author: Sam Robinson, Associate Justice. Ed F. McFaddin, Associate Justice

text:
    McCrosky v. State.
    5-2790
    361 S. W. 2d 266
    Opinion delivered October 29, 1962.

      Skillman & Webb, for appellant.

      Frank Holt, Attorney General, by Bussell Morton, Asst. Attorney Gen., for appellee.
   Sam Robinson, Associate Justice.

On the 6th day of January, 1961, appellant, Mary Lou Henson, was charged by information filed by the prosecuting attorney, with the crime of murder in the first degree. On the 16th day of April, 1961, the defendant, Henson, was indicted by the Craighead County Grand Jury for murder in the second degree for the same alleged killing. The defendant was released on $5,000.00 bail-bond made by the United Bonding Insurance Company and executed by D. F. McCrosky, attorney in fact.

The Craighead Circuit Court convened on November 13, 1961, the Henson case being set for trial on November 14. The defendant was not present on the 13th, nor was she present on the 14th when the case was called, a jury panel being present. On the 15th, the defendant having not appeared, the prosecuting attorney moved for a forfeiture of the bond. The Court granted the motion and issued a summons directed to the defendant, Henson, and her bondsman, ordering them to appear within twenty days and show cause why judgment in the sum of $5,000.00 should not be rendered against them. Appellants filed an answer and the matter was set for trial. After hearing-all the evidence, the Court set aside half of the $5,000.00 forfeiture and rendered judgment against defendant and her bondsman in the sum of $2,500.00. Appellants have appealed from the $2,500.00 judgment, contending- that there was an abuse of discretion by the trial court in failing to set aside a larger portion of the forfeiture.

Ark. Stats. 43-724 provides: “If, before the final adjournment of the Court, the defendant appears and satisfactorily excuses the failure, [to appear in court], the court may discharge the forfeiture.” Ark. Stats. 43-729 provides: “If, before judgment is entered against the bail, the defendant is surrendered or arrested, the court may, at its discretion, remit the whole or part of the sum specified in the bail-bond. ’ ’

There does not appear to be any substantial controversy about the facts. McCrosky, attorney in fact for the bonding company, executed the bond. Mrs. Henson, the defendant, was living in Jackson County, near Newport; McCrosky kept in touch with her attorney and thought he knew, where she was and that she would appear in court at the proper time. He had no reason whatever to believe otherwise.

On Saturday, November 11, 1961, Mrs. Henson’s attorney went to Jackson County to see his client and learned from her mother that she had left a few hours earlier for Chicago; but the attorney still thought she would be in court Monday. "When she was not there Monday, and was not there on Tuesday, the attorney notified her bondsman and gave him the information about the defendant having gone to Chicago.

Mr. McCrosky immediately engaged a private detective in Memphis and sent him to Chicago in an attempt to locate the defendant and have her brought to court. On the 17th, the detective found the place where the defendant had stopped in Chicago, but learned that she had left early that morning to return to Arkansas. The detective gave this information to McCrosky by long distance telephone. McCrosky then engaged the services of Mr. Jake Winning-ham, ex-sheriff of Jackson County, to locate the defendant just as soon as she returned to Jackson County. Mr. Winningham got in touch with Mr. Leonard Woodman, the present sheriff, and in a short time they took Mrs. Henson into custody and put her in the Jackson County Jail. Later that same day, the 17th, McCrosky and Mrs. Henson’s attorney went to Newport and the sheriff released her to her attorney. The lawyer and McCrosky then took her to Jonesboro where she was placed in the Craighead County Jail. This was on the 17th, just two days after the case was to have been tried, and the court was still in session. It might be added parenthetically, that the following April the defendant was tried and acquitted.

It appears that Mrs. Henson’s husband was working-in Chicago and that she went there in an effort to get money to pay the balance of her attorneys fee. Her husband received his paycheck Thursday evening and they left early Friday morning, arriving in Newport, Arkansas the same day. The evidence is convincing that she did not fail to appear in court because she intended to “jump bond”.

Just as soon as the bondsman learned that the defendant was not in court when she should have been, he did everything in his power to produce her before the court, and did cause her to be brought before the court just three days after court convened and only two days after the case was set for trial. It is undisputed that the bondsman spent $912.20 in producing the defendant in court, and this sum does not include the fee for the detective sent from Memphis to Chicago. It is shown that the total expense to the county caused by the defendant’s failure to appear at the proper time, was not more than $780.00, which includes $1.50 per day for the 170 days she was in jail until she was tried. This amount, coupled with the $912.20 and the detective fee, will total $2,000.00 or more that it will cost appellants by reason of the defendant failing to appear in court when her case was called.

In the circumstances, we do not believe the defendant and her bondsman should be further penalized by causing them to pay a greater sum than it takes to reimburse the county for the loss sustained by reason of the defendant’s absence. In Central Casualty Co. v. State, 233 Ark. 602, 346 S. W. 2d 193, a similar case, this Court said: “The court’s discretion is not arbitrary; it should be fairly exercised upon the facts in the particular case.”

Accordingly, the judgment is modified by reducing it to $780.00, and as modified it is affirmed. Costs to be assessed against appellants. It is so ordered.

Ed F. McFaddin, Associate Justice

(Dissenting). In the case of Central Casualty Co. v. State, 233 Ark. 602, 346 S. W. 2d 193 (decided May 15, 1961) this Court modified a Circuit Court judgment involving a bond forfeiture. I dissented in that case and stated my views in a dissenting opinion. I dissent in the present case, and my views in this case are exactly as stated in my dissent in the Central Casualty Company case, supra.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    Comer Lbr. & Supply Co. v. Woodward.
    5-2788
    361 S. W. 2d 259
    Opinion delivered October 29, 1962.

      Bernard Whetstone, for appellant.

      Keith, Clegg & Eckert, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order sustaining a demurrer to appellant’s complaint and dismissing the complaint as failing to state a cause of action. Appellant, Comer Lumber and Supply Company, a supplier of oil well drilling materials, sued appellees, W. A. Gr. Woodward and others, joint owners of the working interest in an oil and gas lease, for supplies furnished to drill a well on the leased property.

Appellees demurred to appellant’s complaint, and the trial court sustained the demurrer and offered appellant additional time to amend its complaint. Appellant elected to stand on its original complaint, and the complaint was therefore dismissed. From the order of dismissal comes this appeal.

For reversal appellant urges simply that the trial court erred in sustaining the demurrer and in dismissing the complaint.

Omitting the formal parts, the complaint reads as follows:

‘ ‘ 1. Plaintiff is a domestic corporation with its principal place of business in the City of El Dorado, where it is, and was at all times herein mentioned, engaged in the lumber and building supply business, including material and supplies for the drilling of oil and gas wells, and allied endeavors.
‘ ‘ 2. Defendants are individual citizens and residents of Columbia County.
“3. At all times herein mentioned defendants were the joint owners of the working interest in an oil and gas lease covering the SE% of the SE*4 of Section 5, Township 20 South, Range 26 West, in Lafayette County . . .
“4. Under the terms of said leases (of which these defendants were assignees), and as owners of the working interest in said leases, defendants were obligated to drill a certain well on the above described property.
“5. Pursuant to this obligation, and in compliance with it, the defendants engaged one Beverly Johnson, who at the time was operating under the trade name of The Magnolia Company, as its agent to drill said well.
“6. Thereafter, said Beverly Johnson engaged one A. A. Morgan as a subagent to handle the actual drilling. This was shortly before February 6, 1960.
“7. The engaging of said Beverly Johnson and his, in turn, engaging A. A. Morgan, as aforesaid, was well known and with the active consent of all the defendants.
‘ ‘ 8. Pursuant to this arrangement, said A. A. Morgan ordered certain supplies for the drilling of said well over a period beginning February 8, 1960, to March 31, 1960, which supplies were delivered by plaintiff and used by said A. A. Morgan in the drilling of the well identified as State-Moore No. 1, 330 feet south and 380 feet west of the northeast corner of the SE^ of the SE*4 of Section 5, Township 20 South, Range 26 West in Lafayette County. Itemized statement of said supplies in the form of duplicate invoices and ledger statement, showing a balance due in the amount of $4,774.58, duly verified by H. H. Causey, president and general manager of the Comer Lumber and Supply Company, is attached hereto marked Exhibit A, and made a part of this complaint.
“9. Said balance is still due and owing this plaintiff in spite of due and repeated demands therefor.
“Wherefore, premises considered, plaintiff . . . prays judgment against the defendants, . . ., jointly and severally, in the amount of $4,774.58, with interest . . . plus costs, and for all other proper relief. ’ ’

To sustain Ms contention, appellant relies heavily upon Superior Oil Company v. Etheridge, 219 Ark. 289, 242 S. W. 2d 718. In that case the court held that “the lease of Superior was properly subjected to the lien of Etheridge”. The Superior Oil Co. case has no bearing on the instant case. The case at bar is not a lien case — it must stand or fall on the theory of agency.

The appellees contend earnestly that the allegations in the complaint, to withstand demurrer, should allege that Beverly Johnson had been appointed as agent; that Beverly Johnson had been given authority to appoint a subagent; that A. A. Morgan had been appointed a sub-agent and that said authority given to Beverly Johnson, and, in turn, delegated to A. A. Morgan, permitted Morgan to incur debts in behalf of the appellees; that any language of such tenor might be sufficient, but that, instead, the complaint only contains, vague, innocuous and legally meaningless language.

We think the allegations are reasonably understandable. The complaint alleges that appellees engaged an agent, who in turn engaged a subagent, with appellees’ knowledge and consent. [See paragraphs 5, 6, and 7, of the complaint, supra..] It will also be observed that in paragraph 8 of the complaint, appellant alleges that the supplies were used in drilling a well on the same property that it earlier alleged was leased to appellees [paragraph 3, complaint, supra].

The allegations of agency might well have contained a statement that the agency was authorized, but the lack of such a statement does not render the complaint completely vulnerable. Appellees filed no motion to make the complaint more definite and certain. The long-standing rule of this court is that in testing the sufficiency of a complaint on general demurrer, the court indulges every reasonable intendment in its favor, and the demurrer should be overruled if the facts stated, together with every reasonable inference arising therefrom, constitute a cause of action. Neal v. Parker, 200 Ark. 10, 139 S. W. 2d 41. It is generally held that where agency is averred, it may be done without describing the authority of the agent, in the absence of a motion to make more definite and certain. 2 C. J. 905, § 611; 3 C. J.S., Agency, § 305, p. 238; Kjerschow v. Daggs, 24 Ariz. 207, 207 P. 1089; Pacific Mut. Life Ins. Co. v. Barton, 5th Cir., 50 P. 2d 362; Rule v. Mitchell, 173 Kan. 803, 252 P. 2d 924. The question of authority of an agent is one of evidence, not of pleading. This rule is well stated in the holding in Rogers v. Beiderwell, 175 Kan. 223, 262 P. 2d 814, 45 A.L.R. 2d 578, as follows:

“Where a petition alleges that another acted as agent of the defendant, such general allegation is ordinarily sufficient without averring that the agent had authority to act in the premises, in the absence of a motion to make more definite and certain, the question of the agent’s authority being one of evidence, not of pleading. ’ ’

Applying this rule to the facts in the case at bar, we find that the demurrer was improperly sustained and the order of dismissal is therefore reversed.


author: Neill Bohlinger, Associate Justice.

text:
    Loetscher v. Baseline Sewer Imp. Dist. No. 201
    5-2898
    361 S. W. 2d 257
    Opinion delivered October 29, 1962.

      James L. Sloan, for appellant.

      William M. Dabbs, Jr. and Bose, Meek, House, Barron, Nash é Williamson, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant is the owner of real property within the boundary of the Baseline Sewer Improvement District No. 201, Pulaski County, Arkansas which is a suburban improvement district organized under Ark. Stats. 20-701 et seq.

The appellees filed in the office of the County Clerk in Pulaski County a petition for the formation of such district which petition is in proper form and was properly filed and, acting under the statute, the County Clerk of Pulaski County published in a daily newspaper on January 5,1961, a notice of the public hearing on said petition to be held in Pulaski County Court on January 19, 1961. This notice was published the second time on January 13,1961, or eight (8) days after the first publication and six (6) days before the date of the public hearing.

The appellant has brought this action in the Pulaski Chancery Court alleging that the notice of the hearing was not “published once a week for two weeks” — within the meaning of the statute. The publication of the notice is for the purpose of advising the people having property within the district of the date of hearing on the petition for the formation of the district in order that such property owners may attend and protect their rights. "We have many times held that the publication of the notice is jurisdictional. American State Bank of Charleston v. Street Improvement Dist. No. 3 of Charleston, 197 Ark. 986, 125 S.W. 2d 796. The same holding has been applied to the matter of tax sales and the sole issue that confronts us here is whether the publication of the notice of petition and hearing complies with the requirements of the statute which is Ark. Stats. 20-702:

“Said notice shall be published once a week for tivo [5] weeks in some newspaper published and having a Iona fide circulation in the county where the lands affected are situated. This notice may be in the following form: * # *” [Emphasis added]

Approaching that statute from a common sense angle it is first apparent that the property owner is assured of two (2) weeks notice. While it is true, as appellees point out, that one theory of a week might be based on the biblical or calendar week under which the term “week” would commence on Sunday and end on Saturday, the statutory week has been the theory under which our conclusions on the matter of notice have been universally bottomed. In Raum v. Leach, 53 Minn. 84, 54 N.W. 1038, it was held that a notice to be published for “two (2) weeks” requires an interval of fourteen (14) days between the first publication and the events- stated in such notice. We therefore first ascertain if fourteen (14) days did elapse between the first notice and the date of the hearing.

It is conceded that the first notice was published oil January 5, 1961. January 5, 1961, was on Thursday and counting seven (7) days from and including the fifth would close the first week with the eleventh. The second hebdomad includes the twelfth through the eighteenth. Since the notice was in publication on the fifth advising the property owners of the proposed hearing, the fifth cannot be eliminated from consideration. Therefore an elementary calculation of the days that intervened between the date of the first publication and the date of the hearing reflects that fourteen (14) days elapsed. See also Ark. Stats. 27-130.

Many excellent citations with which counsel have favored us deal for the most part with tax sales where it was shown that the notice had not run for the full statutory time. Since we find that in this case the notice did run for the full statutory period, we do not lengthen this opinion with the citations which have been given us in that respect.

The second contention of appellant is that the second publication should have been published seven (7) calendar days apart from the preceding publication to be at least seven (7) days prior to said hearing. In the case of Byrne v. Less, 92 Ark. 211, 122 S.W. 635, we had a case in which a second notice under the statute was published on- the fifteenth day rather than on one of the days between the 8th and 14th days inclusive, and it was there held that the once a week, or weekly for two weeks, requirement had not been complied with.

Not so in the instant case. The first notice, as has been stated, was published on the fifth. The publication of that notice sufficed for a publication in the week from and including the fifth through the eleventh. The second weekly period in which a notice must be published ran from and included the 12th through the 18th. The notice was published on the 13th which is one of the days within the second week. The statute says the notice shall be published once a week for two weeks. The use of the word “for” in this connection means “during”. It would not have sufficed under this statute if the second notice had been published, for example, on the tenth and not thereafter for the tenth would be one of the days within the first week.

There is nothing in the statute that connotes an intention by the Legislature that any specific time is to be observed within that second week. Neither the designation of the lapse of a specific time between the last publication and the date of hearing, nor the phrase ‘ ‘ shall be published............ days before the day fixed for the hearing” are strangers to the Legislature, which body employed this expression in the formation of municipal improvement districts:

“* * * it shall be the duty of the City or Town Clerk or Becorder to give notice that such petition will be heard at a meeting of the City or Town Council named in the notice, which will be held more than fifteen [15] days after the filing of such petition. Such notice shall be published once a week for two [2] weeks, the last insertion to be not less than seven [7] days before the date fixed for the hearing. ’ ’ [Ark. Stats. 20-104]

Therefore, it appears clear that had the Legislature intended a lapse of time between the second notice and the hearing it would have so stated. That was its perogative. It is not ours. A clear interpretation in this connection is found in Koch v. Mack International Motor Truck Corp., 201 Md. 562, 95 A. 2d 105, quoting Merrill on Notice, § 668.

‘ ‘ Questions arise concerning specifications that publication shall be ‘for’ a certain number of weeks before an event. A week in this sense means seven days and the prescription can be satisfied only by publication starting the specified multiple of seven days prior to the effective date. [Fisher v. Booher, 269 Ky. 501, 107 S.W. 2d 307] However, if the several publications are to be once a week for a specified number of weeks, the spacing need — not be exactly seven days apart, provided there is one appearance in each period of seven days and the proper number of hebdomads intervenes — between the initial publication and the effective date.”

We therefore find that the statutory notice was published for the full time required by the statute and that the publication on the 13th of January, 1961, of the second notice falls within the statute. The chancellor so found and the decree in this case is accordingly affirmed.

George Rose Smith, J., not participating.


author: Carleton Harris, Chief Justice.

text:
    Mode v. Barnett, Adm ’x
    5-2786
    361 S. W. 2d 525
    Opinion delivered November 5, 1962.

      Hardin, Barton & Hardin, for appellant.

      Gordon & Gordon, Howell, Price & Worsham, for appellee.
   Carleton Harris, Chief Justice.

This litigation stems from the killing of D. L. Russell by Lee Mode, appellant herein. Suit was instituted by Clida Bussell Barnett, Administratrix in Succession of the estate of D. L. Bussell, and as Guardian and next friend of Jerry Bussell, Don Bussell, Ferrell Bussell and Darrell Bus-sell, minor sons of the deceased. Count I of the complaint alleged that Bussell and his wife, Mildred Sellars Bus-sell, lived happily together as man and wife for more than 15 years until the fall of 1957, at which time appellant, Lee Mode, commenced making clandestine visits to Mrs. Bussell, showering his affections and attentions upon her in an effort to entice her favor; that Mode did willfully and wickedly steal and alienate her affections, and about the 18th day of April, 1958, lured her away from her children and her husband, causing her to desert and abandon the children and to separate from their father; that since said date, Mode and Mrs. Bussell had been living together, and that the children had been injured and damaged by being deprived of the comfort, companionship, love, affection and society of their mother. Actual damages were sought on this count in the sum of $100,000, together with punitive damages in the sum of $50,000.

Under Count II, it was alleged that Mode, after learning that D. L. Bussell was attempting to effect a reconciliation with his wife, and after deliberation and premeditation, killed Bussell on October 13, 1958, by shooting the latter on the streets of Conway; that the children had been deprived of their father’s support, contributions, and future earnings, and as a result of his wrongful death, had suffered extensive grief, mental pain and anguish; that they had been deprived of the companionship, love and affection of their father and had been damaged in the sum of $100,000. $100,000 in damages was sought as actual damages to the estate, together with $50,000 punitive damages. The court sustained a motion to quash the original service, and after numerous attempts, valid service was finally obtained on Mode on October 14, 1960. On the following November 1, Mode filed an answer himself, stating: “I deny every statement (sic) and every thing the plaintiff says and deny that they are entitled to anything from me and ask that the court dismiss their suit and deny them anything.” The case was set for trial for January 3, 1962, and the clerk of the court notified appellant of this date by sending him a registered letter with return receipt requested. The return receipt was signed by Mode on December 16, 1961. On the date set for trial, appellant did not appear. Counsel for appellee requested that the court try the case without a jury. The request was granted and the court, sitting as a jury, proceeded to hear the testimony. After the conclusion of the evidence, judgment was entered against appellant in the total amount of $90,102.75, broken down as follows:

For disruption of the family ties, depriving the children of the parental care, affection, and instruction of their mother:

1. Jerry Russell $2,000.00

2. Don Russell 3,000.00

3. Ferrell Russell 3.000. 00

4. Darrell Russell 3.000. 00

For loss of their father’s contribution and support:

1. Jerry Russell $2,181.40

2. Don Russell 3,116.28

3. Ferrell Russell 4.051.16

4. Darrell Russell 4.051.16

For the use and benefit of the children by reason of the loss of decedent’s parental care, instruction, love and affection:

1. Jerry Russell $2,500.00

2. Don Russell 5.000. 00

3. Ferrell Russell 5.000. 00

4. Darrell Russell 5.000. 00

For the use and benefit of the children as damages for their grief and mental anguish:

1. Jerry Bussell None

2. Don Bussell $7,500.00

3. Ferrell Bussell 7,500.00

4. Darrell Bussell 7,500.00

Under Count II of the complaint, the court granted punitive damages in the sum of $25,000 for the use and benefit of the four children. From the judgment so entered, appellant brings this appeal. For reversal, four points are relied upon, as follows:

I.

Section 2 of Act 460 of 1949 (Ark. Stats. Ann. 27-1743.2) is unconstitutional in that it denies a defendant his right to a jury trial and the trial court therefore erred in failing to empanel a jury to hear the evidence and fix the damages, if any, in this case.

II.

The trial court erred in granting appellee judgment on Point One of the complaint for the alleged “disruption of family ties” because minor children cannot recover for such alleged wrongs.

III.

The court erred in allowing the plaintiff’s request for admissions to be introduced in evidence.

IV.

The damages awarded by the trial court are excessive.

We proceed to a discussion of each point in the order listed.

I.

Ark. Stats. Ann. 27-1743.2 provides as follows:

“Hereafter, in all tort cases where the defendant answers in the time and manner provided by law, but fails to appear and defend said cause in the time and manner provided by law, said failure to appear and defend in the time and manner provided by law shall constitute a waiver of the right of a trial by jury on the issue of damages.”

Appellant vigorously asserts that this statute is unconstitutional because (he contends) it denies a defendant his right to a jury trial, granted by Amendment No. 16 to the Constitution of Arkansas. Amendment No. 16, Article 2, § 7 Amended, reads as follows:

“The right of trial by jury shall remain inviolate, and shall extend to all cases at law, without regard to the amount in controversy; but a jury trial may be waived by the parties in all cases in the manner prescribed by law; * * *”

We do not agree with this contention. Obviously, those who drafted the constitutional amendment had the purpose and intention to invest in the Legislature the authority to determine what actions on the part of a litigant constituted a waiver of the right of trial by jury; we say “obviously” because there could have been no other purpose in the provision, “but a jury trial may be waived by the parties in all cases in the manner prescribed by law.” This provision, of course, includes prospective laws. The General Assembly is the lawmaking power, and it proceeded, in passing Act 460 of 1949 [of which 27-1743.2 is a part], to prescribe and enumerate various acts by which a defendant waives a trial by jury. While it is no part of our duty to pass upon the wisdom of legislation, we might comment that the statute appears entirely reasonable. A defendant is certainly aware that he has been sued, else he would not file an answer. In the instant litigation, Mode filed an answer himself, so it is readily apparent that he knew of the allegations in the complaint and the relief sought. Appellant states in his brief:

‘ ‘ It can be appreciated that there are circumstances in which a defendant finds himself unable to appear at a trial after having formally denied the plaintiff’s aliegations. This could be due to ill health, lack of funds with which to secure the services of counsel or any other of a multitude of reasons.”

Let it be pointed out, however, that there is no showing that any of the possible reasons cited, prevented the appearance of Mode at the trial. Section 29-506 Ark. Stats., 1962 Replacement, grants the trial court power to set aside a judgment “for unavoidable casualty or misfortune preventing the party from appearing or defending.” No motion was filed by appellant suggesting that relief should be granted under this section. Be that as it may, we find, and hold, § 27-1743.2 constitutional, and the court was accordingly within its rights in trying the case without a jury after appellee so requested.

II.

The question of whether children can recover from one who disrupts family ties by enticing a parent away from the home, has been before courts of various states within the last several years. In Whitcomb v. Huffington (Kansas) 304 P. 2d 465, an opinion handed down on December 8,1956, it is pointed out that three states (Illinois, Michigan and Minnesota) uphold the right to maintain such an action, and twelve jurisdictions (Arkansas, California, Colorado, Connecticut, District of Columbia, Massachusetts, New Jersey, New York, North Carolina, Ohio, Texas and Wisconsin) deny the right to maintain the action. Arkansas was undoubtedly included because of our holding in Lucas v. Bishop, 224 Ark. 353, 273 S. W. 2d 397. It is true, as pointed out by appellee, that the fact situation in Lucas was different from the case at bar. In the earlier case, Kenneth and Wilma Lucas were divorced at a time when their child, Nick Alvin, was three years of age. The divorce was awarded to Mr. Lucas, the decree finding that his wife had been guilty of abuse, contempt and studied neglect. Custody of the child was, by consent, awarded to the mother. Mrs.-Lucas, in approximately two months, married Charles Bishop. Lucas subsequently, as next friend of his son, instituted suit against Bishop for $50,000, alleging that the child had enjoyed a comfortable, happy home, but that Bishop had enticed the child’s mother to such an extent that her domestic affections were alienated, and that Nick Alvin had been deprived of the parental care of his mother and father in their home, and the financial security he was afforded before the alienation of his mother’s affections. Bishop demurred and the court sustained the demurrer, dismissing Lucas’ complaint. On appeal, we affirmed. Of course, in that case, the child continued to live with its mother, whereas in the instant ease, the mother left the children. We agree with appellee that the factual basis for recovery is much stronger in the case at bar than in Lucas; still we discern no legal difference. In Lucas, this court said:

“Unfortunately the wrong here emphasized is one that has not been legislatively translated into dollar compensation in this state; nor does the common law supply a plaintiff’s answer. * * * Appellant calls attention to Art. 2, § 13, of the Arkansas constitution: ‘Every person is entitled to a certain remedy in the law for all injuries and wrongs he may receive in his person, property, or character . . .’ The argument is that unless relief is granted by this court it is apparent that appellant will be without a remedy and that he will be deprived of just rights without due process of law.
“But the difficulty is that in this state there is no statutory law to which recourse may be had, and the common law is not helpful, hence ‘ denial of due process ’ is rhetorical rather than substantive.”

As heretofore pointed out, the weight of authority holds that minor children cannot recover for disruption of family ties, and some of the reasons (in addition to lack of statutory authority) are pointed out in cases from other jurisdictions. In Henson v. Thomas, 231 N. C. 173, 56 S. E. 2d 432, the Supreme Court of North Carolina said:

“To hold otherwise would mean that every time a person persuades a mother to engage in other activities to such au extent as to cause her to neglect her children, he commits a tort for which he may be compelled to respond in damages. The only difference lies in the gravity of the wrong and the extent of the damage.
“The problem here, in its last analysis, is sociological rather than legal. No one would question the fact that a child has an interest in all the benefits of the family circle. Nor may it be denied that the legislative branch of the government may give this interest such legal sanction as would make the invasion or destruction thereof a legal wrong. So far, it has not deemed it wise to do so.”

In Whitcomb v. Huffington, supra, the Supreme Court of Kansas stated:

“No one will deny the fact that under such circumstances a child is the innocent victim and, in most instances, suffers damage — emotional, financial, and otherwise. But, that is not the question. The question is whether, under such circumstances, the child is to be permitted to bring the action.
“If we were to answer the question in the affirmative the ramifications and far-reaching results of our decision would readily be apparent to anyone giving much thought to the matter. In practical effect we would be opening up a new field of litigation, heretofore entirely unknown, between minor children and their grandparents, for instance, or between minor children and business or social companions or acquaintances of their parents, when, perchance, some incident or line of conduct on the part of those persons occurs which might be said to have contributed to the eventual breakup of the family home and circle. We recognize fully that merely because the asserted cause of action was unknown to the common law and has no statutory sanction in this state, such fact does not present a conclusive reason for the denial of the existence of such right. Nevertheless, we are of the firm conviction that from the standpoint of sound public policy the creation of new rights of action in the field of alienation of affections is a question for the consideration and determination of the legislature, and is a function which this court should not usurp.”

Contrary to some of the reasons advanced by those courts for not permitting such a cause of action, we, of course, recognize that from a moral standpoint, there is potent argument that a right of recovery should lie against one, who is so calloused in mind and heart, that he will take away the mother of four young boys. One would be hard pressed to find sympathy for the individual who commits such a deed, but, as was stated in Lucas v. Bishop, supra,

“The creation of a right of action for a child’s benefit to compensate for loss of the intangible elements set out in the complaint here is a subject that addresses itself to the state’s policy-forming department. Until the legislature has seen fit to designate the redress which, under Art. 2, § 13, of the constitution it has a right to do, the judiciary should not transgress the coordinate boundary established by Art. 4, § 1, of the constitution. ’ ’

We take occasion to reiterate this language. It follows that the court erred in rendering judgment against appellant under Count One of the complaint for $11,000, and that item is disallowed, set aside, and stricken from the judgment.

III.

The Request for Admissions (which was not answered) was pertinent only to Point II, and since we have held there could be no recovery under that count, a discussion of Point III is unnecessary.

IV.

It is contended that some of the awards were excessive. It is first asserted that the sum of $13,400 awarded for contributions and support is not justified by the evidence. Russell’s income, at the time of his death, was $45.00 per week, which would amount to $2,340 per year. Jerry Russell was 14 years of age; Don Russell was 11 years of age; the twins, Ferrell and Darrell, were 8 years of age. It is true that the record does not disclose just what amount the father contributed for the support of these children, but it is certain that he took care of them, i.e., fed them, clothed them, and apparently provided them with whatever sums of money they used for recreation. Considering that the two youngest boys were 13 years away from attaining their majority, and Don and Jerry were respectively 10 and 7 years away from that period, we cannot agree that the total amount is excessive.

It is likewise asserted that the awards for decedent’s parental care, instruction, and love and affection, in the total amount of $17,500, are excessive. No contention is made in appellant’s brief that this last was not a proper element of damage, but it might be mentioned that we find no wrongful death case from this state that uses the term “love and affection”; in fact, in Railway Co. v. Maddry, 57 Ark. 306, 21 S. W. 472, this court held that the happiness found by the child in the love and companionship of the decedent father should never be considered. Subsequently, however, in several cases, we used language which indicated this to be a proper award. For instance, in St. Louis & N. A. Rd. Co. v. Mathis, 76 Ark. 184, 91 S. W. 763, it was said:

‘ ‘ So, in a case of this kind no amount of money can fully compensate children for the distress of mind suffered by them in the violent and painful death of the father, and in the loss of his affectionate care and attention, but the court must ascertain some just amount to allow a fair compensation for the injury.”

In Kansas City So. Ry. Co. v. Henrie, 87 Ark. 443, 112 S. W. 967, this court, referring to a decedent father, and discussing elements of damage, stated:

“He was * * * kind and affectionate toward Ms wife and cMldren and greatly interested in the proper education and training of his children. * * *”

Other cases use language in a similar vein. It would, therefore, appear that the terms used in the cases cited, and others of similar import, are, to a degree, synonymous with the term “love and affection.” Appellant states there is no evidence in the record that Bussell did other than take his sons fishing and swimming; also, occasional visits to the old homeplace in order for the boys to see their friends. It is also contended that the award for “grief and mental anguish,” in the amount of $22,500, is not sustained by the evidence.

We are not familiar with any rule by which the explicit pecuniary value of parental care, instruction, and affection, can be determined, but the children were definitely entitled to such an award. It would certainly appear from the record that these benefits to the children were mainly furnished by the decedent, for the mother voluntarily left her home — and these children. According to the record, the children had seen their mother but few times after she left the home; in fact, two of the boys testified that they had not seen her at all subsequent to their father’s funeral.

In Peugh v. Oliger, Law Reporter of March 20, 1961, 345 S. W. 2d 610, we pointed out that the term “Mental anguish” means more than normal grief, quoting from an earlier opinion of this court as follows:

“It will thus be seen that the mental anguish for which a recovery can be had must not consist simply of annoyance or disappointment or a suffering of the mind growing out of some imaginary situation, but it must be some actual distress of mind flowing ‘from the real ills, sorrows, and briefs of life’.”

In Strahan v. Webb, 231 Ark. 426, 330 S. W. 2d 291, in discussing mental anguish, we said:

“Who can say how much mental anguish is worth * * * Unquestionably, the anguish and total loss of companionship will be felt far more in some cases than in others. There are individuals who really never completely reconcile themselves to the loss of a loved one, while, on the other hand, there are those who adjust themselves within a reasonable period of time, and are pretty well able to continue along in the usual pattern. ’ ’ In the instant case, we have three small boys who had been in close association with their father, probably a closer relationship than in the average family, due to the fact that there was no mother present to share in the companionship. Suddenly the one remaining parent was taken away from them — and in a violent manner. According to the evidence of Cecil Barnett, husband of Mrs. Clida Barnett, the boys’ grandmother, the younger boys cried many nights, and on several occasions awakened the Barnetts in the middle of the night, ‘ ‘ There’s been a many of nights that me and my wife would go to bed, pick them up and take them in and love them and talk to them.” The witness stated that Ferrell, one of the twins, had been under a doctor’s care due to extreme nervousness. The boys testified that their father was good to them, and would take them fishing, swimming, and to the picture show. Mrs. Barnett stated, “He took the boys everywhere he went when he wasn’t working, and they were not in school. If he went anywhere, they were with him, because he didn’t leave them behind. And he worshiped those boys.” She also testified that their father’s death affected their school work: “They were able to continue in school but they had to stay in that same grade that year. They had to stay in that grade two years.”

As stated, there is no way to measure mental anguish. Who can determine the grief of a small boy over the sudden death of his father — a father with whom he had been closely associated — and who had been the lone source of parental advice and encouragement? The adult child who loses a parent is generally better able to withstand the blow than a minor child whose close and eonstant association with the parent in the home creates considerably more of a binding tie. It need not be added that the manner of the death of a loved one contributes to mental anguish, and the facts of Bussell’s death were well known by the children.

The $25,000 award for punitive damages is not specifically attacked, but, even so, the record supports the award made.

We are unable to say that any of the awards were excessive.

In accordance with the views heretofore expressed, the judgment is modified by reversing the award in the total amount of $11,000 made undér Count I (for disruption of the family ties and depriving the children of the parental care, instruction and affection of their mother). So modified, the judgment, in a total amount of $79,102.75, is affirmed.

       For a discussion of circumstances leading to, and surrounding the killing, see Mode v. State, 231 Ark. 477, 330 S. W. 2d 88, and Mode v. State, 234 Ark. 46, 350 S. W. 2d 675. Mode was convicted of 2nd degree murder in each case, and sentenced to 21 years in the penitentiary. The first case was reversed because of an erroneous instruction; this court affirmed the 2nd conviction.

       The balance was an award of $702.75 for doctor, hospital, and funeral expenses incurred.

       The record, relative to Mode’s financial status, would hardly support the second possible reason listed by appellant.

         We have held that “the loss to minor children of the instruction, physical, moral and intellectual training by a parent is a proper element to be considered in estimating the damage to the children by reason of such parent’s wrongful death.” St. Louis, I.M. & S. Ry. Co. v. Prince, 101 Ark. 315, 142 S. W. 499, and cases cited therein.

       Emphasis supplied.

       No award for mental anguish was made for the oldest boy, Jerry, who did not testify in the case.

       For instance, Wendell Bryant, Circuit Clerk and Recorder of Faulkner County, testified to several transactions reflected in his records, wherein Mode was paid sums of money totaling $125,000.


author: Ed. F. McFaddin, Associate Justice.

text:
    Creswell v. Keith.
    5-2782
    361 S. W. 2d 542
    Opinion delivered November 5, 1962.

      Mitchell & Mitchell and Roger L. Murrel, for appellant.

      Spencer $ Spencer, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is the second appearance of this case in this Court. Our first opinion was on April 3, 1961 (see Creswell v. Keith, No. 2339, 233 Ark. 407, 344 S. W. 2d 854).

On August 28, 1958, Creswell filed suit against Keith et al., claiming, inter alia, that Creswell was entitled to judgment for $61,500.00 because Keith had defrauded him of that amount, and that a receiver should be appointed for the Creswell-Keith Mining Trust, and for other relief. By answer, the defendants alleged that on May 28, 1957, Keith had executed a complete release of all matters involved in the litigation. When the release was exhibited, the Chancery Court refused to hear any testimony and dismissed Creswell’s suit. On appeal to this Court, we held that evidence should be heard to determine whether the release was valid. That was our holding in the opinion of April 3, 1961 previously mentioned. On remand, the Chancery Court heard all the evidence offered and after weighing the same, dismissed the plaintiff’s complaint for want of equity, finding:

‘ ‘ That the original release executed by the plaintiff, Arch N. Creswell, was a valid release executed for valid considerations and that the plaintiff has failed to establish any defense to said release or any grounds on which said release could be set aside.”

From that decree, Creswell brings the present appeal. To overcome the admitted release, Creswell stated that he received no consideration at the time he signed it. But he finally admitted that he received $910.00 and a certificate for 100,000 shares in the Creswell-Keith Mining Trust, and also a mine in Mexico and certain property at the mine which Creswell had operated for one of the companies in which he and Keith were interested. The chattel property at the Mexico mine had a book value of several thousand dollars. Creswell was the man who knew most about it. He had returned from Mexico and had been in Hot Springs three months before he executed the release in 1957. Certainly there was consideration to support the release; and there is no evidence of duress. As to misrepresentation and fraud causing Creswell to execute the release, the evidence established that Keith had written Creswell about various business matters from time to time while Creswell was in Mexico managing the mine, and of which management Keith was very bitterly complaining. In short, there is no evidence of fraud or misrepresentation.

Finally, Creswell claims that he and Keith commenced their dealings as partners, that on account of such relationship Creswell trusted Keith, and that Keith, in obtaining the release from Creswell, did not observe the standards that law and equity require in dealings between partners. In Alexander v. Sims, 220 Ark. 643, 249 S. W. 2d 832, and in Boswell v. Gillett, 226 Ark. 935, 295 S. W. 2d 758, we had occasion to consider and emphasize the trust relationship that exists between partners ; and we adhere to all the rules therein stated. Certainly Keith owed to Creswell a full and complete disclosure of assets and liabilities before purchasing his interest. In 40 Am. Jnr. 218, “Partnership” § 129, the holdings are summarized:

“The general rule that the utmost good faith is required of partners in their relationship with each other, and that, since each is the confidential agent of the other, each has a right to know all that the others know and each is required to make full disclosure of all material facts within his knowledge in any way relating to partnership affairs, is held almost universally to apply in the case of a sale by one partner to another of his interest in the partnership.”

With these guiding principles in mind, we find nothing in the record to show that Keith failed to make a full disclosure of all material facts relating to the enterprises in which he and Creswell were interested. Creswell complains that after Keith acquired his interest, oil wells were commercialized on holdings in Arkansas. But the record shows that on November 26, 1956, Keith wrote Creswell a letter while the latter was in Mexico, and told him of the oil possibilities. When Creswell returned from Mexico, he had the right of access to all the books and files of the various enterprises in which he and Keith were interested. So far as the record before us shows, the 100,000 shares which Creswell obtained in the Creswell-Keith Mining Trust might have been considered by him as ample for executing the release.

Creswell has not shown that the finding of the Chancery Court is against the preponderance of the evidence.

Affirmed.

       The release which Creswell admitted signing is as follows:
      “RELEASE
      “KNOW ALL MEN BY THESE PRESENTS:
      “I, Arch N. Creswell, of the City of Hot Springs, County of Garland, State of Arkansas, for and in consideration of the sum of $910.00 Dollars in U. S. Currency to me in hand paid by R. Neville Keith, of the City of Hot Springs, County of Garland, State of Arkansas, paid for and in behalf of himself personally and as Trustee and on behalf of Creswell-Keith, Inc. and the Creswell-Keith Mining Trust both of Hot Springs, Arkansas, do release remise and discharge R. Neville Keith personally, R. Neville Keith as Trustee, Creswell-Keith, Inc. and the Creswell-Keith Mining Trust of and from all, and all manner of actions, judgments, executions, debts, dues, claims, and demands of every kind and nature whatsoever which against R. Neville Keith personally, R. Neville Keith as Trustee, Creswell-Keith, Inc. and the Creswell-Keith Mining Trust ever had or now have, or which I or my heirs, executors or administrators have nor or may hereafter have by any reason whatsoever.
      “In witness whereof, I have hereunto set my hand this 28th day of May, 1957. (Signed) Arch N. Creswell.”

       here are portions of the said letter:
      “I am working on a deal that will really he something and will explain it fully in my next letter.
      “I have a few papers for you to sign and will enclose those also. As I explained to you we are selling enough interests in an oil well to pay the costs of drilling in advance of the drilling and have nearly enough to drill our first well on our own. I sold $4,000 or 2/16ths yesterday.
      “How are you coming along with the sale of the equipment? I wrote those people from Pocahontas but haven’t received a letter in reply. We will wait a little longer and if nothing materializes I feel we should go ahead and sell the equipment. Our oil business here is much too big.
      “Do you want me to sell some of your stock for a dollar that you bought for 25 cents? It won’t be long before we will be selling it. If you do perhaps you better finish paying for yours so we can issue the Certificate. How is the weather there? It has been a little chilly here lately. I have appointed a Board of Directors for our Corporation and they have been helping me in the sale of stock and other Departments.
      “Well I better close and get to work. It seems there is just not enough hours in a day to do every thing that has to be done. Some of the Stockholders have paid up and we now have over $30,000 in cash in the bank in Little Rock.”


text:
    Jeffery v. City of Mt. View.
    5-2791
    361 S. W. 2d 540
    Opinion delivered November 5, 1962.

      Caldwell T. Bennett, for appellant.

      John B. Driver, for appellee.
   Ed. F. McFaddin, Associate Justice.

This action was instituted by appellant to recover money which he claimed due him as marshal of Mountain View, Arkansas, a city of the second class. (Luther v. Gower, 233 Ark. 496, 345 S. W. 2d 608.) The appellees are the City of Mountain View and its mayor and councilmen.

Appellant’s complaint alleged: that at the election in 1958 Jeffery was duly elected for a two-year term as marshal of the city; that he took office on January 1, 1959, and performed the duties of the office; that the previous marshal of the city had been paid $225.00 per month, but that the city refused to pay Jeffery more than $125.00 per month, which he accepted under protest for the ten months from January through October, 1959, totalling $1,250.00; that since November 1, 1959, the city had refused to pay Jeffery anything. He prayed for the full salary of $225.00 per month for the entire term of two years, less the $1,250.00 paid him.

The city and other defendants filed general denial, and also specifically denied: that Jeffery was ever legally elected marshal or that the salary of the city marshal had ever been established by law. Affirmatively, the defendants alleged that on March 25, 1959, the city had adopted an ordinance, by the terms of which the mayor and city council had the right to choose a marshal for the term and on conditions and at the salary as fixed by the city council; and that by resolution of October 13, 1959, the city had dispensed with Jeffery’s services because of inefficiency and neglect of duty. The city denied owing Jeffery anything. The case was tried before the Circuit Judge, without a jury, on the pleadings and some stipulated facts. The Circuit Court rendered judgment, dismissing the complaint, and from that judgment there is this appeal.

In Horton v. City of Marshall, 227 Ark. 141, 296 S. W. 2d 418, we listed some of the recent cases that have been before this Court involving the matter of salary for a city marshal in a city of the second class. In those cases may be found the applicable law. In the case at bar, there is no showing whatsoever that the City of Mountain Yiew had ever adopted an ordinance fixing the salary of the marshal. The City paid the marshals whatever amount the City saw fit to pay from time to time. This being true, the case of Horton v. City of Marshall (supra), is authority for the statement that Jeffery cannot recover any fixed salary for his services as marshal merely because his predecessor was paid a certain amount. All Jeffery could legally demand for services as marshal were the fees due a constable for like service. If the city had ever fixed a salary for the marshal, then it could not have been changed during Jeffery’s tenure (§ 19-907 Ark. Stats.); but, with no salary fixed, then the city had the right to refuse to pay Jeffery any salary in addition to the fees due a constable.

Furthermore, in March 1959, the city — acting under the provisions of Act No. 172 of 1953 (§ 19-1103.2 Ark. Stats.) — adopted an ordinance providing that on and after April 1, 1959, the marshal should be appointed by the mayor of the city, with the approval of the city council, and should draw such compensation as set forth by the city council, and should serve in such capacity as marshal during the will and pleasure of the mayor and might be discharged at any time, with or without cause. (We have heretofore copied this ordinance as a footnote to this opinion.) Jeffery continued to serve as marshal under this ordinance, and to draw the salary from April 1959 until October 1959, at which time the council passed a resolution finding and declaring that Jeffery’s services were unsatisfactory, and removing him from office. When Jeffery continued to serve as marshal after April 1, 1959, and draw the salary under said ordinance, he thereby recognized the power of the city to remove him at any time. If he had wanted to remain as marshal on the basis of fees due the constable and claim § 19-907 Ark. Stats, as a right to same, then he should have made the claim in March 1959. Rather, he continued to accept pay from the city under the March ordinance and thereby has precluded himself from a recovery. He says he took the money “under protest”; but he cannot “have his cake and eat it.” When he took the monthly payment under the March 1959 ordinance (whether for poundmaster or marshal), Jeffery precluded himself from challenging the validity of the ordinance.

Affirmed.

       The said ordinance reads:
      “AN ORDINANCE TO PROVIDE FOR THE APPOINTMENT OF A CITY MARSHAL FOR THE CITY OF MOUNTAIN VIEW, ARKANSAS. BE IT ENACTED BY THE CITY COUNCIL OF MOUNTAIN VIEW, ARKANSAS:
      “Section 1. That the Marshal of the City of Mountain View, Arkansas, from and after April 1, 1959 shall be appointed by the mayor of the City of Mountain View, Arkansas, with the approval of the City Council.
      “Section 2. That the Marshal so appointed, shall draw as compensation for such services as set forth by City Council payable monthly. That the person appointed Marshal as set out herein, shall have in addition to his duties that are set out by law, the responsibility for the enforcement of livestock laws of the City of Mountain View, Arkansas. He shall be the livestock poundmaster.
      “Section 3. That hereafter, the person so appointed as Marshal shall serve in such capacity during the will and pleasure of the Mayor, and may be discharged at any time, with or without cause by the Mayor, with the approval of the City Council.
      “Section 4. That from and after the effective date of this ordinance, no election shall be held in the City of Mountain View, Arkansas for the purpose of filling the office of Marshal.
      “Section 5. That he shall perform other duties as set forth by the City Council.
      “Section 6. All ordinances and parts of ordinances in conflict herewith are hereby repealed.”


author: George Rose Smith, J.

text:
    Foster v. Ponder, Judge.
    5-2804
    361 S. W. 2d 538
    Opinion delivered November 5, 1962.

      Andrew G. Ponder, Judge; writ granted.

      Ivan Williamson, for petitioner.
    No brief filed for respondent.
   George Rose Smith, J.

This is an application by the petitioner, Bill Foster, for a writ of prohibition to restrain the respondent from proceeding further in a case involving an asserted usurpation of the office of Democratic county committeeman in Stone county. We have con-eluded that the trial court is without jurisdiction and that the writ should therefore be granted.

T. L. Ballentine filed the action against Foster in the court below. Ballentine alleged that in the Democratic primary held in August, 1960, he was an unopposed candidate for the office of county committeeman and was duly elected. He was accepted and seated by the county central committee and served until March 30, 1962. On that date other members of the committee wrongfully found Ballentine to be ineligible to hold his office, declared the position to be vacant, and selected Foster as his successor. The prayer was that Foster be ousted from the office and that Ballentine be reinstated. After the circuit court had overruled Foster’s motion to dismiss the complaint for want of jurisdiction the present petition for a writ of prohibition was filed.

In Tuck v. Cotton, 175 Ark. 409, 299 S. W. 613, we held that in the absence of a statute conferring jurisdiction the courts have no authority either to interfere in any way with political organizations or to entertain a contest for a party office. That case was followed in Park v. Kincannon, Judge, 214 Ark. 398, 216 S. W. 2d 376, where a writ of prohibition was issued to keep the circuit court from taking jurisdiction of an election contest involving the office of Democratic county committeeman.

As far as this case is concerned the statutes have not been changed since those decisions were handed down. It is true that Act 21 of 1949 permits a candidate for the office of county committeeman to contest the election by filing a complaint in the circuit court within twenty days after the committee’s certification of the nomination or of the vote. Ark. Stats. 1947, § 3-245. That statute, however, deals with the contest of a primary election at which candidates are elected by popular vote. It does not purport to confer upon the courts the power to entertain a usurpation proceeding in which the plaintiff is not contesting a popular election but is contending instead that he has been wrongfully ousted from office, long after the primary, by the action of the county committee. Inasmuch as jurisdiction has not been vested in the courts the aggrieved plaintiff must, as we observed in Brown v. Taylor, 214 Ark. 403, 216 S. W. 2d 378, carry his protest to whatever body there is within the party that exercises supervision and control over the county committee.

Writ granted.


text:
    Hollman v. State.
    5051
    361 S. W. 2d 633
    Opinion delivered November 5, 1962.
    [Rehearing denied December 3, 1962.]

      Holt, Park <& Holt, for appellant.

      Frank Holt, Atty. General, by Bussell J. Wools, Asst. Atty. Gen., for appellee.
   George Rose Smith, J.

Upon trial without a jury the appellant, John Hollman, was found guilty of having knowingly received stolen property (ten chain saws) and was sentenced to imprisonment for ten years. For reversal he contends, that his confession of the crime was involuntary and that its introduction in evidence by the State violated his rights under the due process clause of the Fourteenth Amendment.

The ten saws in question were stolen from Timberland Saw Company on October 27, 1958. Hollman was picked up by the police on the same day, without a warrant for his arrest, and was questioned about the theft. He denied any knowledge of the matter. After an hour or two of questioning he was released.

A day or two later Jerome Wells was taken into custody and confessed that he had stolen the saws and had disposed of them through Hollman. On October 30 Hollman was arrested a second time, without a warrant. The testimony of the investigating officers does not specify the date on which Hollman was questioned, but apparently it was immediately after his arrest on October 30. The trial court was certainly justified in so finding.

According to the two officers Hollman was questioned in the presence of Jerome Wells, who again confessed his own guilt and implicated Hollman. The officers say that Hollman voluntarily admitted that he received the saws from Wells, knowing them to he stolen property, and sold them for $300. Hollman testified that during the questioning Wells was “all swolled up” and appeared to have been whipped. Hollman states that the officers exhibited blackjacks, forced him to make a false confession by threatening him with the same treatment that Wells had received, and refused to allow him to telephone an attorney. Both officers deny that any force or threats were used and deny that Hollman asked to be allowed to call a lawyer.

With the testimony in direct conflict the trial court was at liberty to accept the officers ’ version of the matter and to find that the confession was voluntarily given. The fact that Hollman was “uncounseled and illegally detained” does not render his confession inadmissible. Stein v. New York, 346 U.S. 156.

Many of the appellant’s complaints relate to matters that occurred after the confession to the officers on October 30. During tbe next six days Hollman was kept in confinement while the police investigated other thefts that apparently were disclosed either by Wells or by Hollman. A total of some thirty stolen chain saws were recovered in the course of the investigation. On or about November 5 Hollman was interviewed by the prosecuting attorney and again confessed his guilt. This confession seems to have been reduced to writing, but it was not introduced at the trial. The information was filed by the prosecuting attorney on November 5, and thereafter the accused was released on bond.

We are not convinced that Hollman’s confession, if voluntarily made, was rendered inadmissible by later events. It is established by the proof that he was confined until November 5 without a formal charge having been lodged against him. It is also true that the arresting officers did not take him before a magistrate as the statute requires, Ark. Stats. 1947, § 43-601, but this omission did not invalidate the confession. State v. Browning, 206 Ark. 791, 178 S. W. 2d 77. Whether Hollman was denied an opportunity to call a lawyer was a disputed issue of fact which the trial court could resolve against the accused. Nor was the court compelled to accept Hollman’s testimony, uncorroborated and apparently based on hearsay, that members of his family were not allowed to visit him.

It is clear enough that subsequent illegal conduct on the part of the police is relevant when it casts light upon their attitude at the time of the original questioning of the accused. Haley v. Ohio, 332 U.S. 596. Here, however, we do not perceive that the later events have any tendency to support Hollman’s testimony that the officers displayed their blackjacks and threatened him with physical abuse. The case is not dissimilar in principle to United States v. Mitchell, 322 U.S. 65, where the accused was illegally detained for eight days while the police investigated other thefts that had been disclosed by his initial voluntary confession. Even though that case was tried in a federal district court, where the governing rules are more strict than those that are applicable to state procedure under the Fourteenth Amendment, the court held that the admissibility of the confession was not affected by the later occurrences. In the course of the opinion it was noted that “the illegality of Mitchell’s detention does not retroactively change the circumstances under which he made the disclosures. ” We are of the same view in the case at bar.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Gossett v. Merchants & Planters Bank.
    5-2810
    361 S. W. 2d 537
    Opinion delivered November 5, 1962.

      Richard W. Hobbs, for appellant.

      Rieves & Smith, for appellee.
   Paul Ward, Associate Justice.

Appellant and appellee are both asserting a prior claim to money deposited, as a savings account, with appellee by one Mary K Pace. Hereafter we will refer to appellant as Gos-sett, to appellee as the bank, and to the depositor as Pace.

On June 10, 1959 Gossett recovered a judgment against Pace in the amount of $265.90. Gossett, being unable to collect from Pace and learning of the Pace deposit, caused a Writ of Garnishment to be issued against the bank on October 29, 1959. The writ was served on October 31, 1959.

The bank answered on November 5, 1959 as follows: (a) The bank was not indebted to Pace but did have a deposit in the name of Pace in the amount of $1,292.55, and Pace was indebted to it as evidenced by three notes, viz:

Date of note Date due Amount

6-16-59 12-16-59 $1,250.00

8-31-59 12- 5-59 198.00

10-14-59 11-13-59 150.00

Each note was due “on demand, and if no demand be made, on the date ...” (date inserted), (b) The savings account was pledged to secure the payment of the said notes.

The trial court, after a hearing, held against Gos-sett, and the bank was discharged with its costs. In prosecuting this appeal Gossett states that the legal question presented is whether Pace can, after a judgment is entered against her, borrow money from the bank and effectively assign the $1,292.55 savings account as security, particularly where her three notes were not due and payable when the garnishment was served.

For the reasons hereafter set forth we conclude the trial court must be affirmed.

The only testimony given at the trial was by W. L. Barbour, Jr., Executive Vice President of the bank. The pertinent part of his testimony (as abstracted) was: The three notes were paid by Pace after the garnishment was served; The notes were payable on demand (as before set out). Pace’s savings account was assigned to the bank as security for the notes by two written assignments dated August 15, 1957 and February 20, 1957 as shown by attached exhibits: Assignments were attached to the savings ledger page and we held her passbook; Pace could not draw on her account without the passbook; once a loan was made to Pace her account was flagged which prevented her from drawing the money.

Based on the undisputed facts heretofore set out, the decree of the trial court must be affirmed under the decision in Geyer & Adams Company v. Bank of Central Arkansas, 170 Ark. 1016, 282 S. W. 358. In that case O. E. Hicks borrowed money from appellee and placed it on deposit with the understanding he would check it out only to pay the expenses of raising a crop. The account was designated as a “special account or deposit”. Appellant, a creditor of Hicks, had a Writ of Garnishment issued against the bank. This Court said the “real issue involved was the priority of liens”. In affirming a decree in favor of the bank, we said:

“There would be much in this contention if the deposit was general, growing out of the relationship of debtor and creditor between O. E. Hicks and the appellee bank. This unconditional relationship did not exist, for, under the agreement, O. E. Hicks could not draw checks upon the fund for any purposes except to pay debts incurred in growing the 1923 rice crop. It is immaterial that the witnesses referred to the fund as a general deposit, for under the agreement, it was deposited to the credit of O. E. Hicks by appellee for a special purpose. ... A restricted deposit is not subject to diversion by garnishment or other process, but must be used for the purpose made. In short, the fund was not subject to garnishment by the general creditors of O. E. Hicks. No lien was acquired upon it by the service of the writ, hence the court correctly dismissed the garnishment proceedings.”

In the case under consideration, under the undisputed facts, there can be no doubt Pace’s deposit was “restricted” and, therefore, not subject to diversion by garnishment. Any possible lien in favor of appellant dated only from the time the Writ of Garnishment was served. See: Green v. Robertson, 80 Ark. 1, 96 S. W. 138; Hockaday v. Warmack, 121 Ark. 518, 192 S. W. 263; Harris v. Harris, 201 Ark. 684, 146 S. W. 2d 539. Long before that time Pace’s deposit had been restricted. It is immaterial whether the three notes held by the bank were payable on demand or at some date in the future.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Independent Theatre Owners of Ark. v. Ark. Public Service Comm.
    5-2783
    361 S. W. 2d 642
    Opinion delivered November 5, 1962.
    [Rehearing denied December 3, 1962.]

      Leon B. Catlett and Howard Cockrill, for appellant.
    Moses, McClellan, Arnold, Owen & McDermott; Edgar Mayfield and Marie Woolsey, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Midwest Video Corporation, hereinafter called Midwest, is authorized to engage in the business of furnishing television to subscribers for an agreed consideration. It does not, however, have the facilities to transmit from its studio in Little Rock to customers’ receiving sets in homes or other places, the electrical impulses necessary to produce pictures and sound.

Appellee, Southwestern Bell Telephone Company, hereinafter called Southwestern, can furnish the required service, hut refused the application of Midwest for such service until the Arkansas Public Service Commission (hereinafter called Commission) found that the service would be in the public interest, and approved a tariff for the service to be furnished. Midwest, therefore, filed a petition with the Commission asking that Southwestern be required to furnish the service. Southwestern filed an answer and agreed to furnish the service if approved by the Commission and a tariff was established.

Appellants, Independent Theatre Owners of Arkansas, Inc., United Theatres Corporation, and Rowley United Theatres, Inc., intervened asking that the Midwest petition be denied. After a hearing, the Commission granted the Midwest petition and approved a tariff for the services to be furnished by Southwestern.

This is an appeal by the theatre owners from a judgment of the Pulaski Circuit Court affirming the action of the Commission.

There are three issues on appeal. (1) Appellants contend that the service to be furnished by Southwestern is not in the public interest; (2) that the Public Service Commission does not have jurisdiction of the subject matter; and, (3) that the Federal Communications Commission has exclusive jurisdiction.

The sum and substance of appellants ’ argument that the proposed service is not in the public interest is that the appellant theater owners cannot successfully compete with the entertainment that will be furnished by Midwest in the form of television.

Midwest is not a public utility; it is a private concern engaged in furnishing television to members of the public who want to buy it, but it cannot distribute its product without the facilities of Southwestern. Midwest, therefore, asked that Southwestern, which is a public utility engaged in transmitting electrical impulses by wire, be required to furnish that service. Midwest is in a position similar to that of the theater owners, who conld not show pictures in their theaters unless they had the use of electricity furnished by the power company, and, no doubt, the power company could be compelled to furnish such service.

The only authority appellants cite to sustain their contention that the proposed service is not in the public interest is Arkansas Electric Cooperative Corp. v. Arkansas Missouri Power Co., 221 Ark. 638, 255 S. W. 2d 674. We do not think that case sustains appellants’ view, and we have found no other case sustaining that view. In that case the issues were whether, under the Arkansas statutes, Arkansas Electric could legally sell power to SPA, and whether, under federal legislation, SPA could legally bind itself to the performance of its contracts with Arkansas Electric.

In its finding in the case at bar, the Commission said: “All the Intervenors’ arguments add up to one contention, that pay television will disrupt other segments of the entertainment business. Any new invention is likely to lead to economic change. This Commission cannot deny the people of Arkansas the benefits of a new entertainment media merely because other segments of the industry may be inconvenienced thereby.” We think what the Commission said is a complete answer to appellants’ contention on this point.

The next issue is whether the Commission had jurisdiction of the subject matter; that is, did the Commission have the authority to issue any orders at all in connection with pay television, or was it a non-utility service. If it is non-utility, the Commission does not have jurisdiction. Associated Mechanical Contractors of Arkansas, etc. v. Arkansas Louisiana Gas Co., 225 Ark. 424, 283 S. W. 2d 123. But the Commission has the power and jurisdiction to regulate defined utilities operating as such. Ark. Stats. 73-202.

The term “public utilities” includes a person or corporation conveying or transmitting messages or communications by telephone or telegraph. Ark. Stats. 73-201. If the sending of an electrical impulse over a coaxial cable owned and serviced by Southwestern, which produces a picture or sound, is conveying a message or communication by telephone or telegraph, then such service is a public utility subject to regulation by the Commission. Appellants contend that the operation of coaxial cables, although legal, does not come within the meaning of ‘ ‘ conveying or transmitting messages or communications by telephone or telegraph” as authorized by Ark. Stats. 73-201.

In some localities, television reception by ordinary means is not good, and in some such locations, Community Antenna TV Companies, known as CATV, have been formed for the purpose of building a special antenna capable of receiving, without distortion, wireless electrical impulses, amplifying them, and distributing them by coaxial cable to those subscribing for the service. Appellants cite Television Transmission, Inc. v. Public Utility Commission, (Cal. 1956), 301 P. 2d 862, as holding that companies rendering such service do not come within the jurisdiction of a Public Service Commission. There is, however, a clear distinction between that case and the case at bar.

The above mentioned case turns squarely on the proposition that the transmission company was not a telephone corporation because it did not operate a telephone line, and therefore, did not come within the provisions of the California Code regulating telephone companies. In the case at bar, of course, Southwestern is a telephone company and the wires carrying the electrical impulses producing the sound and pictures will be carried on the telephone company’s poles. In the cited California case, the Court said: “It does not follow, however, that because telephone corporations are not prevented by law from using their lines . . . for the transmission of television broadcasts, any corporation that uses the poles, wires, et cetera, to transmit such broadcasts is a telephone corporation.”

Another case pointing out the distinction between an antenna company and a telephone company is In Re New York Telephone Company, 34 PUR 3rd 115. There, the New York Public Service Commission said: “The telephone company does not propose, under its tariff Tl, to become an antenna company. It is not going to sell any service to the owners of television sets or erect any master antennas. [The same is true in the case at bar.] The service offering is limited to conveying (transporting or transmitting) for an antenna company, television signals from one point to another. Services of a like character are presently provided by the telephone company pursuant to field tariffs; for example, the telephone company provides channels for teletypewriter, teleprinter, telephotography, telautograph, Morse, and facsimile communication. In addition, channels are provided for the transmission from point to point of programs material such as music or other sound and for video program material. Similarly, the telephone company by offering channels to an antenna company is offering to provide a communication service — -a variety of telephony or telegraphy — and nothing else.

‘ ‘ The mere fact that at this stage of development of this form of picture and sound transmission special coaxial cable and other special equipment must be installed in order to provide this particular service does not militate against the conclusion that the telephone company is providing telephone or telegraph service. A conclusion about the commisson’s jurisdiction over the service proposed to be provided under Tariff Tl cannot be made to depend upon the type of system used, i.e., coaxial cable or ordinary telephone wires, but must be based on a determination whether thereby a telephonic or telegraphic communication service is being provided. We think one is.

“It is clear that the telephone company is undertaking to transmit intelligence from one point to another for the benefit of a subscriber, using principles of telephony (or telegraphy). It proposes to provide this service upon similar terms to one and all seeking it. The company’s filing of a tariff covering the service was proper.”

In Ohio Telephone and Telegraph Co. v. Steen, 85 N. E. 2d 579, it is said: “The Court is also of the opinion . . . that the transmission of television is merely an advance or improvement in the art of telegraphy and telephony and therefore the right of eminent domain for telegraph and telephone purposes ... is applicable to television. ’ ’

In Ball v. American Telephone and Telegraph Co., 86 So. 2d 42, the Mississippi Court said: “Television is but one of many scientific achivements of the past few decades made possible by developments of the carrier art. Some of the others are radio, teletype, and the phototelegraph, each of which employs electrical impulses in transmission. All these devices to some extent make use of cables and wires in the transmission process. Transmission techniques developed by or as an adjunct of the telephone business has made possible the services performed by these devices. We should not construe the eminent domain statutes so as to require the telephone and telegraph companies to secure new easements for every new device that employs the use of electrical impulses even when the new device performs a function other than the transmission of sound or articulate voice. To do so would lead to absurd and unreasonable results. We conclude that television transmission is an integral part of the telephone and telegraph business as it has developed and now exists.”

Next, appellants contend that the Arkansas Public Service Commission does not have jurisdiction because the service to be furnished by Midwest is interstate in character, and that Congress has pre-empted that field, giving the Federal Communications Commission exclusive jurisdiction. Appellants cite In Re Bennett, 89 PUR, N. S. 149. There, the Wisconsin Court held that it lacked jurisdiction to determine whether a community television antenna is a public utility because the Court was of the opinion that Congress had completely occupied the television field. But the Wyoming Commission held that an antenna company was a public utility because of the wording of the Wyoming statute. Re Cokeville Radio & Electric Co., 6 PUR 3d 129.

The tariff approved by the Arkansas Commission covers “intrastate closed circuit television channels furnished by the Telephone Company over facilities located wholly within the State of Arkansas”. Telephone and telegraph communications taking place within a single state are intrastate. Western Union Telegraph Co. v. Alabama Board of Assessment, 132 U. S. 472, 33 L. Ed. 409, 10 Sup. Ct. 161.

The Communications Act of 1934, 47 USCA, Sec. 151, et seq., recognizes the jurisdiction of the state over intrastate communications. Section 152 provides: “The provisions of this chapter shall apply to all interstate and foreign communication by wire . . . Nothing in this chapter shall be construed to apply or to give the Commission [FCC] jurisdiction with respect to (1) charges, classifications, practices, services, facilities, or regulations for or in connection with intrastate communication services by wire or radio of any carrier.”

Congress has pre-empted the field of interstate communications, but has not pre-empted the field of intrastate communications. The service to be rendered by Southwestern, as described in the tariff approved by the Commission, is strictly intrastate in character. The Arkansas Commission, therefore, has jurisdiction to regulate such service.

Affirmed.

Bohlinger, J., not participating.


text:
    McBride v. Ark-La. Industries.
    5-2813
    361 S. W. 2d 532
    Opinion delivered November 5, 1962.

      B. D. Rouse, for appellant.

      James H. Pilkinton, for appellee.
   Sam Robinson, Associate Justice.

On the 4th day of November, 1959, appellant, Mrs. Louise E. McBride, went to work for appellee, Ark-La Industries, at its furniture factory at Emmett, Arkansas. On the 27th day of January, 1960, while helping to stack a crated dresser weighing about 90 pounds, Mrs. McBride fell, and according to the evidence and to the finding of the Workmen’s Compensation Commission, she injured her back at that time. She continued to work, however, for the rest of that day, but the next morning went to see the doctor. She then returned to work and finished out that day. The next two days she was unable to return to work, but on the third day she went back to her job and worked until February 26, when she again went to the doctor. At that time she was placed in the hospital, where she stayed for about 12 days, but on her release from the hospital she did not return to work.

Later, she applied for workmen’s compensation and was allowed disability benefits for a total of only 54 days. She has appealed from the order of the Commission.

The uncontradicted evidence is that Mrs. McBride did fall while helping to handle the heavy dresser on January 27, and that the dresser partly fell on her. Dr. Glenn G. Hairston testified that she was able to return to work on April 17, 1960, but Mrs. McBride testified that she was not able to return to work at that time; that the pain in her back and in her leg was so great that she could not stand to work.

It cannot be said that Dr. Hairston’s testimony is substantial to the effect that Mrs. McBride was able to return to work on April 17, because on the 16th of May, he certified as follows: ‘ ‘ This is to certify that Mrs. McBride has recovered from her recent hospitalization, and is able to return to work as of April 17, 1960. She should not do work that requires stooping, bending, or heavy lifting.” As a matter of fact, this certificate amounted to a certification that Mrs. McBride was not able to work at her job, because the job she had in the shipping department of appellant’s factory required her to stoop and bend, even if it did not require heavy lifting. There is no other evidence in the record that Mrs. McBride was able to return to work on April 17, and Dr. Hairston’s testimony is not substantial to that effect.

On February 27, 1961, Mrs. McBride was admitted to the University of Arkansas Hospital in Little Rock because of the condition of her back, and was released on March 4, five days later. Dr. James A. Brown of the University Hospital, testified that the final diagnosis was: “Normal patient. No objective evidence of disease found. ’ ’

The testimony of Dr. Hairston and Dr. Brown is the only evidence in the record that Mrs. McBride is not suffering from disability with her back. We have called attention to the inconsistency of Dr. Hairston’s testimony in that respect, and we think that Dr. Brown’s testimony is even more inconsistent. When he examined Mrs. McBride in February, 1961, he gave a diagnosis of a normal patient with no objective evidence of disease, but he testified that the patient developed numbness over the postero-lateral aspect of the right leg one year ago (which would be about one month after the alleged injury occurred); that the patient walks stooped over because she has such pain; that there is anesthesia to pinprick over the lateral aspect of the right leg and the posterior aspect of the right buttock up to the level of L-5; that there was found to be present decreased bilateral knee jerks; that posterotibial reflex was absent bilaterally; that proprioception appeared to be absent in the right foot but not in the left; that the admitting impression was herniated nuclea pulposus at L-3, -4 level; and that there was a slight narrowing of the lumboscral joint. He further testified that upon being discharged from the hospital, the patient was told to continue to use heat to her back and analgesics as necessary. It is hard to understand why, if nothing was wrong with the woman, it was necessary to continue the use of heat to her back and analgesics.

Dr. Charles Avery testified that he first treated Mrs. McBride for her back January 28, 1960, and that he has treated her for her back off and on since that time ; that she has been to see him 17 times because of her back; that the patient had been advised to avoid lifting completely, bending or stooping, and to sleep on a hard mattress. Dr. Avery further testified that he sent Mrs. McBride to Dr. John M. Hundley, an orthopedic surgeon in Little Bock, and that she had not been able to work since the date of her injury.

Dr. Hundley testified that his examination of Mrs. McBride reveals tenderness over the L4 region (4th lumbar vertebra); that flexion of the trunk is 25 per cent of normal; extension is 75 per cent of normal, accompanied by pain in the lumbosacral area; that there is hypalgesia over the lateral aspect of the right thigh and leg; that x-rays showed an abnormal condition of the spine around the 4th and 5th lumbar vertebra; that there was a degeneration of the nucleus pulposis, with probable herniation; and that he felt that she had a pre-existing degeneration of the spine which could have been aggravated by heavy lifting.

After reviewing the Medical Center reports, Dr. Hundley made an additional report and stated: “The conclusions of the doctor at the Medical Center are not in keeping with the objective clinical and x-ray findings —as there are reported abnormalities on examination and x-ray and yet it was deduced the patient was normal without disease. This quite obviously is not in agreement with their findings, nor in my findings and opinion. ’ ’

“Since there is organic evidence of injury and/or aggravation of a pre-existing condition, I must conclude that as a result of the incident of January 1960 that this patient does have 10 per cent permanent partial disability of the body as a whole due to the injury.”

Of course, this Court has held many times that a decision of the Workmen’s Compensation Commission will be affirmed if there is any substantial evidence to support it. Here, the Commission made a finding that Mrs. McBride received an injury'during the course of her employment. There is substantial evidence that she had not recovered from such injury on April 17, 1960, which was the end of the compensation period as found by the Commission.

When the testimony of Dr. Hairston and Dr. Brown is viewed in its entirety, as heretofore pointed out, we do not think it is substantial evidence that Mrs. McBride was able to return to work on April 17, 1960, and there is no other evidence in the record of any kind that she was able to return to work at that time.

Accordingly, the judgment is reversed and the cause remanded for further consideration by the Commission.

McFaddin, J., not participating.


text:
    Smyth Worldwide Movers v. Little Book Packing Co.
    5-2805
    361 S. W. 2d 534
    Opinion delivered November 5, 1962.

      W. J. Walher and Conley Byrd, for appellant.

      E. L. McHaney, Chowning, McHaney, Mitchell, Hamilton é Burrow, for appellee.
   Neill Bohlinger, Associate Justice.

The appellant brought this action in the Pulaski Circuit Court to recover a sum of money which it alleged was due it by the appellee, Little Bock Packing Company, for transporting the household goods of B. Wayne Nelson to Puerto Bico.

It appears from the record that Wayne Nelson was an employee of the Puerto Bico Meat Packing Company; that Joe P. Finkbeiner was treasurer of the Puerto Bico Meat Packing Company and president of the Little Bock Packing Company; that Mr. Nelson had requested the appellant to move his household goods to Puerto Bico and the appellant requested a purchase order to cover the moving services. This request was made by wire to the Little Bock Packing Company.

Besponsive to that request, the following purchase order was given to the appellant:

“PURCHASE ORDER No. 61
PUERTO RICO MEAT PACKING CO.
CAGUAS, PUERTO RICO
DATE 9-26, 1962
TO A B Co Van Lines, Inc. ATT: W. H. Dobbs
ADDRESS 527 No. 33rd Louisville, Ky.
Please furnish the following and charge to our account:
Quantity Article No. Description
Moving B. Wayne Nelson’s Household Goods From Louisville to Puerto Rico.
Re: Your telegram—
Estimated Cost: 6,000 Lb.
@ 4460 per CWT — $2,667.00
Invoice: L. R. Packing Co.
Box 1109
L.R., Ark.
/s/ by Carolyn Presson
Yours very truly,
PUERTO RICO MEAT PACKING CO.
By /s/ Joe P. Finkbeiner
Charge to................................................Department
NOTICE
Invoice for goods covered by this order must bear the above purchase order number, before it will be passed for payment.
PUERTO RICO MEAT PACKING CO.”

Mr. Nelson’s household goods appear to have been moved by the appellant and delivered to him in Puerto Bico on November 4, 1960. The following March the appellant sent a bill to the Little Bock Packing Company for the amount of its charges covering the above service. The Little Bock Packing Company then advised the appellant that this item was an expense of the Puerto Bico Meat Packing Company and the invoice was being forwarded to the Puerto Bico Company at Caguas, Puerto Bico. The Puerto Bico Meat Packing Company went into bankruptcy in September 1961 before payment of appellant’s invoice and appellant was advised that it had been listed as one of the creditors of the Puerto Bico Meat Packing Company. Thereafter the appellant brought this suit to recover the amount of its invoice from the Little Bock Packing Company.

The trial court found the issues for the appellee and appellant has appealed relying on the point that the trial court erroneously interpreted the written provisions on the printed/written order form.

The record before us reflects that Mr. Joe P. Finkbeiner, who was the president of the Little Bock Packing Company, was also treasurer of the Puerto Bico Meat Packing Company and that Joe P. Finkbeiner and Chris Finkbeiner were stockholders in both corporations. The Little Bock Office of the Puerto Bico Meat Packing Company was in the same building with the office of the Little Bock Packing Company and Carolyn Presson was secretary to both Mr. Joe P. Finkbeiner and Mr. Chris Finkbeiner but was not an officer in either corporation.

A purchase order is an authorization by the issuing party for the recipient thereof to provide materials or services for which the issuing party agrees to pay. The purchase order is an offer to buy. We are not here concerned with when the purchase order becomes binding on both parties for certain it is that it is binding when those things ordered have been provided as here.

We find no ambiguity in the purchase order. It is indeed a document of the Puerto Bico Meat Packing Company and that name appears in bold type in three places on the purchase order. On the purchase order, the party addressed is requested to “please furnish the following and charge to our account: * * * Puerto Rico Meat Packing Co. By Joe P. Finkbeiner.” In addition to that, the person furnishing the services under the purchase order is cautioned that: “Invoice for goods covered by this order must bear the above purchase order number before it will be passed for payment. Puerto Rico Meat Packing Co.”

The contention of the appellant is predicated on the following words that appear on the face of the purchase order: “Invoice: L. R. Packing Co. Box 1109 L.R., Ark. by Carolyn Presson.” We are left in no doubt that the insertion of these words was done by Carolyn Presson who was not an officer of either corporation and we are loath to believe that a mere employee can nullify or vary the explicit commitment of an officer of a corporation. It was clearly made the debt of the Puerto Rico Meat Packing Company by the action of its treasurer and we think it significant that the appellant did not bill the Little Rock Packing Company until the latter part of March 1961, at which time the Little Rock Company advised the appellant that the item was the obligation of the Puerto Rico Meat Packing Company and they were forwarding the invoice to it. If the appellant took any steps at that time to assert its claim against the Little Rock Packing Company we fail to find it and that was the time that the appellant should have made its contention known.

Where no ambiguity appears, the construction of the agreement is for the court. West v. Todd, 207 Ark. 341, 180 S. W. 2d 522; Bailey v. Sutton, 208 Ark. 184, 185 S. W. 2d 276; Lindner v. Mid-Continent Petroleum Corp., 221 Ark. 241, 252 S. W. 2d 631.

There is no evidence introduced that tended to show or did show that the Little Rock Packing Company, acting through authorized personnel, agreed to obligate itself. There is no evidence that appellee attempted to mislead anyone and there is certainly no testimony that Carolyn Presson had authority or apparent authority to obligate the company over and above the obligation of the officers of the company.

The trial court properly interpreted the purchase order and its judgment is affirmed.