing was justifiable, then you should convict him.’ To which the defendant objected, and the court said: ‘While it is true that if, upon the whole case, they had a reasonable doubt, they must acquit, yet as to matters of mitigation he would be required to furnish a preponderance of the evidence.’ Now, the argument of the prosecuting attorney, as shown in the record, was not in accordance with the law; for, while it is true, as our statute declares, that when the killing is proved the burden of showing circumstances that mitigate or excuse the crime devolves upon the accused, where there is nothing in the evidence on the part of the State that tends to mitigate, excuse of justify the killing, still the burden on the whole case is on the state; and when evidence is introduced, either on the part of the State or the defendant, which tends to justify or excuse the act of the defendant, then if such evidence, in connection with the other evidence in the case, raises in the minds of the jury a reasonable doubt as to the guilt of the defendant, the jury must acquit. This is settled in this State by the statute which declares that ‘when there is a reasonable doubt of the defendant’s guilt upon the testimony in the whole case, he is entitled to an acquittal.’ Kirby’s Dig. § 2387 (Ark. Stat. § 43-2159).
“But if this statement of the prosecuting attorney were correct — that when the killing is proved the defendant must show by a preponderance of the evidence that the. killing was justifiable — the jury would have to reject Ms defense whenever it was not supported by a preponderance of the evidence. This would limit the doctrine of a reasonable doubt to the fact of the killing, and when that was established beyond a reasonable doubt it would put the burden on the defendant of establishing justification by a preponderance of the evidence, and if he failed to do so the jury would be required to convict Mm, even though the evidence adduced by him was sufficient to raise a reasonable doubt as to his guilt. But it cannot be said that the defendant must make out Ms defense by a preponderance of the evidence, and also that he is entitled to an acquittal if on the whole case the jury have a reasonable doubt of his guilt, for the two propositions are to some extent inconsistent. Testimony not sufficient to establish a fact by a preponderance of the testimony may be sufficient to raise a reasonable doubt as to the existence of the fact. To tell the jury that they must convict unless the fact of self-defense is established by a preponderance of the testimony, and also that they must acquit if they have a reasonable doubt as to whether the defendant acted in self-defense, is telling them to follow two rules which may lead to very different results.
“The statute, it will be noticed, says nothing about the preponderance of evidence. It says that, the killing being shown, the burden is on the defendant to show facts that justify or excuse his homicide. When, however, he introduces his proof, the question, says Mr. Wharton, arises: Ms it sufficient for Mm if he raises a reasonable doubt as to the defense he advances? Or must he establish this defense by a preponderance of proof, in order to entitle him to an acquittal?’ He answers the question by saying that when the defense traverses some essential ingredient of the indictment, such as malice or premeditation, it is sufficient if the proof raises a reasonable doubt. If the defendant undertakes to show that the act was done in necessary self-defense, this tends to rebut the allegation of malice; and if the jury have a reasonable doubt on that point, they should acquit, for that is a reasonable doubt as to whether an essential charge in the indictment is true or not. It is otherwise when the defense does not traverse any essential averment, of the indictment; for instance, when former conviction or acquittal of the same offense is set up. Wharton’s Crim. Neg. §§ 331-334.” .(Emphasis ours)

In Tignor v. State, 76 Ark. 489, 89 S. W. 96, it is said: “ . . . though the burden the proving acts of mitigation máy devolve on the accused, it is sufficient for him to show facts which raise in the minds of the jury a reasonable doubt as to his guilt.”

In Parsley v. State, 148 Ark. 518, 230 S. W. 587, the Court held that although only a general objection was made to a like instruction, no specific objection was required.

In Lovejoy v. State, 62 Ark. 478, 36 S. W. 575, it was held that preponderance of the evidence and reasonable doubt are not synonymous. The Court said: “ ‘Preponderance’ and ‘reasonable doubt’ are not synonymous terms. It is sufficient if the proof in the whole case raises a reasonable doubt as to whether the defendant took the cattle with a felonious intent. The state would not be justified in a conviction upon a preponderance of the evidence. Yet this instruction tells the jury, ‘that, if they believe from a preponderance of the evidence that the defendant took the cattle under the honest belief that he was the owner,’ they should acquit. The converse would be, ‘If you do not believe from a preponderance of the evidence’ that defendant took the cattle under the honest belief that he was the owner, etc., you should convict. The instruction makes the question of intent, which is the very essence of the crime charged, depend upon the preponderance of the evidence to establish it, whereas it must be established by the state beyond a reasonable doubt. It must not be forgotten that in criminal cases, under the plea of not guilty, every element in the crime is controverted, and the state must affirmatively prove guilt.

“ ‘It would,’ says Mr. Bishop, ‘be a wide departure from the humanity of the criminal law to compel a jury, by a technical rule, to convict one of whose guilt, upon the whole evidence, they had a reasonable doubt. And it would reverse the presumption of innocence to hold a defendant guilty unless, taking the burden on himself, he could affirmatively prove himself innocent. All evidence should be viewed in its entirety, not in detached parts. The whole of an alleged crime must be proved, just as the whole of it must have been committed. In reason, therefore, this whole and indivisible thing, the burden of proof, must be borne by the government throughout the trial.’ 1 Bish. Or. Pro., sec. 1051.”

Appellant argues several other points, all of which we have examined, but we find no error other than the giving of Instruction No. 9.

Reversed and remanded.

Harris, C. J., and Ward and Johnson, JJ., dissent.

Carreton Harris, Chief Justice,

dissenting. I agree that Instruction No. 9 was erroneous; however, I do not consider that the objection made was sufficient to properly challenge the instruction. In no part of his objection did appellant specifically object to the use of the word “preponderance”. His objection was “ * * * that the Court refused to add the provision to said Instruction, that if the evidence adduced by the defendant created a reasonable doubt in the mind of the jurors, then the defendant would be entitled to a reasonable doubt and should be acquitted, on the doctrine of reasonable doubt. ’ ’ The court then held that the general instructions on reasonable doubt “would not only reach self-defense and burden of proof, but also the evidence and all other issues in the case.” No further objection was made to the instruction. In several cases before this Court, an instruction copying our statute (Ark. Stats., § 41-2246) has been given. Such section reads as follows:

“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the accused, unless by proof on the part of the prosecution it is sufficiently manifest that the offense amounted only to manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’

In Tignor v. State, 76 Ark. 489, 89 S. W. 96, and Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, we held that this instruction is proper, if accompanied by an instruction that on the whole case the guilt of the defendant must be proved beyond a reasonable doubt. Except for the use of the word “preponderance”, Instruction No. 9 says no more than we have approved on numerous occasions. In the instant case, the court, in Instruction No. 4, quoted § 41-2246, and then added the following:

“Notwithstanding the provisions of the preceding •section of law as to burden of proof, the burden of proof in the whole case is upon the State of Arkansas, to prove from the evidence beyond a reasonable doubt the guilt of defendant, as charged and of any degree of crime or homicide included in the information.”

Likewise, in Instruction No. 8, the court concluded by .instructing the jury that appellant should be acquitted “if you find the defendant not guilty of any degree of murder •or homicide, or if you have a reasonable doubt of his guilt of any degree of homicide. * * * ”. It accordingly appears to me that the court, in giving these two instructions, which properly stated the law as to reasonable doubt, adequately took care of any possible objectionable features in the instruction except for the word “preponderance” — and the use of this word was not objected to by appellant. I therefore do not agree that this ease should be reversed because of the giving of Instruction No. 9, and I respectfully dissent to the ruling of the majority.

Paul Ward, Associate Justice,

dissenting. Although I .agree with the majority that portions of Instruction No. 9, as pointed out by the majority, were not proper, and .although I further agree with the majority that appellant’s ■objection was sufficiently specific to call the court’s attention to the erroneous part of the instruction, still it is my opinion that under the state of the record in this case the judgment of the trial court should be affirmed.

One. Other instructions of the court contained what appellant asked for. Instruction No. 2 told the jury that the defendant is entitled to the benefit of a reasonable doubt. In Instruction No. 8 the court told the jury that if they had any reasonable doubt as to the guilt of appellant of any degree of homicide or manslaughter they should acquit him. In the same instruction the court also told the jury that in determining the guilt or innocence of appellant they should consider all instructions given by the court.

We have uniformly held that instructions need not be duplicated.

Two. Moreover, and most important in my judgment, it appears from the record that appellant waived any possible error that the court may have committed in the giving of the questioned instruction. Wien the court had finished giving Instruction No. 9, which consisted of some five or six separate paragraphs, appellant made the specific objection that the court refused to add that if the evidence adduced by the defendant created a reasonable doubt in the minds of the jurors then the defendant should be acquitted. Following this the court made this comment: “The court holds that the general instruction on reasonable doubt would not only reach self-defense and burden of proof but also the evidence and all other issues in this case”. Apparently, appellant was satisfied with the court’s statement because no other instruction was asked for and no further objection was made. In my judgment the court’s statement removed all possibility of error. We assume that the statement of the court was made in the presence of the Jury and consequently amounted to a compliance with appellant’s request. If it was not made in the presence of the jury, then appellant could have requested that it be reduced to writing and presented to the jury, but no such request was made by appellant. This silence on the part of appellant amounted to trapping the trial court into error. We have repeatedly refused to allow this to be done.

The situation in this case can easily be distinguished from that in the case of Cogburn v. State, 76 Ark. 110, 88 S. W. 822, which is relied on so heavily by the majority. Li the Cogburn case it appears that the reversible error consisted of the court allowing the Prosecuting Attorney to argue to the jury the preponderance rule even though the jury had been instructed to the contrary. If such argument was made by the Prosecuting Attorney in the case under consideration the defense attorneys had a ready and adequate remedy. They could have pointed out the other instructions of the court referred to above and they could have, in particular, referred to the explanation of the court copied above in which the court stated that the "reasonable doubt” rule applied to self-defense.

       Emphasis supplied.


author: Jim Johnson, Associate Justice.

text:
    Collier v. Citizens Coach Co.
    5-1977
    330 S. W. 2d 74
    Opinion delivered December 21, 1959.

      J. Harrod Berry, for appellant.

      Bose, Meek, House, Barron & Nash, for appellee.
   Jim Johnson, Associate Justice.

This case involves-an action for personal injuries. Appellant, Ralph Collier, was a paid passenger on a bus owned and operated by appellee, Citizens Coach Company, in the City of Little Rock. Upon boarding the bus, appellant took his seat at an open window and rested his elbow on the window sill. The elbow protruded out of the bus window about 1% inches. As the bus started off, appellant’s elbow collided with a bus stop sign on a light pole on the street corner injuring appellant. Appellant alleged his, injuries resulted from negligence of the bus driver. Appellee denied negligence and alleged contributory negligence which was denied by appellant.

On the trial of the case the jury found on interrogatory that the bus driver was not guilty of any negligence proximately causing injury and judgment for appellee was entered thereon, from which comes this appeal.

For reversal, appellant urges five points. We will only discuss point two since it is highly unlikely that the other alleged errors will occur again on retrial.

Point two is as follows:

“The Trial Court prejudicially erred as follows:
“II. He gave, after jury began deliberation, an instruction defining proximate cause which was erroneous in that (1) it was not accurate; (2) it conflicted with instructions previously given and was confusing and misleading; (3) it was so worded as to excuse defendant bus company from high degree of care imposed-by law and previous instructions, while at same time tending to over-emphasize and enlarge upon care required of plaintiff in order to make the bus company’s negligence proximate cause, and in effect placed on plaintiff burden of proving himself free of contributory negligence, which vices were magnified by giving this instruction as an isolated instruction.”

The following is verbatim ad literatim from the record:

“After the jury had retired to the jury room for deliberation and had deliberated for some period of time, the foreman of the jury reported to the Court that the jury would like to have the term ‘proximate cause’ defined. The Court, without the hearing of the jury, asked counsel for the respective parties if it was all right for the Court to so define said term to the jury. After considerable discussion, counsel for the respective parties agreed upon a definition, except counsel for plaintiff objected to it as to form and content, as given, said definition being read to the jury by the Court,, as follows :
“ ‘ You are instructed that negligence is the proximate cause of an injury only when such injury is the natural and probable result of such negligence and when in the light of attending circumstances the injury ought to have been foreseen by a person of ordinary prudence (Emphasis ours).'
“Counsel for plaintiff then specifically objected to the giving of said definition of proximate cause, because it places undue emphasis on what would he expected of a person exercising ordinary care rather than also being adapted to the theory of the high degree of care of a cautious and prudent person being required and that this emphasis was more conspicuous by the fact that it was presented by itself.”

Three of the four interrogatories submitted to the jury required the jury to know the meaning of proximate cause. The fourth interrogatory had reference to the other interrogatories. The jury, after receiving the solitary instruction on “proximate cause”, again retired to the jury room for further deliberation. They returned a verdict for appellee by answering the following interrogatory No. 1 in the negative:

‘ ‘ Do you find from a preponderance of the evidence in the case that the bus driver was guilty of negligence in the operation of the bus and that such negligence, if any, contributed to proximately cause plaintiff’s injury.”

The question with which we are confronted is, was the Court’s instruction on “proximate cause”, which was given to the jury in this case, so erroneous as to constitute reversible error?

In attempting to define “proximate cause”, the Court inadvertently added to the definition a partial definition of negligence when it was said:

“. . . and when in the light of attending circumstances the injury ought to have been foreseen by a person of ordinary prudence . . .”

It should be remembered that while negligence must proximately cause a given result in order to justify a finding for the plaintiff on the allegations of the complaint; or a finding for the defendant on allegations of contributory negligence; negligence and proximate cause are two separate and independent things. Foreseeability is an element in the determination of whether a person is guilty of negligence and has nothing whatever to do with proximate cause.

Black’s Law Dictionary defines “proximate cause” as:

“That which, in a natural and continuous sequence, unbroken by any efficient intervening cause, produces the injury, and without which the result would not have occurred. ’ ’

Proximate cause is inherent in every personal injury without regard to whether the injury was caused by negligence, unavoidable accident or act of Grod. In other words, every end result has a proximate cause but every proximate cause is not induced by negligence. When a carpenter drives a nail into a board, the striking of the nail with the hammer is the proximate cause of the nail’s entering the board but no negligence is involved. In other words, proximate cause is a rule of physics and not a criterion of negligence. Therefore, as a definition of proximate cause, the Court’s instruction was inherently erroneous.

It is true that this court has said many times that even though an instruction is erroneous, if it affirmatively appears that it was not prejudicial there should not he a reversal. St. Louis & San Francisco Ry. Co. v. Crabtree, 69 Ark. 134, 62 S. W. 64. This general rule is stated in cases collected in West’s Arkansas Digest, Volume 2, “Appeal and Error”, Key 1031 (6). However, after a careful examination of the record, we cannot say here that it affirmatively appears that no prejudice results to appellant.

This instruction is also confusing and misleading because in its application to the case at bar, it conveys the impression that there could be no recovery unless a person of ordinary prudence could foresee, in the light of attending circumstances, that the injury complained of would result. This might have and probably did cause the jury to conclude that the bus driver was only bound to the exercise of ordinary care. This, of course, is incorrect since it was the bus driver’s duty to exercise the highest degree of care as the Court had properly stated in giving the following instruction:

“Citizens Coach Company, being a passenger bus company, owes to the passengers on its buses the duty to exercise for the safety of the passengers the highest degree of skill and care which may reasonably be expected of cautious and prudent persons employed in the operation of buses for the purpose of carrying passengers in view of the instrumentalities employed and the dangers naturally to be apprehended.”

A jury of laymen could hardly be expected to distinguish the difference between a person of ordinary prudence exercising the highest degree of care, and a person of highest prudence exercising ordinary care. It is confusing to say that the standard should be that of an ordinary prudent person unless it is further said that such ordinary prudent person was bound to exercise the highest degree of skill and care “in view of the instrumentalities employed and the dangers naturally to be apprehended.”

As previously indicated, the jury requested a definition of “proximate cause” and the court intermingled definitions of proximate cause and negligence in response to this request. This amounted to giving an instruction on negligence when the jury had not requested such definition.

For the reasons stated above, the cause is accordingly reversed and remanded for a new trial.

Mr. Justice J. Seaborn Holt dissents; Mr. Justice George Rose Smith not participating.


author: Carleton Harris, Chief Justice.

text:
    Skaggs v. Flurry.
    5-2024
    330 S. W. 2d 713
    Opinion delivered January 11, 1960.

      Virgil D. Willis, for appellant.

      Robert W. Cummins, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a judgment entered by the Boone County Circuit Court in favor of Ira F. Flurry, appellee, against the appellant, A. I. Skaggs. The judgment was in the amount of $300, representing a commission claimed by Flurry for the sale of certain property in Boone County, for which appellee had instituted his complaint. From such judgment comes this appeal. For reversal, appellant argues:

‘ ‘ That under the undisputed testimony appellee did not earn half the commission for the sale of the Brown property to.Nelson, because he did not procure a meeting of the minds of the seller and buyer that could be reduced to writing and did not procure a down payment,” and the trial court erred in overruling appellant’s motion for a directed verdict.

Flurry was employed as a real estate salesman by Skaggs, under an oral agreement, the provisions of which are in dispute. Appellee’s version of the agreement was that he would handle a transaction with a prospective customer until such time as the customer tendered the payment of earnest money; that thereafter, appellant would take over and complete ' the transaction. Appellant’s version of the contract was that Flurry and the customer were to reach an agreement on all terms of the sale, including the price to be paid, before he (Skaggs) would take over. Appellant testified that this was his understanding “so far as I was concerned. I don’t know how he understood.” It was agreed that compensation was to be one-half of five per cent of the selling price of the property. Actually, with this exception, neither party was too definite or emphatic in relating the terms of the contract.

The record reflects that Skaggs introduced Flurry to Herbert Nelson, and requested that Nelson be shown some property which was listed with Skaggs. Flurry took Nelson out to the property, known as the Brown farm, in February, 1957. The two looked at the barns, well, pump, springs, and other features of the property, and discussed price and terms, but no sale was made. Around the middle of July, Nelson returned and appellee again showed him the Brown property. On August 28th, Nelson wrote Skaggs from his home in Iowa, offering $12,000 for the place, and sending his check for $500 as earnest money. This offer was not accepted by the owner of the farm, and Skaggs notified Nelson of that fact. In September, Nelson returned to Harrison, and signed an agreement for the purchase of the farm with Skaggs. Appellee therefore contended that lie was entitled to his commission, while appellant, under his version of the agreement, contended that Flurry had not proceeded far enough with the transaction. In fact, Skaggs testified that Flurry was not employed by him “from about July on.” However, appellant admitted that Flurry’s license remained in the office, and the latter would come by occasionally. Flurry contended that he worked for Skaggs until the end of September, and testified that on the day the $500 check was received in the office, he (Flurry) asked Skaggs to let him take the purchase agreement to the property owner, Brown, get it signed, and place the papers in the mail. He testified Skaggs replied “* * * that he was overseeing some work over there and he said no need for both of us to drive over there, he said I am going right by his house, and he said one of us should be around in case some customers come in and he said if you will stay around I will get the thing signed.” Whether Flurry was still an employee of Skaggs, is not, in itself, determinative of the outcome of the litigation, though this being in dispute, was, of course, a jury question.

There were really only two issues to be resolved, which were properly presented to the jury by the court in its instructions. First, what were the terms of the oral contract between the parties, and second, did appellee’s action constitute performance on his part, and entitle him to a commission on the sale of the property. According to the undisputed evidence, there was no intervening act on the part of Skaggs between the time of the last showing of the property (in July) by Flurry, and the subsequent receipt of the check for $500. At any rate, there was sufficient evidence to support a verdict if the jury accepted appellee’s version of the terms of the agreement. Appellant treats the negotiations with Nelson as separate transactions, pointing out that the seller would not accept Nelson’s offer of $12,000, but we do not agree with this interpretation, for under appellee’s version, his duty under the contract was met when the cheek for earnest money was received. The jury so found.

Affirmed.

       Appellee joined in his complaint two causes of action, one for a commission amounting to $250, and the other, $375. Appellant admitted the $250 item, and tendered it below. The jury’s verdict was based on the commission sought for $375.

       The property sold for $15,000.


author: J. Seaborn Holt, Associate Justice.

text:
    Morrow v. McCaa Chevrolet Co.
    5-2026
    330 S. W. 2d 722
    Opinion delivered January 11, 1960.

      J. H. Spears, for appellant.

      Nance $ Nance; W. S. Hollis, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, R. H. Morrow, brought the present action against appellee, McCaa Chevrolet Company, to dissolve an alleged partnership with appellee and for an accounting. He alleged in his complaint that about “The first of July 1957 he entered into a partnership agreement with the defendant for the sale of used automobiles and trucks; * *, * ■; -that by the terms of-the'partnership, the defendant was to furnish the location for the operation of said used car lot and the capital; that the plaintiff was to devote his entire time to the operation of said business, and each was to share equally in the profits. * # * during- the first part of' November 1957 J. C. McCaa, Sr., President and principal stockholder of the defendant corporation, arbitrarily and without cause terminated the partnership and closed the. business. * * * that the defendant has failed and refused to account to the plaintiff for his part of the profits and assets of said partnership; * * * and that an accounting be made” and prayed that a master be appointed for this purpose.

Appellee answered denying that any partnership existed between it and Morrow but alleged that about the-1st of July 1957, appellee employed “R. H. Morrow, and agreed to pay him as wages, 50 per cent of the operating profit of the used car department of the McCaa Chevrolet Company.” Thereafter appellee filed an “Amended Answer And Counterclaim Of The Appellee” and appellant filed an “Answer To Amended Answer And Counterclaim”. On a trial the court found upon the conclusions of appellant’s testimony and proof “That no partnership existed between the plaintiff and cross-defendant, R H. Morrow, and the defendant and cross-complainant, McCaa Chevrolet Company, and that the complaint of the plaintiff be and the same is hereby dismissed and the defendant and cross-complainant, having admitted in open court that an employer and employee relationship existed between the parties, the court finds that an account should be stated between the parties on account of such relationship, and that a master should be appointed to state the account between the parties.” The court then proceeded to appoint a master. From this decree comes this appeal.

For reversal appellant relies upon the following points: (1) The evidence introduced was sufficient to establish a partnership, and the court erred in not so finding. (2) The court erred in dismissing appellant’s complaint on its own motion prior to conclusion of all the evidence and in refusing to hear testimony of additional witnesses. (3) The court erred in failing to grant plaintiff’s motion to inspect and examine the hooks and records of the appellee. (4) The court erred in dismissing appellant’s complaint. (5) The court erred in dismissing appellant’s amended answer and complaint.

After a careful review of the evidence, we have concluded that the decree should be affirmed.

Points (1) (2) and (4)

(We consider these together). We think appellant’s evidence conclusively shows that there was no partnership agreement entered into between him and appellee. He testified: ‘ ‘ Question. Otherwise, you had your own time in there and you were working for just half of the net profits of the operation here? Answer. I considered it that way. Just like I told you in the depositions, I considered myself like a sharecropper. Question. You just considered yourself as a sharecropper and not as a partner? Answer. That’s right. Question. Then the agreement that you entered into was that you would work there and operate it for fifty per cent of the net profits? Answer. That I would operate the lot for half of the profits. Question. That was the agreement that you entered into? Answer. Yes, sir. Question. Was there any time a statement made about a partnership or was it just fifty per cent of the net profits? Answer. I don’t understand the question — I would agree it’s a partnership, it’s got to be because I am working for half. Question. It’s got to be a partnership if you are working for half? Answer. Yes, sir. Question. There was no particular mention made of the partnership was there? Answer. I wouldn’t say there was or wasn’t.”

It appears that Morrow never claimed to be a co-owner of the business but that he only was to receive £¡0 percent of the profits for his services. In answer to a question concerning the operation of the business, he testified: “A. That I would run * * * it would be McCaa Used Cars and Mr. J. C. Jr., would be sole owner of the property and I would run it for half the profit . . .” We have many times held that the sharing of profits alone does not make one a partner. In Wilson v. Todhunter, 137 Ark. 80, 207 S. W. 221, this court said: “Mere participation in the profits and losses of a business alone, would not make the participant a partner. Whether, in fact, a partnership exists, depends upon the intention of the parties, to be discovered from the contract into which they enter, construed in the light of all the facts and circumstances that obtain.” In Haycock v. Williams, 54 Ark. 384, 16 S. W. 3, this court held that a sharecropper was not a partner. The record reflects that the trial court dismissed appellant’s complaint insofar as his claim of partnership was concerned after appellant’s counsel had stated to the court that appellant had no further evidence to present except corroborative testimony of two other witnesses. We find no error here. The record reflects the following: “The Court: Now, Mr. Spears, in your further witnesses I would like to know whether you are going to introduce some new evidence bearing on the formation of a partnership or is it going to be purely the nature of corroborating what Mr. Morrow says? Mr. Spears: It would be more or less the nature of corroborating his testimony. I have no new evidence. The Court: There will be nothing new that Mr. Morrow has not already testified to himself? Mr. Spears: That’s right.”

On this partnership issue, what we said in Kent v. State, 143 Ark. 439, 220 S. W. 814, is relevant here. We there said: “* * * if the contract was that Jones should furnish the capital and pay all the expenses and appellant was employed to work for Jones with the understanding that he was to receive as compensation for his services one-half the net profits, having no community interest, then appellant would be an employee for hire and not a partner. Rector v. Robins, 74 Ark. 437, 86 S. W. 667.

“It occurs to us that the undisputed testimony of Jones shows that the relationship between him and appellant with reference to the business and the funds derived therefrom was not that of partnership, but that appellant was an employee of Jones and was to receive compensation for his services out of the net profits of the business, provided there were any net profits. The court might have so told the jury as a matter of law. Such being the case, the court did not err to the prejudice of appellant in submitting to the jury the issue as to whether there was a partnership.”

(3)

The court did not err in denying appellant’s request to inspect and examine the books and records of appellee for the reason that before appellant would be entitled to such inspection, he must first show that a partnership existed. Since we are holding that appellant has failed to establish a partnership relationship, he was not entitled to inspect the books, Uniform Partnership Act (Sections 65-101 — 65-143).

(5)

Appellant says that the court erred in dismissing his answer to appellee’s Amended Answer And Cross-Complaint. We do not agree. The record reflects, as indicated above, that Morrow filed his complaint seeking dissolution of an alleged partnership between him and appellee company, and for an accounting. Appellee first filed an Answer and later an Amended Answer, along with a Counterclaim. Appellant then filed a Reply to appellee’s Counterclaim, in effect stating a new cause of action against appellee in which he prayed for $25,000.00 in damages for the wrongful dissolution of the alleged partnership. The appellee then filed its’ Motion To Strike from appellant’s Reply that part seeking damages. The court granted this Motion of Appellees and we think, correctly so. Sec. 27-1132 Ark. Stats., provides, in effect, that a reply shall set out allegations constituting a defense to a counter-claim or set-off filed by the defendant in his answer. This section provides: “Contents Of Reply. — When the answer contains new matter constituting a counterclaim or set-off, the plaintiff may reply to such new matter, denying each allegation controverted by him, or any knowledge or information thereof sufficient to form a belief, and may allege, in concise language, any new matter not inconsistent with the complaint, constituting a defense to the counterclaim or set-off.” Morrow’s claim for damages was not permitted by the above section and was properly stricken by the court. Appellant’s contention that this pleading should be construed as an amendment to his original complaint and permitted, cannot be sustained for the reason that the duty rested on him first to obtain the permission of the trial court to file such an amendment. Sec. 27-1158, Ark. Stats. 1947 Anno., provides: “Amendment Of Complaint — Time.— The Plaintiff may amend his complaint without leave at any time before an answer is filed, and without prejudice to the proceedings already had.” Here appellant made no attempt to amend his complaint until after appellee’s answer was filed.

Accordingly, the decree is affirmed.


author: Ed. F. McFaddin, Associate Justice.

text:
    Moseley v. Temple.
    5-2013
    330 S. W. 2d 719
    Opinion delivered January 11, 1960.

      Clint Huey, for appellant.

      Williamson, Williamson and Ball, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a workmen’s compensation case. Both the Trial Referee and the full Commission disallowed the claim of Mr. Moseley; the Circuit Court - affirmed the Commission; and this appeal resulted. The real issue is whether there is substantial evidence to support-the finding of the Commission; and we conclude that there is.

The appellee, J. L. Temple, owned and operated an automotive and supply business in Warren, Arkansas; and appellant, L. E. Moseley, was employed by Mr. Temple for several years. In the- late afternoon of August 26, 1958 a disagreement arose between Moseley and Temple regarding an automobile jack; and Moseley quit work. The next day Temple paid Moseley in full, plus two weeks’ vacation pay; and the employer-employee relationship was completely terminated. After two weeks, Moseley sought re-employment by Temple, but another man had already been employed. Later, Moseley applied to the Unemployment Compensation Agency for unemployment benefits, and represented himself as ready, willing, and able to work. Then, on October 7,1958, Mr. Moseley consulted Dr. Murl E. Crow, because of low back pains; and was found at that time to be suffered from a “possible ruptured disc of the lumbar spine”. On October 24, .1958, for the first time, Mr. Temple and his insurance carrier were notified that Moseley claimed to have suffered a back injury while working for Temple on August 26, 1958, and just a few minutes before termination of employment.

That Mr. Moseley was suffering from a back complaint on October 7, 1958 when he consulted Dr. Crow, was not denied; but Mr. Temple and his insurance carrier vigorously denied that any such injury occurred while Mr. Moseley was working for Mr. Temple. The Workmen’s Compensation Act requires that injuries, to be compensable, must arise “out of and in the course of employment (§ 81-1305 Ark. Stats.). Did Mr. Moseley’s injury that he had on October 7, 1958 arise “out of and in the course of employment” with Mr. Temple, which had terminated on August 26, 1958? That was the factual question presented to the Referee and the Commission.

To sustain his claim for compensation, Mr. Moseley testified that on August 26, 1958 there were two cylinder heads to he loaded on an automobile to be taken to Little Rock: “I put the first one in by myself but the other one was underneath the truck in behind an old engine. I finally got it out on the floor and picked it up out on my hands and arms, like that, and carried it about three or four steps and felt a sharp pain in my back, and I laid it down and asked Mr. Hoyle to come help me put it on the truck, and Mr. Hoyle came over there and he carried it on over there and put it on the truck, . . .” It was this “sharp pain in my back” which Mr. Moseley said was the injury that he sustained in the coursé of his employment; and appellant relies, inter alia, on Sparks Memorial Hospital v. Walton, 229 Ark. 1014, 320 S. W. 2d 102, as a case supporting his contention of liability.

There were a number of facts and circumstances that shed light on whether Mr. Moseley’s injury arose “out of and in the course of employment”. We mention a few:

1. Mr. Moseley admitted that he never said anything to any of his fellow workers or to Mr. Temple on August 26th when he claimed he suffered with the sharp pain in his back; and he admitted that it was not until October 24th that he ever notified Mr. Temple or the insurance carrier that any injury was claimed because of work.

2. Mr. Moseley admitted that he applied to Mr. Temple for re-employment and never mentioned any back injury; and that he also applied for unemployment compensation insurance and never mentioned any back injury.

3. Mr. Moseley admitted that he never consulted a doctor until October 7, 1958; and that for years he had occasionally had a sore back for two or three days and had never thought anything about it.

4. Fellow employees of Mr. Moseley gave a history of the loading of the cylinder head into the automobile without any suggestion of any injury on the part of Mr. Moseley.

5. Dr. Crow, who examined Mr. Moseley on October 7th, said that the back injury which Mr. Moseley had on that date could have happened from a variety of causes. Dr. Crow testified:

‘ ‘ Q. Dr. Crow, is it possible that Mr. Moseley could have received his ruptured disc or spinal trouble in some manner other than by lifting a cylinder head?
“A. Yes.
“Q. Are there half a dozen other ways that he could?
“A. You can do it any way; even raising a window can cause it.
“Q. What physical reaction takes place that causes a condition of this sort?
“A. What actually takes place?
“Q. Yes, twisting or bending of the back?
“A. Well, yes, twisting or lifting, or I have seen a man just jump up in the air about a foot off the ground and sustain a ruptured disc. Anything that puts a strain on you.”

Thus, from conflicting claims and circumstances, a conclusion had to be reached by the Commission. What we said in Ward v. Nolen, 229 Ark. 68, 313 S. W. 2d 240, is apropos here:

“In the matter of credibility the commission’s findings have the binding force of a jury’s verdict. When we lay aside Ward’s own version of how he received his injuries, all that remains is the fact that he complained of a catch in his back and that he is now disabled by a ruptured disc. This proof does not compel the conclusion that the claimant received an accidental injury in the course of his employment.”

In Wren v. D. F. Jones Const. Co., 210 Ark. 40, 194 S. W. 2d 896, we pointed out that the inferences to be drawn and the conclusion reached from the established facts were for the Commission, and we said:

“Under our Workmen’s Compensation Law the Commission acts as a trier of the facts — i.e., a jury — in drawing the inferences and reaching the conclusions from the facts. We have repeatedly held that the finding of the Commission is entitled to the same force and effect as a jury verdict.”

From a study of the entire record, we conclude that the Commission had ample evidence and inferences from which it could find that Mr. Moseley failed to prove that his back condition of October 7, 1958 arose “out of and in the course of employment” by Mr. Temple, which employment ceased on August 26, 1958.

Affirmed.


author: George Rosa Smith, J.

text:
    McGuire v. Wallis.
    5-2015
    330 S. W. 2d 714
    Opinion delivered January 11, 1960.

      G. M. Garden, for appellant.

      Maner & Stanley, Joe McCoy, for appellee.
   George Rosa Smith, J.

The land in controversy, a farm of about 186 acres lying in Hot Spring and Saline counties,- was owned by Louis Wallis at his death in 1937. Louis Wallis died intestate, survived by his widow, Martha Wallis, who died in 1955, and by eight grown children. In 1958 four of the children and the heirs of a fifth child brought this suit for partition of the property. The principal defendant, the appellee Clovis Wallis, who is a grandson of Louis Wallis, claims title by adverse possession. Clovis contends that his father, Allie Wallis, held the land adversely from 1937 until his death in 1945,. and that since then Clovis himself has been in adverse possession. The chancellor sustained the plea of adverse possession, and this appeal is from a decree quieting title in Clovis Wallis.

Our study of the record convinces us that the decree is against the weight of the evidence, that Clovis failed to establish his claim of title by adverse possession. It must be remembered at the outset that the possession of one tenant in common is presumed to be the possession of all and, further, that in view of the family relation stronger evidence of adverse possession is required in this case than in one where no such relation exists. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125; Baxter v. Young, 229 Ark. 1035, 320 S. W. 2d 640. Thus Clovis had a heavy burden of proof.

The testimony falls decidedly short of establishing hostile possession on the part of Allie Wallis. Soon after the death of Louis Wallis in 1937 Allie attempted to persuade his brothers and sisters to convey their interest to him in return for his promise to support their mother, Martha, for the rest of her life. Two of the brothers, Ezra and Clarence, accepted Allie’s proposal, and these two assert no claim to the property. But the clear weight of the evidence, if not the undisputed testimony, shows that the other children rejected Allie’s offer and refused to execute the deeds he tendered. In 1938 the widow, Martha, who was entitled to dower and homestead rights in the land, conveyed her interest to Allie; but this deed was not recorded until 1944, and we are convinced that none of the appellants knew about the conveyance until shortly before this suit was filed. (It is indicated that Martha may have transferred her interest in order to qualify for monthly payments from the state welfare department.)

In 1937, after the death of Louis Wallis, Allie moved into the house that was on the land and occupied it, or another that he built, until his death in 1945. His possession, however, was not exclusive, for soon after Louis’s death some of the children and neighbors had what they call a “working” and erected a house on the land for Louis’s widow. Martha occupied that house until about 1947, after which she lived with one or another of her children or grandchildren until her death in 1955.

It is clear enough that Allie could not have successfully asserted a claim of adverse possession. True, he was in charge of the farm, managing it for his own benefit, paying taxes, and paying the installments upon the mortgage debt; but these facts are insufficient to support a claim of adverse possession against his co-tenants. Smith v. Kappler, 220 Ark. 10, 245 S. W. 2d 809. Moreover, the joint occupancy by Martha Wallis would in itself have been fatal to Allie’s claim of exclusive hostile possession. Martha, by virtue of her homestead right and her unassigned dower, was entitled to be in possession; so the other children, knowing nothing of their mother’s unrecorded deed to Allie, had no reason to suppose that Allie’s dominion was other than permissive.

There remains to be considered Clovis’s occupancy from 1945 until suit was brought in 1958. Clovis was ten years old when his grandfather died in 1937. In 1944 Allie undertook to convey some 51 or more acres of the land to Clovis, but it is not shown that the other cotenants knew of this deed or that it was followed by any significant visible change in the possession of the property. Until Clovis’s grandmother left the lánd in about 1947 there is no basis for making any distinction between Clovis’s occupancy and that of his father, for both apparently shared the widow’s rightful possession.

After Martha’s departure Clovis seems to have been in exclusive possession, but in order for that possession to be adverse it was incumbent upon Clovis to bring home to his cotenants knowledge of his hostile claim, either directly or by acts so notorious and unequivocal that notice must be presumed. Smith v. Kampler, supra. Upon this point Clovis’s proof is fatally deficient. It is fair to say that his own testimony, when carefully read in its entirety, discloses that he never asserted a claim of exclusive ownership to a single one of his interested uncles, aunts, or cousins. His testimony implies that these relatives should have deduced from his occupancy that his position was hostile, but the law is otherwise.

Nor do we find in the record proof of any acts so notoriously and unequivocally hostile as to charge the appellants with knowledge of Clovis’s adverse claim. Counsel list an imposing array of facts that are said to satisfy the appellee’s burden of proof, but for the most part the various acts relied upon are merely subordinate aspects of conduct which, taken altogether, amounts simply to possession of the property. The most important acts going beyond normal occupancy were the construction of two barns, the drilling of a well, and'the putting in of a stock pond. We are not persuaded that these additions to the property would satisfy the requirement of notorious, unequivocal action; but in any event, just as in the Kappler case, it is not shown that these improvements were made more than •seven years before suit was filed. Hence, as we held in the earlier case, these improvements do not satisfy the claimant’s burden of proving adverse possession, though they may properly be taken into consideration in the division of the property.

Reversed. '


author: Paul Ward, Associate Justice.

text:
    Tarheel Drilling & Equipment Co. v. Valley Steel Products Co.
    5-2025
    330 S. W. 2d 717
    Opinion delivered January 11, 1960.
    [Rehearing denied February 8, 1960]
    • Gaughan & Laney, for appellant.

      Spencer <& Spencer, for appellee.
   Paul Ward, Associate Justice.

The question is: Does Arkansas Statutes, Section 51-701 which creates a materialmen’s lien on an oil and gas leasehold also create a lien on oil produced therefrom and delivered to a pipe line?

Briefly, the issue arose in this manner. Appellees, who had formerly obtained judgments against the owner of a certain oil and gas lease, brought action to impound funds in the hands of J. S. Brooks (a trustee of the owners) which funds were the proceeds of oil sold from a well on the leasehold and delivered to a pipe line. Appellant (Tarheel Drilling and Equipment Company, Incorporated) claimed a prior and superior right to the oil proceeds by virtue of a previously asserted lien against the leasehold owners under the statute above mentioned. Tbe parties hereto entered into the following stipulation: “It is stipulated by and between Tarheel Drilling and Equipment Company, defendant, and Valley Steel Products Company, and Lane-Wells Company, plaintiffs, that the only question involved as between them is entirely a question of law — that is: ‘Whether a Labor and Material Lien filed under Section 51-701 Ark. Stats. 1947, covers oil produced and delivered to a pipe line after the lien has attached against the leasehold interest’. If this question is answered in the affirmative then Tarheel Drilling and Equipment Company is entitled to the sum of $703.24 held by J. S. Brooks, but if answered in the negative then the plaintiffs, Valley Steel Products Company, and Lane-Wells Company are entitled to said sum of money”.

Upon a hearing the trial court found: “That a properly filed labor or material lien under Section 51-701 Arkansas Statutes 1947, does not extend to and cover the proceeds of oil runs from the oil and gas well and the leasehold estate covered by said lien”.

Said Section 51-701 reads substantially as follows: “Any person . . . who shall under contract . . . with the owner or lessee of any land, mine, or quarry . . . or' mineral leasehold interest in land . . . perform labor or furnish material . . . used in . . . drilling . . . operating . . . completing, maintaining or repairing any such oil or gas well . . . shall have a lien on the whole of such land or leasehold interest therein ... or lease for oil and gas purposes . . . and upon said oil well, gas well . . . mine or quarry, for which same (labor or materials) were furnished”,

We gather from the pleadings and the stipulations that Tarheel’s alleged lien is based upon the sale of equipment to the leaseholders in connection with operation developments of the lease. Although said Section 51-701 does not specifically give a lien on the oil which comes' from the well, appellants say' such is implied. They-also- call attention to the fact that the statute provides for a lien “on the whole of such land”, but a closer look reveals that such is the case only where the owner of the land produces the well which is, of course, not the case here. It is true that if the lien covered the land it would also cover the minerals under the land. We have examined the case of Moran v. Johnson, 91 Ohio App. 120, 107 N. E. 2d 401, relied on by appellants but do not find it persuasive here because the court did not attempt to distinguish between the oil and leasehold. Neither are we persuaded by the cases cited by appellants holding that an oil and gas lease conveys an interest in the land. The reason is that the statute does not create a lien (in this instance) on the land but creates a lien only on the leasehold. It is also argued by appellants that since oil becomes personal property when removed from the ground the lien would attach when that event happens, citing Reavis v. Barnes, 36 Ark. 575, and Bank of Commerce v. Tubbs, 156 Ark. 487, 247 S. W. 1079. The fallacy in that argument is that the statute does not create a lien on the land (in this instance), nor does it specifically create a lien on the oil produced therefrom.

Although the exact question here presented has never been settled in this State it has been settled contrary to appellants’ contentions in other jurisdictions which have statutes essentially like said Section 51-701.

One of the leading cases is Stanolind Crude Oil Purchasing Company v. Busey, 90 P. 2d 876, 185 Okla. 200, in which the court, among other things, said: “It has been held by our court that an oil and gas lease conveys no interest whatever in the land itself and no title to the oil in place within the leased premises; that such lease is but a grant to explore; a chattel real, and personalty. Our lien statute contains an itemization of specific property affected by the lien; if there had been a purpose that oil as and when produced should be included surely it would have been listed as one of the items . . . It is true that oil and gas is the basis of value of the items, ‘leasehold’, ‘lease for oil and gas purposes’ and ‘oil or gas wells’, but oil and gas as produced is not mentioned in the lien statute and it is not one of the functions of the court to create a lien”. The holding in the above cited cases was followed and applied in the case of Young v. Mayfield, 316 P. 2d 162.

To the same effect as above is the case of Black v. Giarth, 88 Kan. 338, 128 Pac. 183. In this case the court in construing a statute like our own, among other things, stated: “Under this statute, a lien may be acquired upon (1) the leasehold or lease, (2) the buildings and appurtenances, (3) the materials and supplies furnished, (4) the oil and gas well for which they were furnished, and (5) other wells, fixtures, and appliances used in operating upon the same leasehold. There is no. mention of a lien upon the oil produced and it is obvious that this could not be included under any of the terms used, unless possibly a lien upon a well should be deemed a lien upon the oil flowing through it . . . But the oil is not a part of the well through which it flows . . . The statute makes no attempt to fasten the lien upon the lessor’s real estate, or to extend it beyond the interest of the lessee. As he has no title to the oil so long as it remains in the earth ... no lien can attach to it as his property until it is brought to the surface, and when that has been done, it is clearly no part of the well”. A statute like ours was construed in the case of Crowly v. Adams Bros. & Prince (Texas), 262 S. W. 883, wherein the court stated: “A laborer’s lien upon oil and gas wells, etc., under the provisions of articles 5639a-5639h, Vernon’s Ann. Civ. St. Supp. 1918, attaches only to such property as is specifically mentioned in the statute. The proceeds of the sales of oil produced from the well are not included in the statute. The Appellant, therefore, has no lien upon the money which the Magnolia Company owed for oil produced from these wells which it had purchased”.

There is another circumstance which confirms our conclusion that said Section 51-701 does not and was not meant to create a lien on oil which comes from a well. Section 51-701 was enacted by the 1923 Legislature (Act 615). The same Legislature also passed Act 513. Section 1 of the latter Act is now Section 51-320 of the Arkansas Statutes and it does provide for a “lien upon the output and production” of an oil well. In view of this we cannot say that the Legislature did not recognize a distinction between a lien on a leasehold and a lien on the output, or that it negligently omitted the latter from the provisions of Section 51-701.

It is our conclusion, therefore, that the decree of the trial court should be, and it is hereby, affirmed.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Hill v. Godwin.
    5-2027
    331 S. W. 2d 34
    Opinion delivered January 11, 1960.

      Robert N. Maxey, for appellant.

      Patrick O. Freeman, Thayer, Mo., Oscar E. Ellis, D. Leonard Lingo, Harry L. Ponder, for appellee.
   Sam Robinson, Associate Justice.

This action was filed by appellees, Norman E. Godwin and Gladys P. Godwin, to reform a deed from appellant, Lizzie W. Hill, to Chester Humphreys and subsequent deeds to the same property, including a deed to appellees. There is only one issue and that is whether Humphreys intended to buy and Mrs. Hill intended to sell all the property she owned on Goose Neck Island, which is a small tract of land consisting of a little less than 9 acres in Fulton County, immediately across Warm Fork Creek from the main part of the town of Mammoth Spring and now forming a part of that town.

The appellant, Lizzie W. Hill, owned 8.83 acres on the island. In 1949 she conveyed to Chester Humphreys 8.90 acres, “the said described land being commonly and locally known as ‘Goose Neck Island’ and forming a part of same.” (There is a small portion of the island that did not belong to Mrs. Hill and appellees make no claim to such portion.) The description in the deed from Mrs. Hill to Humphreys is as follows: ‘ ‘ Part of the East One-Half of the Southeast Fractional Quarter of the Northwest Fractional Quarter of Section Eight, (8) Township Twenty-one (21) North of Range Five (5) West of the Principal Meridian in Arkansas, in Fulton County; and, more particularly described as follows: All that acreage extending in a West and Northwesterly direction from the North-South Half Section Line of said Section Eight (8) and bounded by Warm-Fork Creek on the East and Northeast and by the Spring River as it now is flowing in the South and Southeasterly Direction, including any and all adjacent Riparian Rights in both Warm-Fork Creek and Spring River; and lying West of the present St. Louis & San Francisco Railroad Right-of-way, said acreage forming part of a peninsula or point of an irregular shape and containing Eight (8) and Ninety (90) Hundreths Acres, more or less, of land and water surface. SAVE AND EXCEPT, any and all right of way or other grant or easement heretofore made to the Mammoth Spring Electric Light and Power Company. The said described land being commonly and locally known as ‘Goose-Neck Island’ and forming a part of same.”

■ It will be seen that the deed describes the land conveyed as being in the Southeast of the Northwest of Section 8, but actually 3.6 acres of the 8.83 acres Mrs. Hill has owned on the island is in the Northeast of the Northwest of Section 8. The chancellor found that it was the intention of the parties that Mrs. Hill was selling to Mr. Humphreys all the land she owned on the island.

It appears that Mr. Humphreys wanted to buy the land for Mr. Doyle Blackburn. Mr. Robert N. Maxey, who lived at Mammoth Spring, was the agent of Mrs. Hill, looking after her property. Mrs. Hill, an elderly lady, lived in Memphis. Mr. Maxey testified that Humphreys asked him about “buying lands on Goose Neck Island. I told him I had it for sale.” (Emphasis supplied) At that time Humphreys offered $800 for “the property” and Mr. Maxey told him he would communicate the offer to Mr. Napoleon Hill, who handled Mrs. Lizzie W. Hill’s business. Later Mr. Hill called from Memphis and said Humphreys was there and had increased the offer to some extent and told Mr. Maxey “you go ahead and write the deed. We won’t have it surveyed, but will furnish the abstract.” Pursuant to this conversation Maxey wrote the deed conveying 8.90 acres more or less, which is all the land Mrs. Hill owned on Goose Neck Island. If Mrs. Hill was not selling all she owned on the Island, then Maxey would have had no way of knowing which part she was selling. None of the parties had suggested that Mrs. Hill was selling only a portion of the property she owned on the Island.

Appellant now contends she sold Humphreys only 3.83 acres, but there is no substantial evidence in the record to support that view. Practically all the evidence is to the contrary. Humphreys testified positively that he bought 8.90 acres, all the land Mrs. Hill had on Goose Neck, for the consideration of $890. Humphreys is corroborated in his testimony by the testimony of Doyle Blackburn. Mr. Maxey testified that the deed he wrote did not include all that Mrs. Hill owned on Goose Neck Island, but there is not a scintilla of evidence to the effect that it was not Mrs. Hill’s intention to convey all she owned on Goose Neck Island.

The chancellor’s decree reforming the deeds is fully sustained by the evidence. Of course, a deed may be reformed to carry out the intention of the parties. Davidson v. Peyton, 190 Ark. 573; 79 S. W. 2d 734; Robertson v. Chronister, 196 Ark. 141, 116 S. W. 2d 1048; Hervey v. College of Ozarks, 196 Ark. 481, 118 S. W. 2d 576.

Affirmed.