author: Sam Robinson, Associate Justice. Paul Ward, Associate Justice,

text:
    Dunaway v. Troutt.
    5-2153
    339 S. W. 2d 613
    Opinion delivered October 24, 1960.
    [Rehearing denied November 28, 1960.]

      Bose, MeeJc, House, Barron & Nash, for appellant Gazette Publishing Co.; Alston Jennings, for appellants Dunaway and Hill.

      Howell, Price & Worsham, for appellee.
   Sam Robinson, Associate Justice.

This is a libel action wherein appellee, Bob Troutt, was awarded a judgment in the sum of $100,000 against appellants, Harold P. Dunaway, Cecil B. Hill and Gazette Publishing Company. The publishing company publishes the Arkansas Gazette, a daily newspaper having statewide circulation. Dunaway and Hill are engaged in the business of the distribution and operation of music and pinball machines. Troutt is a newspaper reporter employed by the Arkansas Democrat, a daily newspaper published in Little Bock and circulated throughout the State.

On March 9, 1959, Troutt filed the complaint in this action in the Pulaski Circuit Court, alleging that on the 26th day of February, 1959, the defendants falsely and maliciously accused him of extortion, blackmail and accepting a “pay-off”; that the defendants “did unlawfully, wrongfully, and maliciously fabricate, invent and cause to be prepared certain tape recordings of purported telephone conversations and interviews” with him and caused such tape recordings to be materially altered and spliced and changed so as to distort and falsify the purported conversations. The complaint further alleges that Dunaway and Hill entered into a scheme and conspiracy with the Gazette to use the alleged “spurious and falsified tape recordings for the purpose of publicly discrediting the plaintiff, Bob Troutt, with his newspaper and destroying his reputation as a competitive newspaper reporter by depicting and portraying him as an extortionist and blackmailer, thereby exposing him to the public hatred, ridicule and contempt.” And the complaint further alleges “that on or about the 27th day of February, 1959, the defendant Gazette Publishing Company falsely and wilfully and maliciously published in the Arkansas Gazette the said defamatory articles.”

The defendants answered and admitted the publication of the alleged conversations between Troutt and Dunaway and Hill and alleged as a defense that such conversations as shown by the tape recordings did take place. The newspaper account of the alleged conversations is libelous per se, and since defendants admitted the publication of the defamatory matter, the burden was on them to prove that such alleged conversations between Troutt and Dunaway and Hill did occur. Stallings v. Whittaker, 55 Ark. 494, 18 S. W. 829; 33 Am. Jur. 256.

In support of Dunaway’s and Hill’s testimony that the conversations with Troutt took place as alleged, it was shown that on February 26,1958, Dunaway and Hill bought a tape recording machine and installed it in their place of business at 11th and Main in Little Bock. The machine is such as will record on a tape telephone conversations without the knowledge of those using the telephone. It does not appear that at the time of purchasing the tape recorder on February 26th Hill and Dunaway knew Troutt, but on March 4th Dunaway called Troutt and told him that someone had been making pictures of Dunaway’s and Hill’s place of business and wanted to know if Troutt knew anything about it. Both Dunaway and Hill testified that subsequently they had telephone conversations with Troutt which resulted in Hill’s paying to Troutt the sum of $2,000 for the purpose of preventing him from publishing in the Arkansas Democrat false articles that would be detrimental to Dunaway’s and Hill’s business. By its verdicts the jury necessarily found that Dunaway and Hill did not pay Troutt $2,000 as they claimed they did, and that the purported conversations as recorded on the tapes produced by Dunaway and Hill in corroboration of their testimony did not occur. The tapes were introduced in evidence, appellants contending that they are what they purport to be, a true record of the conversations between the parties; that they are the original tapes and have not been spliced or altered in any respect. On the other hand, Troutt maintains that Dunaway and Hill paid him no money whatever ; that the proposition of Dunaway and Hill paying money to him was never discussed; that the only conversation he had with them about money was when they called bim in February, 1959, and indicated that the pinball operators’ organization wanted to donate $2,000 to the March of Dimes and that pursuant to such conversation that organization did donate $2,050 to the proper officials of the March of Dimes. Troutt contends that Dunaway and Hill changed, altered and spliced the recorded tapes to make it appear that they made a deal with bim whereby he was paid $2,000 for an improper purpose, as heretofore mentioned.

In support of his contention that the tapes were altered, Troutt produced as a witness Mr. Bobert Oakes Jordan, a qualified expert in the field of recording devices. He testified that it is easy to alter tapes like the ones introduced in evidence and that in his opinion those particular tapes had been altered and spliced. Mr. Jordan testified that there are 50 or 60 spots in the tapes that indicate they have been altered in one way or another and that about 15 of such places give him absolute assurance that the tapes are altered. Mr. Jordan used the tapes to point out to the jury those things upon which he based his opinion that they have been altered. Troutt’s testimony, coupled with that of Jordan, is substantial evidence to support a verdict in favor of the plaintiff. Moreover, Mr. William S. Bachman, an expert called as a witness by appellants, testified that in his opinion the tapes had not been altered, although he said they showed evidence of having been spliced. Defendants produced weighty evidence to support their version of what transpired but of course here we do not consider the weight of the evidence. On that point the only question considered is whether there is substantial evidence to support the verdict. Providence Washington Ins. Co. v. Eagle Milling Co., Inc., 214 Ark. 918, 219 S. W. 2d 233; Bockman v. World Ins. Co., 223 Ark. 665, 268 S. W. 2d 1.

Hill testified that he paid $2,000 to Troutt in the presence of Judge Robert Laster of the Little Rock Municipal Court. Prior to the trial of the case, appellants gave due notice that the discovery deposition of Judge Laster would be taken. Before the date set for the taking of such deposition, appellants petitioned the trial court for an order authorizing the issuance of a subpoena duces tecum requiring the production of records of Judge Laster’s bank transactions along about the time Dunaway and Hill claimed they paid $2,000 to Troutt. This was on the theory that Troutt may have given some of the money to Judge Laster. The petition was denied. Ark. Stat. § 28-256 provides that upon the motion of any party showing good cause the court may order the production of documents, etc. The trial court has a wide discretion in determining whether good cause is shown for the production of documents. Vale v. Huff, 228 Ark. 272, 306 S. W. 2d 861. We cannot say the trial court abused its discretion where the appellants were asking for an investigation of the financial affairs of one who was not a party to the case and was never called as a witness in the case.

The complaint alleges that the defendants schemed and conspired together to use spurious and falsified tape recordings for the purpose of publicly discrediting the plaintiff. The Gazette requested the following instruction which was refused by the court: “You are instruct that there is no evidence that the defendant Gazette Publishing Company schemed or conspired with the co-defendants Hill and Dunaway to discredit the plaintiff or impeach his reputation, and you will therefore find for the defendant Gazette Publishing Company on that issue.” In view of the evidence the court did not err in refusing this instruction. Mr. Hugh Patterson, called as witness by appellee, testified that he is the publisher of the Arkansas Gazette; that he was out at Mr. Dunaway’s house the day before the press conference at which the transcript of the tape recordings was released to the press; and at that time, the day before the press conference, he heard the tapes played. No written transcript of the recordings had then been made, but later, and before the press conference, the attorney for Dunaway and Hill furnished to Mr. Patterson a written transcript of the recordings. Patterson drove by and picked up the transcript but did not stay. A reasonable inference deducible from the testimony is that the day before the transcript was released to the press, Dunaway and Hill, their attorney and Patterson agreed that such a release would be made. The court therefore did not err in refusing to give the above mentioned requested instruction.

The court gave appellee’s requested instruction No. 1, as follows: “You are instructed that the article published by the defendant, Gazette Publishing Company, on February 27, 1959, and set out in the complaint and exhibits thereto, is actionable of itself and that it is not privileged, and the plaintiff is entitled to recover against the defendant, Gazette Publishing Company, such compensatory damages as will fully and adequately compensate him by reason of the publication of the defamatory article by the defendant, Gazette Publishing Company, not in excess of the amount sued for, unless you find the matters concerning the plaintiff contained in the article to be true or substantially true.” This instruction was copied from an instruction approved by this Court in The State Press Co., Inc. v. Willett, 219 Ark. 850, 245 S. W. 2d 403. In the case at bar, by instructions No. 3 and No. 11 the court properly informed the jury as to the law on measure of damages.

Appellants complaint of appellee’s instruction No. 2 given by the trial court, as follows: “You are instructed that in an action for libel where the words or article published are libelous of themselves, the law implies some damage from the publication of the libelous matter, if any, and the law further implies that the person, or persons, if any, publishing such libelous matter intended the injury the libelous matter is calculated to effect, and in this case you have been told that the article and tapes complained of herein are libelous of themselves unless true or substantially true and that the burden rests upon the defendants to prove the truth of the contents of said publications.”

In contending that the instruction is erroneous, appellants first say that the law does not imply some damages from the publication of libelous matter, but appellants concede that “where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages and is not required to introduce evidence of actual damages in order to recover substantial damages.” It is hard to understand how under the law as just quoted and conceded by appellants to be correct, a plaintiff who makes out a ease of libel to the satisfaction of the jury is not entitled to some damages as a matter of law. In fact, appellants say “In an ordinary case a plaintiff has to prove that actual damages were sustained. Libel is made the exception because of the difficulty in proving actual damages.” In Taylor v. Gumpert, 96 Ark. 354, 131 S. W. 968, the Court said: “Where the slanderous words are actionable per se, the plaintiff is entitled as a matter of law to compensatory damages, and is not required to introduce evidence of actual damages to entitle him to recover substantial damages. In such a case the plaintiff need not prove actual damages in order to recover substantial damages. [Citing Murray v. Galbraith, 95 Ark. 199.]”

Next, appellants contend that although the publication was libelous per se, it was error to tell the jury that the defendants intended the injury the libelous matter is calculated to effect. The great weight of authority is to the effect that if the publication is libelous per se, the publisher is presumed to intend the natural consequences of his own act. Restatement, Torts, Vol. 3, § 580; 33 Am. Jur. 114; 53 C. J. S. 124.

Appellants further argue that the instruction is a comment on the weight of the evidence. We do not find that the instruction is defective in that respect, and, moreover, no specific objection was made in that regard. Dunaway and Hill complain of the instruction because, they say, it treats the tapes, transcript and newspaper article as one publication. For all practical purposes, it was one publication. Dunaway and Hill made the tape recordings, made a written transcript thereof, and furnished such transcript to the publishing company, which published it in the Arkansas Gazette.

Appellee’s instruction No. 12 given by the court submitted to the jury the issue of punitive damages. The Gazette objected specifically on the ground that there had been no showing of the financial condition of the Gazette. There had been some evidence introduced as to the worth of the other defendants, Dunaway and Hill. This phase of the case has caused us considerable concern. The jury returned two verdicts, one in the sum of $50,000 for compensatory damages, and one in the sum of $50,000 as punitive damages. The point is whether that part of the judgment based on punitive damages can be allowed to stand. At the trial evidence was introduced shedding some light on the financial worth of Hill and Dunaway, but there is no direct evidence in the record as to the financial condition of the Gazette. True, the record shows the Gazette is the oldest newspaper west of the Mississippi River and that it has a statewide circulation with some circulation throughout the United States, but such meager evidence is not sufficient to show just how severe the punishment would be by causing it to pay all or a pro rata part of a $50,000 judgment for punitive damages. While the payment of $50,000 or a pro rata part thereof may be practically no punishment at all for a very wealthy person or corporation, it may be the most severe punishment and ruinous to other. Where there are joint defendants and a judgment is against them jointly, as in the case at bar, all or any one of such defendants is liable to the plaintiff for the entire judgment. Southwestern Gas & Electric Co. v. Godfrey, 178 Ark. 103, 10 S. W. 2d 894. The individual liability of joint tort-feasors to the injured party is unaffected by the Contribution Among Tort-feasors Act, Ark. Stat. §§ 34-1001 — 34-1009. Section 34-1003 provides: “Nothing in this act . . . shall be construed to effect the several joint tort-feasors’ common law liability to have judgment recovered and payment made from them individually by the injured person for the whole injury; . . .” Under our contribution Among Joint Tort-feasors statutes, one defendant may proceed against others liable to the injured party for his pro rata share, but this does not affect the right of the injured party to recover from the joint tort-feasors individually or collectively.

This kind of action, involving punitive damages, has given rise to two lines of decisions. First, the majority holds that since the judgment for punitive damages against joint tort-feasors may actually result in greater punishment for one or more of those jointly liable, than to another who is equally liable, the right to recover such punitive damages is waived when two or more parties are made defendants in a case where punitive damages may be assessable.

There is an annotation on the subject in 63 A. L. R. 1405. In support of the majority rule cases are cited from the United States Supreme Court and from the states of Illinois, Missouri, Texas, Vermont, Virginia, Washington and Wisconsin. On the other hand, in support of the minority rule cases are cited from the states of Mississippi, Ohio and Pennsylvania. Perhaps the leading case in support of the majority is that of Washington Gas-Light Co. v. Lansden, 172 U. S. 534, 19 S. Ct. 296, 43 L. Ed. 543. There the Supreme Court of the United States said: “Punitive damages are damages beyond and above the amount which the plaintiff has really suffered, and they are awarded upon the theory that they are a punishment to the defendant, and not a mere matter of compensation for injuries sustained by plaintiff. While all defendants joined are liable for compensatory damages, there is no justice in allowing the recovery of punitive damages, in an action against several defendants, based upon evidence of the wealth and ability to pay such damages on the part of one of the defendants only. As the verdict must be for one sum against all defendants who are guilty, it seems to be plain that, when a plaintiff voluntarily joins several parties as defendants, he must be held to thereby waive any right to recover punitive damages against all, founded upon evidence of the ability of one of the several defendants to pay them.” And in Leavell v. Leavell, 114 Mo. App. 24, 89 S. W. 55, the Missouri court quoted with approval the above language of the United States Supreme Court. See, also, Chicago City R. Co. v. Henry, 62 Ill. 142; Schafer v. Ostmann, 148 Mo. App. 644, 129 S. W. 63; Smith v. Wunderlich, 70 Ill. 426; Lister v. McKee, 79 Ill. App. 210; Singer Mfg. Co. v. Bryant, 105 Va. 403, 54 S. E. 320. And in McAllister v. Kimberly-Clark Co., 169 Wis. 473, 173 N. W. 216, the court said: “Plaintiff here, however, having an option to sue one or more of the joint tort feasors concerned in this transaction has elected to sue more than one. Having so elected, whatever judgment is to be entered in such action must be entered as against all such defendants found liable. Such defendants necessarily stand on the same footing so far as compensatory damages are concerned; but when, for the purpose of enhancing what may be given by the jury for punitory damages, evidence is offered as to the financial ability of the one, it cannot but affect the amount of punitory damages to be recovered against the others, for these also must be assessed against all or none. There is no provision of the statute by which the amount of punitory damages may be assessed separately against the several defendants and we have no inclination, even if we had the power so to do, to establish by decision any such innovation in favor of this element of damage. Where, as here, the financial ability of the several defendants is different, as manifestly it would be in the vast majority of cases, a number of authorities have held the admission of such evidence as against the one to be prejudicial error against the other, and we adopt that view.”

In support of the minority view it is argued that a wealthy person may join with him one of meager means and thereby avoid the risk of having a judgment for punitive damages rendered against him. In the Mississippi case of Bell v. Morrison, 27 Miss. 68, the court said: “The action was for the joint tort of the defendants, who joined in their pleas. In such a case, it is held to be proper for the jury to assess damages against all the defendants jointly, according to the amount which, in their judgment, the most culpable of them ought to pay . . . Whatever, therefore, would be competent evidence with that view as to one, would be competent as to all of the defendants. Otherwise a wealthy defendant, who is principally implicated in a wrong of this character, might escape the payment of just and reasonable damages, by having others, without character or property, associated in the unlawful act.”

Up to this time this Court has not had occasion to rule on the question, and there is no statute covering the situation. After reviewing all of the authority on the subject, we are of the opinion that the better rule is that the plaintiff waives the right to punitive damages when more than one party is made defendant in a case where ordinarily punitive damages would be assessable. Compensatory damages are awarded for the purpose of making the injured party whole, as nearly as possible. To accomplish this result, Troutt was given a judgment for $50,000, based on the verdict for that amount as compensatory damages. The $50,000 verdict based on punitive damages was not to compensate him for any damages he had sustained, but was to punish the defendants for the wrong the jury found they had committed. When a plaintiff is awarded a judgment based on punitive damages, it is somewhat of a windfall for him, because punitive damages cannot be assessed unless compensatory damages are awarded. Kroger Gro. & Baking Co. v. Reeves, 210 Ark. 128, 194 S. W. 2d 876.

By adopting the majority view, it is possible that one wrongfully publishing a libel may go unpunished by not having a judgment for punitive damages rendered against him. But on the other hand, if the minority view were adopted, a joint tort-feasor may be unjustly punished. The principle is firmly established and recognized in all courts and in every civilized country that it is better that several guilty persons go unpunished than that one innocent person be punished. Having reached this conclusion, it follows that the judgment based on punitive damages must be reversed and dismissed. This leaves intact the judgment to the extent of $50,000 for compensatory damages.

Appellants have argued other points, all of which we have examined carefully, but we find no other error.

It follows that the judgment will be reduced to the sum of $50,000, and judgment be rendered here in favor of appellee against appellants for that amount. Since the judgment is reduced by a substantial amount, the costs of the appeal will be awarded to the appellants. Hodges v. Smith, 175 Ark. 101, 298 S. W. 1023.

Ward, J., concurs.

McFaddin and George Rose Smith, JJ., not participating.

Paul Ward, Associate Justice,

concurring. What I have to say hereafter is confined strictly to the question of punitive damages.

I agree with the result reached by the majority for the reasons that the judgment in this case was rendered against all three of the defendants, for the reason that a separate judgment against each individual defendant was not requested, for the reason that the Gazette’s ability to pay was not shown, and for the reason that this court had no way of equitably dividing the judgment. Under these circumstances the court could do nothing except remit the judgment entirely. The majority, however, did not reach its decision on the above stated ground, and that is the reason for this concurrence.

The majority opinion contains the following statement based on what it calls the majority rule: ‘ ‘ The right to recover (such) punitive damages is waived when two or more parties are made defendants in a case where punitive damages may be assessable. ’ ’

I do not agree with the so-called majority rule, and I do not think it was necessary to rely on such a rule in this ease. Since it was not necessary, I feel that the court should have waited until the specific question is raised and carefully briefed in this court.

I see no logical or practical reason why separate judgments cannot, in the same case, be rendered against separate defendants. It must be conceded that the plaintiff can recover punitive damages against one person and then in a separate suit likewise recover against another person. In either event the court and the jury acted on precisely the same law and the same evidence. Not only would my view avoid a multiplicity of suits, but any other procedure might run afoul of Ark. Stats. § 27-814, which require a joinder of parties.

The view which I have above set forth has been approved in the case of Charles E. Faroux, et al. v. H. H. Cornwell, et al., 40 Tex. Civ. App. 529, 90 S. W. 537; Walker, et al. v. Kellar, Tex. Civ. App., 226 S. W. 796; and St. Louis Southwestern Railway Company of Texas v. W. Z. Thompson, 102 Tex. 89, 113 S. W. 144.

In the latter mentioned case the court had this to say:

“If the defendants or either of them were actuated by malice in making the charges against Thompson or in procuring the same to be made and in prosecuting the same before the order, thereby procuring his expulsion, then the plaintiff may in the discretion of the jury recover exemplary damages against either or all of the said defendants, in such sum as the jury may believe should be assessed against the said defendants or either of them. It is not necessary, as in case of actual damages recovered, that all of the defendants should be subjected to the same verdict, because some of the defendants may have acted without malice, but in combination with others, and as to such defendants there would be no right to recover exemplary damages.”


source: Caselaw Access Project

author: Jim Johnson, Associate Justice. Carleton Harris, Chief Justice,

license: Public Domain

text:
    Duncan v. Crowder.
    5-2120
    339 S. W. 2d 310
    Opinion delivered October 24, 1960.

      Rex W. Perkins, Charles Bass Trumbo and E. J. Ball, for appellants.

      Wade & McAllister, for appellee.
   Jim Johnson, Associate Justice.

TMs is a child custody case. On March 19, 1956, the Chancery Court of Tippah County, Mississippi, entered a decree of divorce in favor of Jeanne Duncan Crowder against her husband, Frank Lindoerfer, and awarded sole custody of said parties’ minor child, Nettie Katherine Lindoerfer, then aged two years, to Jeanne Duncan Lindoerfer, appellee herein, but with the provision that the maternal grandfather, T. E. Duncan, one of the appellants herein, be awarded temporary custody of said minor child until such time as the child’s mother was able to provide a suitable home for her child.

On August 23, 1958, the child’s mother married James Alvin Crowder and on October 31, 1958, filed a petition for writ of habeas corpus in the Washington Circuit Court to obtain custody of her minor child from her maternal grandparents, the appellants herein.

The cause was subsequently transferred to the Washington Chancery Court and on July 17, 1959, the Washington Chancery Court entered a decree directing appellants to deliver custody of the child, then five years of age, to appellee on or before 12:00 o’clock noon, July 20, 1959.

On July 18, 1959, appellants filed notice of appeal to this Court and a supersedeas bond, which bond was approved by the Washington Chancery Court. On July 24, 1959, appellee petitioned the Washington Chancery Court for an order citing appellants to appear before the Washington Chancery Court and show cause why they should not be adjudged in contempt of the decree of the Washington Chancery Court rendered July 17, 1959, for failure to deliver custody of said minor child to appellee prior to 12:00 o’clock noon, July 20, 1959.

On July 29, 1959, the Washington Chancery Court entered an order dismissing appellee’s petition for citation for contempt for want of jurisdiction and on August 12, 1959, three Justices of this Court during recess entered a temporary per curiam order subject to action of the Full Court referring the matter of fixing custody of said minor child, pending appeal to this Court, back to the Washington Chancery Court.

On August 13,1959, the Washington Chancery Court directed appellants to appear and show cause why the custody of said minor child should not forthwith be delivered to appellee, and on August 18, 1959, the Washington Chancery Court awarded temporary custody of said minor child to appellee pending determination of appellants’ appeal to this Court and at the hearing approved a $1,000 bond filed by appellee conditioned to redeliver custody of said child to the jurisdiction of the Washington Chancery Court upon order therefor by either the Washington Chancery Court or this Court, following a final decision of the case upon its merits by this Court.

Upon reconvening, this Court entered on September 7, 1959, the following order:

“The temporary order made during recess confirmed. The trial court had discretion and power to fix custody pending our decision. There is no absolute right of supersedeas in child custody cases.”

This appeal is now before this Court for a final determination upon its merit.

Appellee, Jeanne Duncan Crowder, is the only daughter of Talmadge Edward Duncan and Mary Evelyn Duncan, appellants herein. Mrs. Duncan is now over 58 years of age. Mr. Duncan is now over 60 years of age. The Duncans reside at 416 North Washington Avenue, Fayetteville, Arkansas. Nettie Katherine Lindoerfer, the appellee’s first born child, was born March 23, 1954.

Mrs. Crowder lived with her daughter, Nettie, in the home of the maternal grandparents during the first year and a half of the child’s life. During that period of time the mother rendered normal care for Nettie and evidenced love and affection for her. To better prepare herself to provide for her child Mrs. Crowder earned a master’s degree at the University of Arkansas. This graduate study was pursued and accomplished with the complete knowledge, consent and approval of the Dun-cans. Later Mrs. Crowder maintained an active interest, love, and affection for her minor child through cards, letters, gifts, and visits to her while participating in the doctoral programs in universities in Atlanta, Georgia, and New Orleans, Louisiana. During this time a divorce decree was rendered in favor of Mrs. Crowder by the Chancery Court of Tippah County, Mississippi, on March 19, 1956, in which decree the sole custody of Nettie was awarded to Mrs. Crowder with temporary custody of Nettie awarded to Mr. Duncan until such time as Mrs. Crowder could provide a suitable home for her daughter.

At no time did the Duncans challenge Mrs. Crowder’s fitness as a mother of her lawful right to sole custody of Nettie until after it became evident to them that following their daughter’s marriage to James A. Crowder that she was then able to provide a suitable home for the child.

The record is clear that at no time since Nettie’s birth did Mrs. Crowder abandon her. Mrs. Crowder rendered the normal care any young mother would for her first born child, and although she was away from home for her graduate studies, she visited her daughter at the normal vacation periods such as Thanksgiving, Christmas, Easter and all other opportunities. The transcript lists the many letters and cards from Mrs. Crowder to Nettie which were recognized in Mrs. Duncan’s letters to Mrs. Crowder; a list of gifts from Mrs. Crowder which were recognized in Mrs. Duncan’s letters to Mrs. Crowder; and a list of Mrs. Crowder’s gifts to Nettie which were not mentioned in Mrs. Duncan’s letters to Mrs. Crowder. Six weeks prior to their wedding, on August 23, 1958, in the home of Mr. and Mrs. Duncan, Mr. and Mrs. Crowder discussed Nettie’s future with Mr. and Mrs. Duncan. A discussion was held in a drug store in Blue Mountain, Mississippi, which resulted in a verbal understanding between them and the Duncans that Nettie would make several visits to the Crowders during the ensuing fall, winter, and spring, leading to her living with the Crowders permanently after the spring or summer of 1959, this period of several months being considered as an adjustment period for all parties concerned.

Mr. Crowder, the son of a retired Baptist minister, is employed as a psychiatric social worker at the Southeast Louisiana Hospital and the Bogalusa Guidance Center, and earns in excess of $400 per month. He carries over $10,000 insurance upon his life with his wife as beneficiary. He also carries hospitalization insurance and an income protection insurance policy which would pay him $300 per month in the event of his disability. He holds a master’s degree in social work from Louisiana State University; served as county director of Alabama Department of Public Welfare for a number of years, having administrative and supervisory responsibility for the county adoption and aid to dependent children programs. For two years he served as probation and parole officer of the local juvenile court. His moral character and general reputation are unquestioned.

Mr. and Mrs. Crowder rent a five room duplex apartment at 2118 Charlton Lane, Metaire, Louisiana, a suburb of New Orleans. The street is a private dead-end drive. In addition to a fenced back yard, there is a large wooded lot next door. The house has a living room, dining room, two bedrooms, kitchen and bath. It is completely furnished with furniture most of which was refinished by the Crowders’ own hands. It is located in a residential neighborhood near a school and is sheltered from heavy traffic.

Mr. and Mrs. Crowder are members of the St. Charles Avenue Baptist Church and are regular in their attendance there.

At the time of the trial, Mrs. Crowder was pregnant with a second child — to become a brother or sister of Nettie’s. The record shows that Nettie went into the Crowder home prior to the expected birth of her sibling. The record reflects that the Crowders felt it important for Nettie to anticipate and participate in the approaching birth of the second child in the Crowder family. Reputable people in the Crowders ’ home community attested to the fact that Mr. and Mrs. Crowder have established and are maintaining a suitable home for the complete and absolute care and control of Nettie.

The record of this ease is voluminous. A detailed statement of the facts would serve no useful purpose. We have deliberately drawn the mantle of judicial discretion around the somewhat sordid details brought into the evidence by the grandparents in their determined efforts to keep the little girl. We find no merit in such evidence. As in all child custody cases, the tender consideration we have for the future of the child involved causes us more concern than we experience in any other type of case. Of course it is a universal rule of law that the paramount consideration in awarding custody of minor children is the best interest and welfare of the child. However, in accomplishing this end, in order to as nearly as possible maintain a uniformity in the law, we must follow our rules heretofore laid down in prior decisions.

In Kimberling v. Rogers, 227 Ark. 221, 297 S. W. 2d 722, this Court said:

“Because human nature is as it is, no two child custody cases can ever be exactly the same; so the policy is to examine our other similar child custody cases and then see which one more nearly resembles the case at bar. ’ ’

Our research reveals that the case of Loewe v. Shook, 171 Ark. 475, 284 S. W. 726, resembles the case at bar a great deal. In this case the mother sought to obtain custody of her 3 year old daughter from the paternal grandparents. After marriage the mother and father resided with the paternal grandparents where the child was born. The mother nursed and cared for the child while living with the paternal grandparents. When the husband died the mother and her child lived with her sister, her parents, her sister again, with the paternal grandparents and then back with her parents. The mother went to work leaving her child with the paternal grandparents and visited the child during the six months she was working prior to her second marriage. After her marriage she got her child and kept it for about two weeks. She became ill and requested the paternal grandparents to keep the child until she got well, at which time they refused to give it to her. The grandparents contended that the mother was not a fit person to have the custody of her child, and endeavored to show that the mother was an immoral woman. This Court in awarding custody to the mother held:

“There can be no question in the law that, as between a mother and grandparents, the mother is entitled to the custody of her child, ‘unless incompetent or unfit, because of poverty or depravity, to provide the physical comforts and moral training essential to the life and well being of her child.’ Washaw v. Gimble, 50 Ark. 351, 7 S. W. 389; Baker v. Durham, 95 Ark. 355, 129 S. W. 789.
“. . . Her reputation for immorality was based largely upon the fact that she went riding at nights during that period with a married man or two. There is nothing in the record of consequence tending to show that she had continued this alleged conduct or that she has been guilty of any indiscretion since she married (her second husband) . . . The child is barely four years of age at this time, and, if her mother is conducting herself discreetly, we can see no good reason why she should be deprived of the joy of parental relationship. If she is leading and will continue to lead a righteous life, the pleasures incident to motherhood should be accorded her by the courts. According to the record, she is not lacking in affection for her child. She is keeping house in Halley, and her husband is amply able and willing to maintain, support, and educate the child. We are unable to discern anything in the record to indicate that the present and future welfare of the child will be imperiled by placing it under the care and control of the respondents. ’ ’ See also: Servaes v. Bryant, 220 Ark. 769, 250 S. W. 2d 134 (1952).

The case of Parks v. Crowley, 221 Ark. 340, 253 S. W. 2d 561 (1952) involved the custody of a 5-1/2 year old girl child, the Court in reversing the trial court and awarding custody to the mother as against the paternal grandparents said:

“. . . the child’s father is not a party to this action. According to this record, he has never shown the slightest interest in Pamela and has never provided a home or any support for her . . . On February 28, 1949, Frances (the mother) married Parks (second husband) and they now have a son two years of age. The record discloses that on September 4, 1946, Jack Crowley (the father) secured a Florida divorce from Frances and seven days later she gave birth to Pamela. Shortly thereafter, Frances took her baby to the home of her parents in Paragould and later secured employment to support herself and child. During this period, Frances had allowed the child to stay in the home of its paternal grandparents (appellees) a greater part of the time. Appellees are good people and their affection for the child and desire to care for it are not questioned . . . ” In reversing the trial court, this Court in the Parks case said:
“In considering this case, we do not lose sight of the fact that we are dealing with the welfare of a little girl of the tender age of five years when obviously she is most in need of the loving care of its real mother unless the mother is so depraved morally or otherwise as would render her unfit to have her child. While appellees have had her custody for most of her life, when the real mother shows that she is entitled to its custody, we must know, human nature being what it is, that the love and attachment of this little girl for her grandparents (appellees) cannot have become so deep rooted and attached that it could not, within a very short time, be transferred to her real mother by proper treatment, love and care, if given opportunity. ’ ’

In the recent case of Rayburn v. Rayburn, 231 Ark. 745, 332 S. W. 2d 230, this Court reiterated the principles announced in the decisions cited hereinabove in awarding a natural parent custody of a minor child, saying:

“. . . A natural parent’s right to custody of a child is paramount to all others unless the parent is proved to be incompetent or unfit. See: Cook v. Haynie, 230 Ark. 174, 321 S. W. 2d 201; Holmes v. Coleman, 195 Ark. 196, 111 S. W. 2d 474; Loewe v. Shook, 171 Ark. 475, 284 S. W. 726; Baker v. Durham, 95 Ark. 355, 129 S. W. 789.”

From what has been said above, the record before us, and finding no merit in the points urged by appellants for reversal, on trial de novo we are unwilling to say that the Chancellor’s opinion (which was rendered after having observed the witnesses testifying and after having interviewed the little girl in chambers) awarding custody of the child to appellee is against the weight of the evidence.

Affirmed.

Harris, C. J., and Holt, J., dissent.

Carleton Harris, Chief Justice,

dissenting. I feel that the Court should have granted custody of the child, Nettie Katherine, at least for the time being, to the grandparents, Mr. and Mrs. Duncan, rather than to the mother, Jeanne Duncan Lindoerfer Crowder.

The Majority have not seen fit to relate the evidence which most strongly supports the view that Mrs. Crowder is unsuitable to be given the custody of the child. Since they have not done this, I shall follow suit, for the testimony is, as the Majority state, rather sordid, and nothing would be gained by discussing the charges of immorality against appellee (a substantial part of which was admitted), other than to considerably strengthen this dissent, which, after all, is unimportant.

Suffice it to say, that the conduct referred to occurred some seven or eight years before this trial, while appellee was a student at a girls ’ school in a neighboring state. It may be, as Mrs. Crowder stated, in defending her conduct, that it was “mostly a case of delayed adolescence”, but the admitted acts occurred during the course of a year when appellee was 19 to 20 years of age. Be that as it may, this testimony was only a part of the evidence which I consider to indicate Mrs. Crowder’s emotional instability or immaturity. A short time after her graduation, she married Frank Lindoerfer, father of Nettie, but they separated after five months. Subsequently, she went to Emory University, where she had been awarded a fellowship, in furtherance of an expressed intention to obtain advanced degrees in psychology. During this period, though still married to Mr. Lindoerfer, she dated a man named Sheldon Fein, admittedly thought she was in love with him, and discussed the subject of future marriage. The relationship with Fein was terminated because the appellants herein wrote Fein, and apparently threatened to attempt to obtain his dismissal from the school. Sometime subsequently, the fellowship awarded appellee was cancelled by the Dean of Emory University, because of her unsatisfactory scholastic record. Mrs. Crowder had been married to her present husband less than eleven months at the time of the rendition of this decree, which, under my view, is not a sufficient period of time in which to determine whether this marriage will provide a suitable home environment, or whether appellee has attained that degree of stability which is so desirable and necessary for one having the custody of a small child.

Certainly, I have no desire to punish Mrs. Crowder for “indiscretions” of youth, if, in fact, the acts mentioned in the testimony were indiscretions, rather than evidence of a fixed behavior pattern. I also recognize there are two sides to this lawsuit, and that perhaps appellants are not entirely blameless, but I am firmly of the opinion that the Court’s order giving appellee custody of this child was premature; i.e., her change in habits and attitudes should be more firmly established before entrusting her with the care of this little girl.

I therefore respectfully dissent.

Mr. Justice Holt joins in this dissent.


author: Carleton Harris, Chief Justice.

text:
    Walls v. Walls.
    5-2201
    339 S. W. 2d 430
    Opinion delivered October 31, 1960.

      George F. Edwardes, for appellant,

      Stroud & McClerkin, for appellee.
   Carleton Harris, Chief Justice.

This is the second appeal involving these parties. In Walls v. Walls, 227 Ark. 191, 297 S. W. 2d 648, this Court upheld the action of the Chancellor in refusing to grant appellee, Pearl Roberson Walls, a divorce, but modified the court’s decree by directing that appellant, D. C. Walls, be given custody of the three older children born of the marriage, and Mrs. Walls retain custody of the two younger children. The trial court’s order directing appellant to vacate the farm home, owned as an estate by the entirety by Mr. and Mrs. Walls, was set aside. Since that time, appellant, and the children whose custody was placed in him, have continued to occupy the home place. Mrs. Walls did not return to the home, and has lived with the two younger children at the Bramble Courts in Texarkana. She is presently employed, and earns “take home pay” of $37 per week.

Appellant instituted suit for divorce on February 16, 1959, alleging desertion, and continuous separation for a period of three years without cohabitation. An answer was filed by appellee, admitting the three years separation, but denying that Mr. Walls was the injured party. On hearing, the court granted appellant a divorce upon the ground of three years separation; awarded the custody of the two older children, Clovis Wayne Walls, age 15, and Janice Walls, now 13, to appellant, and awarded the custody of the two younger children, Cathy Ann Walls, age 9, and Terrell Walls, age 5, to appellee. Appellant was directed to pay to Mrs. Walls the sum of $25 per week for the care and support of the minor children in her custody. The court further ordered appellant to pay certain hospital and medical bills that had accrued, and an additional fee of $100.00 to appellee’s attorneys. No order was made relative to the home property, other than a finding by the court that Mr. and Mrs. Walls owned this property as an estate by the entirety. From such decree, appellant brings this appeal.

Appellant contends (1) that the court erred in awarding the custody of the two younger children to Mrs. Walls, (2) that the decree should have granted appellant the right of subrogation upon payment of the mortgage indebtedness on property belonging to the parties, (3) that the court erred in ordering the payment of attorneys’ fees to appellee’s attorneys because she was the party at fault, (4) the court erred in ordering Mr. Walls to pay hospital and doctor bills for the reason that appellant had adequate insurance for such purposes, and was entitled to co-operation from appellee in filing proof of loss, (5) that the court erred in failing to protect the equitable estate of Mrs. Zora Walls, mother of appellant, in the property involved in this litigation, and (6) that the award for maintenance for the two smaller children was excessive.

Appellant argues that since Mrs. Walls left her husband, and the home, without cause (See Walls v. Walls, supra), the awarding of custody of the two younger children to her was improper. In the first case we stated:

“Determining the custody of the children presents a more difficult problem. It is well established that children, where possible, should remain together. It is likewise true that the law favors granting custody of small children to the mother. This, however, is not a ‘hard and fast’ rule, and each case must be governed by its own particular circumstances. We feel that the two young children, taken away from the home by the mother, should remain with her. We think, however, that the Chancellor should have left the custody of the three remaining at home, with the father. As far as the record shows, the children, in each location, have been well cared for, and both parents seem to be morally qualified to have the custody. Near the home place, appellant constructed a residence for his invalid mother and sister, and the sister seems capable of looking after these children, all of whom are of school age. It is with reluctance that we separate these youngsters, but it is felt that under the circumstances, their best interests will be served, as well as the best interests of their parents.”

There was no evidence in the present hearing which indicates that circumstances have varied to the extent that a change in custody would be justified. We have held that “a decree fixing the custody of a child is, however, final on the conditions then existing, and should not be changed afterwards unless on altered conditions since the decree, or on material facts existing at the time of the decree but unknown to the court, and then only for the welfare of the child.” See Blake v. Smith, 209 Ark. 304, 190 S. W. 2d 455, and cases cited therein.

Relative to his second contention, the record reflects that the home property was mortgaged in the amount of $1600.00, payable in annual installments of $400.00, for which the parties hereto are jointly liable. In the first place, the right of subrogation is not sought in the pleadings, appellant only asking “that the title to his property be clear ’ ’; nor is there anything in the record to suggest that appellee will not join in the payments. At any rate, it appears that the indebtedness has not yet been satisfied, and we have held on numerous occasions that subrogation cannot be claimed until the entire indebtedness is paid. See North Arkansas Milling Company v. Lipari, 231 Ark. 965, 333 S. W. 2d 713, and cases cited therein.

In regard to point three, the awarding of attorneys’ fees is within the sound discretion of the trial court, and the order of that court will not be disturbed unless there has been an abuse of discretion. In Laird v. Laird, 201 Ark. 483, 145 S. W. 2d 27 (1940), a divorce was granted the husband, the court finding the wife to be at fault. The trial court allowed alimony, and an attorney’s fee for appellant’s attorney. This Court, though affirming the decree of divorce, and thereby sustaining the trial court’s view that the wife was at fault, not only upheld the right of the trial court to award alimony, and fix an attorney’s fee for the wife’s attorney, but also held that the amounts granted by the trial court were too small, and directed that larger allowances be made. We find no abuse of discretion by the Chancellor in the order relating to attorneys’ fees in the cause before us.

Appellant was ordered to pay accrued medical bills (the record is silent as to the amounts involved), which appellee testified were bills due for services rendered to the children in her custody. We have held that the father is liable for medical services rendered to his children. Bradas v. Downing, 202 Ark. 90, 150 S. W. 2d 27 (1941). Appellant does not question the amount involved; his complaint is that he carried insurance which would have covered these bills, but that appellee did not notify him in time for a claim to be timely filed. Mrs. Walls testified that she did not know that the insurance provided complete medical care for the children, until so advised by appellant, and this knowledge was obtained at a time when it was too late to file for benefits. Of course, appellee could not be expected to give notice concerning coverage which she knew nothing about. We think it well, however, to point out, that Mrs. Walls certainly is now aware of the fact that Mr. Walls carries this type of insurance, and henceforth, she should co-operate in every respect with appellant by notifying him immediately of any medical bills incurred, and assisting, as may be required, in filing claims for benefits.

The next alleged error deals with the failure of the court to convey one acre of the property herein involved to Mrs. Zora Walls, mother of appellant. The record reflects that at the time the house was built on the land, the mother and a sister of Mr. Walls provided approximately $650.00 to apply on the construction of the house. According to both appellant and appellee, there was an agreement that the mother and sister could stay in the house as long as they lived, but Mr. Walls, though admitting the agreement, testified: “I feel like we should deed her an acre of ground myself.” Since an agreement to deed an acre is neither alleged nor testified to by any party, it is apparent that no consideration can be given this contention. The interest of this mother and sister, Zora Walls and Bessie Scoggins, seems to be fully protected in conformity with the agreement reached, as appellee testified, “As long as they live and want it as a home, it is theirs, as far as I am concerned.”

Finally, appellant contends that the amount of maintenance ordered for the support of the minor children is excessive. As stated, this amount was $25 per week, or $12.50 per child. The proof reflects that Mr. Walls has “take home pay” of approximately $360.00 per month. He has possession of the home place, while it is necessary that appellee, from her earnings, rent quarters in which to live, together with the children placed in her custody. Under these circumstances, we cannot say that the maintenance awarded is excessive.

The decree is affirmed.

Appellee’s attorneys seek a further fee on this appeal, and of course, additional time and labor have been required to represent Mrs. Walls in this Court. We think, considering appellant’s income, the obligations presently incumbent upon him under the decree, and the fact he has already paid the sum of $200.00 to Mrs. Walls’ attorneys, that an additional fee of $50 is proper and equitable. Costs against appellant.

       The eldest child, a daughter, has since married and moved away.

       Appellant had already paid $100.00 to appellee’s attorneys.


author: J. Seaborn Holt, Associate Justice. Paul Ward, Associate Justice,

text:
    Boland v. Bellis.
    5-2227
    339 S. W. 2d 424
    Opinion delivered October 31, 1960.

      I. G. Burgess, for appellant.

      Richard Mobley, for appellee.
   J. Seaborn Holt, Associate Justice.

Appellant, S. O. Boland, brought this suit to cancel an alleged forged mineral deed. Appellees, J. H. Bellis and Heirs of J. H. Bellis, L. H. Owens, Heirs of L. H. Owens, W. E. Witt and Unknown Heirs of W. E. Witt, answered with a denial that the deed was forged. Prom a decree denying appellant the relief prayed is this appeal.

The record reflects that on March 1, 1929, E. A. Woods and wife [the record title owners of a tract of land containing 102 acres] purportedly conveyed a one-half undivided interest in and to the minerals under this land to J. H. Bellis. On April 29, 1930, following the death of J. H. Bellis, his heirs conveyed a part of their mineral rights in the above land to the appellees, Owens and Witt. It further appears that on January 2, 1935 [and recorded January 19, 1935] E. A. Woods and wife had executed and delivered a Federal Land Bank mortgage which recited that it was subject to the above mineral conveyance in question. On November 28, 1947, E. A. Woods and wife sold the 102 acre tract of land here involved to S. L. Boland.

In the trial, Boland claimed that the deed to Owens and Witt was a forgery and in an effort to prove his claim, produced two witnesses, himself and E. A. Woods. They both testified, in effect, that the deed to Owens and Witt was a forgery. As indicated, the testimony of these two witnesses was all the evidence introduced by appellant, Boland. At this point, appellant offered no further testimony. Appellees filed a demurrer to appellant’s evidence, challenging its sufficiency to grant the relief sought under authority of Act 470 of 1949 [Ark. Stats. (1947) § 27-1729 as amended]. After hearing arguments the trial court sustained the demurrer and dismissed appellant’s complaint and this appeal followed.

Appellees argue that, (1) appellant did not produce that quantum of proof required to set aside the mineral deed in question which was acknowledged, recorded, and allowed to remain unchallenged for over thirty years (2) appellant’s proof, even when viewed in its most favorable light, shows that his case is barred by limitations and laches. Here we are confronted with a procedural question, a question of law and not of fact. The present case appears to be practically on all fours with our holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, under a similar fact situation. We there pointed out that it was the duty of the trial court to give the plaintiff’s [appellant] evidence its strongest probative force and to hold against the plaintiff only when after so considering the evidence it should fail to make a prima facie case. “What, then, is the effect of a demurrer to the evidence or a similar pleading in jurisdictions recognizing that practice? The question may arise either in equity cases, where the chancellor is the arbiter of the facts, or in cases tried at law without a jury, where also the trial judge decides all issues of fact. By the overwhelming weight of authority it is the trial court’s duty, in passing upon either a demurrer to the evidence or a motion for judgment in law cases tried without a jury, to give the evidence its strongest probative force in favor of the plaintiff and to rule against the plaintiff only if his evidence when so considered fails to make a prima facie case.” We reaffirmed this holding in the recent case of Weaver v. Weaver, 231 Ark. 341, 329 S. W. 2d 422.

On this record, we cannot say that there was no substantial evidence offered by appellant to make a prima facie case in his favor. We are not here deciding as to what the chancery court would hold on final weighing of the evidence. We hold that the court erred in sustaining appellees’ demurrer and motion to dismiss and accordingly, the decree is reversed and the case remanded for further proceedings.

Reversed and remanded.

Ward and Robinson, JJ., concur.

Paul Ward, Associate Justice,

concurring. I am writing this concurrence to save for future consideration a point of law which the majority opinion does not mention. This question of law may be briefly stated as follows: Shall the grantee of real estate take notice, under any circumstance, of a forged deed which appears in his chain of title?

To better understand the point which I wish to make in this concurrence it will help to set forth the following brief statement of facts.

Eunice Woods owned the lands here in question prior to 1929; on March 2,1929, there appeared of record a mineral deed (apparently) executed by Woods conveying a y2 interest in mineral rights to J. H. Bellis; in 1947 Woods conveyed the land to S. L. Boland (appellant) by warranty deed showing no exceptions to the full fee; when Boland bought the land and the abstract was delivered to him he had the abstract examined by an attorney of his choice. Eleven years later Bolánd instituted this action to cancel the said mineral deed on the ground that it was a forgery.

The majority opinion reverses the case under the rule in Werbe v. Holt, but did not discuss the question which I have mentioned above. It is my distinct understanding that the majority opinion makes no attempt to decide one way or the other the aforementioned question. It is with that understanding that I now concur and do not dissent.

I fully recognize and readily agree that the forged mineral deed (if it was forged) constituted no constructive notice to Woods as long as he held the land. If this were not true then Woods would be forced to search the records periodically to see if there was anything of record affecting his title. However in this case, when Boland bought the land in 1947 and had his abstract examined he could have, by the exercise of ordinary care, found the mineral deed as a cloud on his fee title. At that time he had a right to bring an action to set aside that cloud. That right however should not, for practical reasons, exist forever. It must follow therefore that he could lose this right under one of several statutes of limitations, none of which extend for a period of more than seven years. In this instance he waited eleven years and thereby, I think, lost his right to maintain this action.

I have been unable to find where this exact point of law has been considered in any of our opinions. However there is support for my view in other jurisdictions. In the case of Duphhorne v. Moore, 82 Kan. 159, 107 P. 791, the court was concerned with setting aside a deed induced by fraud and the court said: “For the purpose of setting the statute of limitations in operation, the fraud is deemed to be discovered whenever it is discoverable by the exercise of the diligence reasonably to be expected of one in the position of the person defrauded under all the circumstances.”

Applying the reasoning in the above cited case only one result can be reached under the facts and circumstances in this case. .If Boland had exercised the slightest diligence he would have discovered that a mineral deed had been executed some twenty-five years previously; he must have known that there was a chance that his fee was likely to be impaired; he must be charged with lack of diligence when he paid Woods the full purchase price for the full fee knowing that he might not be getting % of the mineral rights. Therefore it is unreasonable and impractical to say that Boland did not have some kind of notice, or to say that this notice did not set in motion the statute of limitations.

Sam Robinson, Associate Justice, concurring. I concur for the purpose of pointing out that as I understand it, this case is decided here strictly on a point of procedure, in which we adhere to the rule announced in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225. The Court does not reach the point of whether Boland, under all the circumstances, is barred by the principle of laches from proving the deed from Woods to Boland is a forgery.


author: Ed. F. McFaddin, Associate Justice.

text:
    Berry v. Hall, Secretary of State.
    5-2296
    339 S. W. 2d 433
    Opinion delivered October 31, 1960.

      Josh W. McHughes, for plaintiff.

      Mehaffy, Smith <& Williams, by Wm. J. Smith, for Intervenors.
   Ed. F. McFaddin, Associate Justice.

This case is an eleventh hour attempt — by original action in this Court — to prevent proposed Constitutional Amendment No. 51 being submitted to the voters at the November 1960 General Election.

The General Assembly of Arkansas at its 1959 session adopted Senate Joint Resolution No. 4, which may be found on pages 1973 et seq. of the Acts of Arkansas for the year 1959. The entire Joint Resolution need not be copied, but we set out enough of it to identify what we will later discuss:

“SENATE JOINT RESOLUTION NO. 4.
“Re It Resolved by the Senate of the State of Arkansas, and by the House of Representatives, a Majority of All Members Elected to Each House Agreeing Thereto:
“That the following is hereby proposed as an amendment to the Constitution of the State of Arkansas, and upon being submitted to the electors of the State for approval or rejection at the next general election for Representatives and Senators, if a majority of the electors voting thereon at such an election adopt such amendment, the same shall become a part of the Constitution of the State of Arkansas, to-wit:
“SECTION 1. In addition to other powers granted by constitutional or statutory authority, cities of the first and second class may issue, by and with the consent of a majority of the qualified electors of said municipality voting on the question at an election held for the purpose, bonds in sums and for the purposes approved by such majority at such election as follows: . . .”

To prevent this Senate Joint Resolution No. 4 being submitted to the voters of Arkansas at the November 1960 General Election, as proposed Constitutional Amendment No. 51, the present case was filed as an original action in this Court on October 18, 1960. It is claimed that the ballot title is defective and misleading. The Arkansas Municipal League has intervened to resist this action; and one point of resistance is that the action is improperly brought in this Court as an original proceeding. We find this point to possess merit because this proposed Constitutional Amendment was submitted by the Legislature; and the Arkansas Supreme Court has no original jurisdiction, regarding procedure on proposed constitutional amendments, except those amendments submitted under Amendment No. 7. We will elucidate on these conclusions.

I. Distinction In The Methods Of Submitting Amendments. There are two entirely different methods (ways) by which constitutional amendments may be submitted to the voters of Arkansas. One is for the Legislature to propose an amendment; and the other is for the People to initiate a proposed amendment. Article 19, Section 22 of the Arkansas Constitution is concerned with amendments submitted by the Legislature; and Amendment No. 7 to the Constitution is concerned with proposed amendments initiated by the People. In Section 1 of Amendment No. 7 this difference is recognized in these words:

“The legislative power of the people of this State shall be vested in a General Assembly, which shall consist of the Senate and House of Eepresentatives, but the people reserve to themselves the power to propose legislative measures, laws and amendments to the Constitution, and to enact or reject the same at the polls independent of the General Assembly; and also reserve the power, at their own option, to approve or reject at the polls any entire act or any item of an appropriation bill.”

In Coulter v. Dodge, 197 Ark. 812, 125 S. W. 2d 115 (decided in 1939, which was several years after Amendment No. 7 had been declared adopted), this Court recognized the distinction between constitutional amendments proposed by the Legislature and those initiated by the People; and Mr. Justice Frank G. Smith used this language in the opinion:

“Let it be remembered that we are considering now only proposals to amend the Constitution submitted by the General Assembly. An entirely different procedure is applicable to amendments proposed under the Initiative and Referendum Amendment No. 7.”

The plaintiff insists that Section 6 of Amendment No. 7 (in the heading, “Definition”), and Section 10 of Amendment No. 7 (in the heading, “Majority”), show that Amendment No. 7 was designed to include both kinds of amendments — i.e., legislatively proposed and initiated; but we find these contentions by the plaintiff to be without merit. We hold that amendments proposed by the Legislature are entirely different from those initiated under Amendment No. 7 and are governed by an entirely different procedure.

II. Jurisdiction. With the point established that Amendment No. 7 does not apply to the procedure of amendments submitted by the Legislature, we turn now to the vital question of jurisdiction. In Section 16 of Amendment No. 7 there is this language in regard to the original jurisdiction of this Court:

‘ ‘ The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes. . .

So in any case involving an amendment submitted under the procedure outlined in Amendment No. 7, the Supreme Court of Arkansas has original jurisdiction. But there is no language in Article 19 of Section 22 of the Constitution — regarding a constitutional amendment proposed by the Legislature — that gives the Arkansas Supreme Court any original jurisdiction in litigation challenging the validity of submission of such proposed amendment. On the contrary, the Constitution in Article 7 of Section 4 restricts the jurisdiction of the Arkansas Supreme Court to appellate jurisdiction. Here is the germane language:

“The Supreme Court, except in cases otherwise provided by this Constitution, shall have appellate jurisdiction only, which may be coextensive with the State, under such restrictions as may from time to time be prescribed by law. It shall have a general superintending control over all inferior courts of law and equity; and, in aid of its appellate and supervisory jurisdiction, it shall have power to issue writs of error and supersedeas, certiorari, habeas corpus, prohibition, mandamus and quo warranto, and, other remedial writs, and to hear and determine the same. . . .”

In Sauve v. Ingram, 200 Ark. 1181, 143 S. W. 2d 541, this language appears:

“Section 4 of art. 7 of the Constitution of the State of Arkansas provides, among other things, that except in cases otherwise provided, the supreme court shall have appellate jurisdiction only. This court has no authority to decide a question like this unless it has been decided by tbe lower court. In other words, we have no original jurisdiction, but only appellate jurisdiction.
“This court said, in the case of Road Imp. Dist. No. 4 of Prairie County v. Mobley, 150 Ark. 149, 233 S. W. 929: ‘The jurisdiction of this court is, under the Constitution, merely appellate and supervisory, except in the single instance of the exercise of original jurisdiction in the issuance of writ of quo warranto. Constitution of 1874, art. 7 §§ 4 and 5. The various writs authorized to be issued by this court are merely in aid of such appellate or supervisory jurisdiction. Ex parte Jackson, 45 Ark. 158; Arkansas Industrial Co. v. Neel, 48 Ark. 283, 3 S. W. 631. . .' "

A careful study of the Constitution and all of its Amendments fails to disclose any provision that gives the Arkansas Supreme Court original jurisdiction in a case like the present one, which is attacking the regularity of submission to the voters of a constitutional amendment proposed by the Legislature. Such an action should have been filed in the Chancery Court and not in the Supreme Court. So we must conclude that we cannot take original jurisdiction in this case; and such conclusion makes it improper for us to discuss any of the other issues raised.

The ease is dismissed.

       This Section reads: “Either branch of the General Assembly at a regular session thereof may propose amendments to this Constitution, and, if the same be agreed to by a majority of all members elected to each house, such proposed amendments shall be entered on the journals with the yeas and nays, and published in at least one newspaper in each county, where a newspaper is published, for six months immediately preceding the next general election for Senators and Eepresentatives, at which time the same shall be submitted to the electors of the State for approval or rejection; and if a majority of the electors voting at such election adopt such amendments the same shall become a part of this Constitution; but no more than three amendments shall be proposed or submitted at the same time. They shall be so submitted as to enable the electors to vote on each amendment separately.”

       In the dissenting opinion in Dixon v. Hall, 210 Ark. 891, 198 S. W. 2d 1002, the sections of Amendment No. 7 are numbered and identified; and such numbering is used herein.

        McAdams v. Henley, 169 Ark. 97, 273 S. W. 355, 41 A. L. R. 629, involved the procedure whereby the Legislature submitted an amendment; and that case reached this Court by appeal from the Chancery Court. On the other hand, original actions were filed in this Court in each of the following cases which involved attacks on measures initiated under Amendment No. 7, to-wit: Hope v. Hall, 229 Ark. 407, 316 S. W. 2d 199; Washburn v. Hall, 225 Ark. 868, 286 S. W. 2d 494; Ellis v. Hall, 219 Ark. 869, 245 S. W. 2d 223; Pafford v. Hall, 217 Ark. 734, 233 S. W. 2d 72; Sturdy v. Hall, 201 Ark. 38, 143 S. W. 2d 547; Hargis v. Hall, 196 Ark. 878, 120 S. W. 2d 335; Walton v. McDonald, 192 Ark. 1155, 97 S. W. 2d 81.


author: George Rose Smith, J.

text:
    Freeman v. Farmers Bank & Trust Co.
    5-2210
    339 S. W. 2d 427
    Opinion delivered October 31, 1960.

      Gardner d Steinsiek, for appellant.

      Reid d Burge and Oscar Fendler, for appellee.
   George Rose Smith, J.

The appellee, as trustee under the will of W. T. Kitchen, filed an annual accounting in the chancery court and asked that it be approved. This request was resisted by the appellant, a life beneficiary of the trust, who contended that the trustee had erred in charging certain mortgage payments and life insurance premiums against income rather than against principal. This appeal is from a decree holding that the payments were properly chargeable to income. That is the only question before us.

The testator Kitchen, at his death in 1957, was the owner of all the capital stock (except two qualifying shares) in a corporation called Kitchen Farms Company. The principal assets of the corporation consisted of about 2,500 acres of farm land which the corporation had mortgaged to a life insurance company to secure a debt of $200,000. By the terms of the mortgage the corporation was required to pay the interest upon the debt and to pay $5,000 upon the principal each year.

Kitchen’s will bequeathed all his stock in the corporation to the appellee, with directions that the stock be divided into three shares and be held upon three separate trusts. We are here concerned with the largest of the three trusts, as to which the will provided: “Share No. Three, consisting of fifty (50%) per cent of my stock or other interests in the Kitchen Farms Company shall be assigned to my Trustee to hold, in trust, on the following terms: The Trustee shall control and manage same and shall receive the income therefrom, and after paying the reasonable expenses of the trust, shall pay the income at least annually as long as she lives to Mrs. Tanna Freeman [the appellant].” Various remainders are to take effect at the death of the life tenant. Forty per cent of the corporate stock was left to the appellee upon a second trust, and the other ten per cent upon a third trust.

The will also contained this provision about a policy of life insurance: “I have been paying the premiums for several years on a $20,000.00 double indemnity life insurance policy on the life of Mr. Edward Reese, the farm manager of the Kitchen Farms Company, and of which I am the beneficiary. All of my rights, title and interest in this policy, I give, devise and bequeath to the Kitchen Farms Company and express the wish that the company continue to make payments of the premiums thereon.”

Kitchen’s widow elected to take against the will, and in settlement of her dower rights she received half the corporation’s farm land in fee and assumed half the mortgage debt. It was then decided that the trustee would effect certain tax savings by dissolving the Kitchen Farms Company and thereafter operating the farms without using a separate corporate entity. With the consent of all concerned the corporation was dissolved, after first conveying its remaining half of the farm lands to the trustee.

In the accounting now in dispute the trustee proposes to treat as current expenses both the life insurance premium payment of $757.40 and the trustee’s $2,500 share of the annual principal payment upon the mortgage. Under this method of accounting the life beneficiaries of the three trusts will receive only the net income after the two disputed items and all other current expenses have been paid. The appellant insists that the premium and mortgage installment should be paid out of the principal of the trust.

If this were a run-of-the-mill case involving nothing more than a simple allocation of current and fixed expenses the appellant’s position would be sound. As a general rule only the interest upon a mortgage debt is to be charged against the life beneficiary’s income. The corpus of the trust normally bears the burden of fixed capital charges such as principal payments upon a mortgage debt or premiums for the purchase of a life insurance policy that will eventually be paid into the corpus of the trust. Best., Trusts (2d), § 233, Comments e and f; Scott on Trusts (2d Ed.), §§ 233.2 and 233.3. This method of allocation may, however, be modified by the terms of the trust instrument. Scott, § 233.5.

Upon the particular facts of this case we are convinced that Kitchen did not intend for the trustee to employ the system of allocation now urged by the appellant. Kitchen saw fit to utilize a closely held corporation as a means of operating his farms. There is no direction in the will that the corporation be dissolved, nor any especial indication that Kitchen expected a dissolution. Bather the opposite, Kitchen left the corporate stock itself to his trustee and expressly authorized the trustee to retain the stock. Furthermore, the stock could conveniently be divided into shares of exactly 50%, 40%, and 10%, while a similar attempt to divide the land itself might have run into difficulties.

Thus it is fair to conclude that the testator contemplated the continued existence of the corporation. Hence he must have expected the life beneficiaries’ income to arise from corporate dividends. Such dividends would not have been declared until the corporation’s fixed obligations had first been paid. Fletcher on Corporations (Perm. Ed.), § 5340. If the corporation had not been dissolved the life beneficiaries would have had no claim to any corporate earnings not distributed as dividends. Best., Trusts (2d), § 236, Comment y.

We have not overlooked two New York cases holding that in a somewhat similar situation the life beneficiary should not be charged with principal payments upon a mortgage. In re Adler’s Estate, 164 Misc. 544, 299 N. Y. S. 542; In re McLaughlin’s Estate, 164 Misc. 539, 299 N. Y. S. 559. But the court’s decision in those companion cases was based upon a statute which was construed to contain an absolute prohibition against paying the mortgage debt from current income. McKinney’s Consol. Laws of N. Y., Personal Property Law, § 16. Hence the settlor’s intention was immaterial, as he was powerless to direct that the mortgage be paid out of income. We have no similar statute.

In the circumstances of this case we are convinced that Kitchen expected the corporation to continue in being and intended for the two charges now in controversy to be paid out of the farm profits before the declaration of dividends. There is no sound basis for holding that the testator’s intention should be defeated by a corporate dissolution that resulted only from a desire to save taxes for all concerned.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Robbins v. Jackson.
    5-2184
    339 S. W. 2d 417
    Opinion delivered October 31, 1960.

      Weems, Trussell and McMath, Leatherman, Woods S Young dahl, for appellant.

      McMillan & McMillan by Otis H. Turner, for appellee.
   Paul Ward, Associate Justice.

This is a Workmen’s Compensation case in which the Commission denied compensation to appellant, the widow of Buford M. Bobbins who, until his death, was a regular employee of Elwood C. Jackson, a sawmill operator. The Circuit Court approved the finding of the Commission. Jackson’s insurance carrier was made a party to the proceedings, but hereafter we will refer to Jackson as the appellee.

The Commission disallowed compensation on the ground that Bobbins was not acting within the scope of Ms employment when he was killed. Appellant seeks a reversal on the ground that the Commission failed to apply what is sometimes called the “concurrent benefit” rule. The argument is that other jurisdictions have adopted this rule in workmen’s compensation cases and that this court should do likewise.

There is very little, if any, dispute about the material facts out of which the claim arose. Jackson was the owner of two sawmills, one located near the town of Bethlehem and the other near Magnet Cove. At the time Robbins was killed the mill at the former location had not been in use for some three or four weeks, but the other mill where Robbins worked was in operation. The Bethlehem mill had been engaged in cutting timber, under contract, on land belonging to the International Paper Company. Under tMs contract appellee was obligated to cut the unmerchantable hardwood trees that were within 60 feet of a utility line, fence, or building, or within 100 feet of a public road. The remainder of such timber was to be “girdled”.

On Friday, October 10, 1958, after appellee and Ms mill crew (including Robbins) had completed a usual day’s work at the Magnet Cove mill, appellee asked the crew to meet him at the Bethlehem mill on the following morning for the purpose of loading and moving that mill to his home for storage. The process of moving the mill began at about 7:00 a.m. and was completed about 10:30 a.m. Robbins, who usually was a sawyer, helped in the moving and was paid for a full day’s work and all employees were dismissed for the day. Several trees at the Bethlehem site had not at that time been “girdled” or cut as called for in the contract.

While at the Bethlehem site and while in the moving-process Robbins pointed to four or five unmerchantable trees which had not been “girdled” (not trees that were to be cut) and stated to appellee that he might come back and cut some firewood for his own use. Accordingly, Robbins did return alone, after leaving appellee’s house, to cut the trees with his own saw. In the process of cutting one of the trees it fell on him and killed him.

Appellee admits that he gave Bobbins permission to cut the trees, and also stated that “the cutting of unmerchantable hardwood on the International Paper Company land” was for his own benefit. Likewise, appellee stated that “the removal of this unwanted, unmerchantable hardwood timber from the International Paper Company land (was) in the furtherance of (his) business and (Ms) obligation under the timber contract.” Appellee also stated that the cutting of these trees by Bobbins was of mutual benefit to him and Bobbins, and that all of the unmerchantable trees had to be “girdled”. Later all these trees were “girdled” but none of them were cut down.

Appellant apparently concedes that, under the former decisions of tMs court, the findings of the Commission should be sustained, but it is ably and earnestly insisted that under the “concurrent benefit” rule the claim is compensable, that such rule has been adopted in other jurisdictions, and that this court should also adopt that rule.

Insofar as it applies to this case, Ark. Stats. § 81-1305, provides that every employer shall provide compensation for a death “arising out of and in the course of employment.” Before appellant can recover it must appear Bobbins’ death arose (a) out of Ms employment and also (b) in the course of his employment. Pearson v. Faulkner Radio Service Company, 220 Ark. 368, 247 S. W. 2d 964, and, American Casualty Company v. Jones, 224 Ark. 731, 276 S. W. 2d 41.

To fully understand appellant’s argument in regard to the “concurrent benefit” rule and its application to a case of this nature, we deem it appropriate to examine briefly some of the authorities from other jurisdictions which are relied on to support the rule.

Wamhoff v. Wagner Electric Corporation, 1945, 354 Mo. 711, 190 S. W. 2d 915, 161 A. L. R. 1454. Appellant, as an employee of appellee, was engaged in electroplating metal parts. While so engaged he also undertook to plate a metal toy for his son and was injured. In affirming an award for compensation the court, among other things approved this quotation from 71 C. J., p. 675, § 420:

“An injury suffered by an employee while performing an act for the mutual benefit of the employer and the employee is usually compensable, for when some advantage to the employer results from the employee’s conduct, his act cannot be regarded as purely personal and wholly unrelated to the employment. Accordingly an injury resulting from such an act arises out of and in the course of the employment; and this rule is applicable even though the advantage to the employer is slight.”

Phoenix Indemnity Co. v. Industrial Accident Commission, 1948, 31 Cal. 2d 856, 193 P. 2d 745. Marion Robert Hamilton was an employee of the Weggers Airplane Seeding and Dusting Company and was engaged in flying planes in seeding and dusting services. In addition the company offered instructions in aviation for a fee with Hamilton as the flight instructor. On one occasion he took his 12 year old daughter for a free ride with the company’s consent and both were killed. There was testimony to the effect that the daughter expected to take up flying sometime later. In approving an award for the widow the court approved this statement from a cited authority:

“The true rule * * * is that the injury is compensable if received while the employee is doing those reasonable things which his contract of employment expressly or impliedly authorizes him to do.”

Kimberly-Clark Co. v. Industrial Comm. et al., 1925, 187 Wis. 53, 203 N. W. 737. Dominie Darne, an employee of appellant, was engaged in keeping machinery in repair, necessitating the use of many tools some of which, if not all, belonged to him. While on the regular job he undertook to make a box in which to keep the tools for his convenience, and was injured. Again the court affirmed an award and said: “the commission could reasonably draw the conclusion that the service the employee performed was within the scope of and incidental to his employment, because its performance inured to the benefit of the employer.” The court also said there was a “concurrent benefit.”

Tallent v. M. C. Lyle & Son, 1948, 187 Tenn. 482, 216 S. W. 2d 7. Tallent, as an employee of appellee, was supposed (according to the findings of the trial court) to carry fellow employees to and from work in his car. The car got out of order and while Tallent was trying to fix it his index finger was injured. In affirming an award for the injury the court, among other things said: “Acts for the employer’s benefit are usually held to arise out of the employment, if expressly, impliedly or reasonably authorized.” The court also approved this statement: “. . . where the servant is combining his own business with that of his master, or attending to both at substantially the same time, no nice inquiry will be made as to which business the servant was actually engaged in when a third person was injured.”

Appellant quotes from Schneider’s work on Workmen’s Compensation Law, Vol. 6, page 59:

“Two or more causes may operate to cause the disability of an employee. They are spoken of as “concurrent”, “contributing”, “exciting”, and “superinducing” causes. If all contribute to the ultimate result, they are all proximate causes of that result.”

Appellant cites additional decisions from other states in support of the “concurrent benefit” rule. We have carefully examined these and find that they are merely cumulative to those heretofore mentioned.

We express at this time no dissatisfaction with the so-called “concurrent benefit” rule as it has been applied in the cases above referred to and relied on by appellant. We are not convinced however that its application calls for a reversal of this case. As we view the rule it merely calls for a liberal construction of the requirements of the statute that requires the injury (resulting in death) must “arise out of and in the course of employment. ’ ’ In this case the Commission, after reviewing all the facts, found that Robbins, at the time he was killed, “was not acting within the scope of his employment.” This finding of the Commission must be affirmed if it is supported by substantial evidence. Wren v. D. F. Jones Construction Company, 210 Ark. 40, 194 S. W. 2d 896; White v. First Electric Cooperative Corp., 230 Ark. 925, 327 S. W. 2d 720. On this point, it cannot reasonably be contended that there is any lack of substantial evidence to support the findings of the Commission. It found, and we must agree, that Robbins “ended his day’s work at approximately 10:00 to 10:30 a.m. on the morning of the day on which he met his death. At that time his duties of employment ended for the day. Nothing further was requested, expected, or needed of him. ‘ ‘ The deceased’s injury (death) did not occur while he was performing the duties of his employment; there was no connection between the conditions under which his work was required to be performed and his injury nor can the injury be traced to the employment as a contributing proximate cause.” “The deceased’s sole purpose in going upon the premises of the mill site was to cut stove wood for himself.” To the above it may be added it appears from testimony that appellee was not interested in having this particular tree (or trees) cut down — he was only interested in having the tree (or trees) “girdled”. Had the deceased not attempted to cut the tree obviously he would not have been killed.

Under numerous decisions of this court the above state of facts would call for an affirmance of this case. Impliedly, at least, appellant concedes the validity of the above statement because reliance on the “concurrent benefit” rule is invoked for a reversal. The essence of appellant’s contention appears to us to be that the “rule” is applicable here and therefore calls for a reversal because the act of cutting the tree by Robbins was of some small, but doubtful, benefit to Jackson. We are unable to agree with this contention.

As before indicated we do not take the position that the “rule” is not sound when properly applied to a given state of facts. Our position is that such “rule” has no application to the facts of this case, because it has been shown and found by the Commission, that Bobbins was not in the course of his employment when he was killed.

In all of the cases cited by appellant the courts relied not only on some benefit to the employer but also on other facts and circumstances which placed the claimant within the scope of employment, and in each case the injury occurred during the time of employment. Those cases are distinguishable from the case under consideration on the facts.

In the Wamhoff case, the claimant was injured during regular working hours and the court found that the employer not only “should have anticipated the activities of respondent and other employees in doing private work, but that it encouraged such activities.” In the Phoenix case, the employee was killed during work hours, and he was employed in an activity approved as a part of his employment. The same thing was true in the Kimberly-Clark case and in the Tallent case.

It appears to us that, to bring the facts of this case on a parallel with the facts in the above mentioned case, the facts here would have to be altered so as to show that Bobbins was engaged in cutting"or “girdling” trees as a part of his usual employment and at the time and place of such employment, and that he was killed while cutting a tree for his own private use for firewood. Some of the cited cases seem to also require a further showing that, in so doing, Bobbins must be engaged in an activity recognized by Jackson as a customary procedure. Under the above supposed facts we can understand how an application of the “concurrent benefit” rule might be applicable and helpful, but not so under the facts and circumstances of this case. The “rule” cannot, we hold, be applied to circumvent the necessity of a claimant first showing that his injury arose out of and in the course of employment.

It therefore follows that the judgment of the trial court (affirming the Commission) must be, and it is hereby, affirmed.

Affirmed.

Johnson, J., dissents.


text:
    Bourque v. Edwards.
    5-2226
    339 S. W. 2d 436
    Opinion delivered October 31, 1960.

      William 8. Walker, for appellant.

      J. Nelson Truitt, for appellees.
   Paul Ward, Associate Justice.

In this case, wherein appellants purchased a farm from appellees, the disputed question is whether a butane gas tank was included with the property as contended by appellants. „ The issue was joined in a replevin suit in the Circuit Court brought by appellees to get possession of the tank. The trial judge, sitting as a jury, found in favor of appellees, ordering the tank delivered to appellees and awarding damages against appellants in the amount of $4.00. Appellants now prosecute this appeal for reversal.

Except for the testimony later to be discussed the facts are not in dispute.

Appellees listed for sale their 76 acre farm with Robert W. Read, a real estate agent associated with the Strout Realty Company. On September 12, 1959, Read wrote a letter to appellants who lived in Houston, Texas. This letter, which described the farm relative to location, buildings, tillable soil, price and terms, contained this sentence: “Electricity and butane in.” The result was that appellants and appellees entered into a Sales Agreement on September 22, 1959, and a down payment of $1300 was made by appellants without them having seen the property. Among other things, the agreement provided that the deed to appellants would be delivered on or before the 15th day of October, 1959, and that possession would be given on October 1, 1959. Appellants took possession of the property on October 1, 1959, and soon thereafter this controversy arose over the ownership and possession of the tank. The 250 gallon butane tank was located on top of the ground several feet from the house and was connected thereto by a metal pipe. The principal contentions of appellants are that the appellees are bound by the acts and representations of their real estate agent, Mr. Read; that having acted upon the written representation of said agent appellees cannot be heard to deny or to vary those representations, and; that the trial court erred in interpreting the law on what constitutes fixtures, as between vendor and vendee. On the other hand, appellees contend that on the first day appellants took possession and one day before the deed was signed it was. made known to appellants that the butane tank did not go with the property and that appellants agreed to this and tacitly consented by their silence therein, and that therefore they are estopped now to contend otherwise. The testimony in this connection is in conflict.

Mrs. Edwards, one of the appellees, stated that she met appellants at the farm on October 1st in the presence of Mr. Read and Mr. and Mrs. Houston; that she told appellants the butane tank didn’t go with the place; that later that day she saw Mrs. Bourque and told her again that the tank didn’t go with the place; that Mr. Read said he- thought the tank might have “went,” hut that she told him no, and; that Mr. and Mrs. Bourque did not say anything. She also stated that early that day appellants didn’t say anything when Mr. Edwards told them the tank didn’t go, and at that time no deed had been executed. She also stated that she refused to sign the deed until she heard Mr. Read say the tank didn’t go. The deed was signed the following day. On cross examination she further testified that Mr. Read stated that he knew the tank didn’t go; that he thought the tank was listed but he found out later it was not. Harley Houston testified in substance: He was present on the occasion mentioned by Mrs. Edwards; they talked about the tank and Mrs. Edwards said the tank didn’t go with the place but didn’t hear Mr. Bourque say anything about it. Mrs. Harley Houston testified that she was present when Mrs. Edwards told them the tank didn’t go with the place and that she didn’t hear the appellant say anything. Mr. Read testified that he was present at the meeting described by Mrs. Edwards and that he didn’t know whether Mr. and Mrs. Houston were there or not, but he did hear Mrs. Edwards say that the tank didn’t go; that the deal was consummated in his office later when Mr. and Mrs. Edwards signed the deeds, and they said at that time the tank didn’t go. On cross examination he stated that nothing was said about the tank when the place was listed for sale but up until the above conversation took place he assumed that the tank did go with the place.

Mr. Bourque testified that he also relied upon the representations made in the letter of September 12th and that he never did agree that the tank didn’t go. He further stated that Mr. Edwards did not tell them that the tank didn’t go on the morning of the 2nd — that the tank was not mentioned that morning — and that he didn’t recall it being mentioned in Mr. Read’s office that evening. He further stated that he didn’t know there was a tank until he saw it on the morning of October 2nd. Mrs. Bourque stated that they relied upon the representations made by the agent’s letter dated September 12th.

John Poyner, the Justice of the Peace before whom this case was first tried, stated that at the hearing before him Mr. Bourque stated that while they were in that office and before the deed was signed it was stated to him that the tank didn’t go.

Without entering upon a legal discussion of the circumstances under which an attachment to a house becomes real estate, we have concluded that there is substantial evidence to sustain the findings of the trial judge “sitting as a jury” to the effect that it was not the intention of the parties at the time the deed was executed to include the butane tank. It was the province of the judge to evaluate the testimony and his findings will not be disturbed as they are supported by substantial evidence. In this case we think there was such evidence.

The objection might be made, though it is not specifically made by appellants, that parol evidence was not admissible to vary a written instrument — the deed in this case. We think, however, that appellants are in no position here to benefit by such rule for several reasons. The evidence tending to show the tank was not included in the transfer was introduced without objection, and this court has said many times, in effect, that such evidence cannot be challenged for the first time on appeal. See: Gage v. Melton, 1 Ark. 224; Heaslet v. Spratlin, 54 Ark. 185, 15 S. W. 461; Lisko v. Uhren, 130 Ark. 111, 196 S. W. 816; Missouri Pacific Transportation Co. v. Moody, 199 Ark. 483, 134 S. W. 2d 868; and Tucker v. Ford, 201 Ark. 680, 146 S. W. 2d 542.

Also the facts and circumstances of this case are such as to indicate the butane tank was a proper subject for a side agreement. In the first place the letter relied on by appellants stated that “butane” was “in” — nothing was said about a tank — and the parties themselves appear to have treated the tank as personal property since it was separated from the house. Under such circumstances we think the holding by this court in Magee v. Robinson, 218 Ark. 54, 234 S. W. 2d 27, supports the conclusion we have already reached. There the court, in discussing the admissibility of parol evidence to vary a written instrument in connection with a “side agreement,” the court approved this statement:

‘ ‘ Though this assumption in most eases conforms to the facts, and the certainty attained by making the rule a general one affords grounds for its existence, there are cases where it is so natural to make a separate agreement, frequently oral, in regard to the same subject-matter, that the Parol Evidence Buie does not deny effect to the collateral agreement. This situation is especially likely to arise when the writing is of a formal character and does not so readily lend itself to the inclusion of the whole agreement as a writing which is not limited by law or custom to a particular form. . . .”

It follows from what we have said that the judgment of the trial court must be, and it is hereby, affirmed.

Affirmed.