text:
    Burton H. ADAMS v. PLANTERS PRODUCTION CREDIT ASSOCIATION, A Corporation
    77-165
    561 S.W. 2d 80
    Opinion delivered February 6, 1978
    (Division I)

      Wilson & Wilson, by: Ralph Wilson, Jr., for appellant.

      Reid, Burge & Prevallet, for appellee.
   Darrell Hickman, Justice.

This appeal from the Mississippi County Chancery Court presents two questions: whether the appellant properly abstracted the record as required by our Rule 9 (d), and, the appellant’s claim of a homestead exemption from a judgment.

The appellee, Planters Production Credit Association, questions the appellant’s fair and proper abstract of the record on appeal, as required by our Rule 9 (d). We do not consider this objection because the appellee supplied the deficiency in its brief. See Arkansas Appellate Practice: Abstracting the Record, 31 Ark. L. Rev. 359 (1977).

We agree with the chancellor’s decision that the appellant failed to prove he was entitled to a homestead exemption on his forty acres.

Adams and his wife were divorced in July, 1975. Adams got exclusive title to the forty acres in question. In 1976, Planters Production Credit obtained a judgment against Adams for some $65,000. In November, 1976, Planters executed on the judgment and levied on Adams’ forty acres. Thereafter Adams filed a petition claiming his forty acres as exempt from execution under Article 9, Section 3 of the Arkansas Constitution. The Constitution exempts a homestead “of any resident of this state who is married or the head of a family” from execution. Adams was not married and the question below and on appeal is whether Adams was the head of a family.

Adams claimed he was the head of a family because his grown son lived with him in a trailer on the forty acres. Therefore, it becomes a question of dependency.

Adams quite candidly admitted that he was trying to establish a homestead on the forty acres on the advice of counsel. He had the divorce decree amended so that he would have custody of his son who was over twenty-one years of age. Adams offered testimony, corroborated by his son, showing that the son was a resident at a trailer on the forty acres. However, other evidence was offered that the son was a full-time student in college, receiving an athletic scholarship for all expenses. Necessarily his “residence” was on week-ends or during school vacations.’ Mr. Adams testified that he was not able to give his son very much money but did from time to time give him spending money. Apparently Adams lived in the trailer but the trailer was originally purchased by Adams’ former wife to be used by the son when he got married. The son was not married at the time of the trial.

The chancellor correctly pointed out that the father was not obligated to support the son by virtue of the amendment of the divorce decree, nor could the chancellor find other evidence to support a finding that Adams was the head of a family. The judge stated:

I have tried every way I can to stretch this as far as I can to establish a homestead for this gentleman but under this set of facts ... I can’t do it.

We agree with this finding and cannot say it is against the preponderance of the evidence. That is the test on review of a chancellor’s decision. Sowards v. Sowards, 243 Ark. 821, 422 S.W. 2d 693 (1968).

We distinguish this case from our decision in Yadon v. Yadon, 202 Ark. 634, 151 S.W. 2d 969 (1941). In that case a child lived with a parent beyond the age of majority. However, there was evidence that the child had remained at the home during minority and continuously thereafter until reaching twenty-five years of age. Also, there was evidence of partial dependency and the existence of “social status of the family.”

We cannot say the evidence in this case clearly shows any of these factors which would require us to reverse the chancellor’s decision.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Howard, JJ.


source: Caselaw Access Project

author: George Howard, Jr., Justice.

license: Public Domain

text:
    Terrel GORDON v. Gordon L. CUMMINGS et al
    77-169
    561 S.W. 2d 285
    Opinion delivered February 6, 1978
    (Division I)
    [Rehearing denied March 13, 1978.]

      Thurman, Everett & Whitlock, by: John C. Everett, for appellant.

      Marshall N. Carlisle, of Murphy & Carlisle, for appellee Gordon L. Cummings and John W. Bailey, for appellees Karen Jones, Director, and Kenneth Davis, et al, members of Alcoholic Beverage Control Board. .
   George Howard, Jr., Justice.

The parties to this appeal have invoked the jurisdiction of this Court to have determined the propriety of the Department of Alcoholic Beverage Control Board, a state agency, in granting a license to Gordon C. Cummings to sell vinous, spiritous and malt liquor at a location in Fayetteville, Washington County, Arkansas.

The appellant, who is the opponent to the issuance of the license, has raised a number of issues in this appeal, contending:

1. The court erred in dismissing the petition with respect to the petitioners, Harold Burch and Hugh Shackelford.
2. The court erred in denying the petitioner the right to a trial by jury.
3. The court erred in admitting evidence regarding the circulation figures for the Prairie Grove Enterprise Newspaper.
4. The court erred in its finding that the notice of the application for a retail liquor permit was published in a newspaper of general circulation in Fayetteville, Arkansas.
5. The court erred in its finding that the retail liquor permit in issue was not barred as being situated too close to a school and school property.
6. The court erred in its ruling that the testimony of the appellant’s witness, Harry Vandergriff, and the minutes of the Board of Directors meeting of the City of Fayetteville were inadmissible for the reason that the evidence was outside the record of the Alcoholic Beverage Control Board.
7. The court erred in its finding that the appellant had failed to meet his burden of proof on the issue of a third party, who was interested in another retail liquor permit, being also interested in the retail liquor permit at issue.

After carefully reviewing the record in this action, we are convinced that the judgment of the Washington County Circuit Court should be. reversed and the cause remanded through the circuit court to the Alcoholic Beverage Control Board for further proceedings consistent with this opinion. This determination is based upon the Board’s failure to make explicit and concise findings of fact and conclusions of law separately stated in an order involving the Board’s action on the application for the liquor permit.

We made it crystal clear in First State Building and Loan Association, Mountain Home, Arkansas v. Arkansas Savings and Loan Board, 257 Ark. 599, 518 S.W. 2d 507, that the threshold question in a case brought to court from administrative agencies is:

‘Has the agency followed the-dictates of Ark. Stat. Ann. § 5-710, by providing concise and explicit findings of fact and conclusions of law separately stated in its Order. ’ (Emphasis supplied)

We further specified in First State Building and Loan Association, Mountain Home, Arkansas v. Arkansas Savings and Loan Board, supra, the positive benefits flowing from explicit and concise findings of fact in administrative agency orders as:

1. Facilitating judicial review; and,
2. Avoiding judicial usurpation of administrative functions; and,
3. Assuring more careful and administrative consideration; and,
4. Aiding parties planning for rehearings and judicial reviews; and,
5. Keeping agencies within their jurisdiction.

In this case, the Board made no formal order regarding its decision. The record reflects a notation on the face of the application “granted”, which was dated and signed by the director. Consequently, it was incumbent upon the circuit court to make explicit findings of fact and conclusions of law. Thus, the circuit court usurped administrative functions. The circuit court’s area of responsibility, under the law, consisted of determining if the holding of the Board was supported by substantial evidence. Neither the circuit court, nor this Court, from the record, can determine what specific facts the Board relied upon in granting the application. Indeed, we can not assume and indulge in a flight of speculation and imagination in order to fill the vacuum contained in this record.

The application for the liquor permit was vigorously opposed by the officials of the City of Fayetteville, the President of the University of Arkansas at Fayetteville, by appellant who submitted a petition containing numerous names, the Fayetteville School Board, and the Washington County Sheriff and Prosecuting Attorney, who subsequently withdrew their opposition. Moreover, there was a question raised concerning the distance of the proposed liquor outlet from a junior high school and the validity of the publication of notice of the application for the liquor permit in a newspaper located in another town with a weekly circulation in the City of Fayetteville, with a population of 31,915 inhabitants, of 159 copies. The record is completely silent as to the findings of the Board regarding these hotly contested issues.

It is well settled that administrative agencies are better equipped than courts, by specialization, insight through experience and more flexible procedures to determine and analyze underlying legal issues; and this may be especially true where such issues may be wrought up in a contest between opposing forces in a highly charged atmosphere. This recognition has been asserted, as perhaps, the principal basis for the limited scope of judicial review of administrative action and the refusal of the court to substitute its judgment and discretion for that of the administrative agency. See: 1 Am. Jur. 2d, Administrative Law, Section 17, p. 821.

The circuit court found that the appellant in contesting the action of the Board in granting the liquor license had elected not to seek review of the Board’s action under the Administrative Procedures Act, Ark. Stat. Ann., Section 5-701 through 715. In Arkansas Savings and Loan Board et al v. Central Arkansas Savings and Loan, 256 Ark. 846, 510 S.W. 2d 872 (1974), we held that the requirements of Ark. Stat. Ann. § 5-710 are primarily for the benefit of the review court and can not be waived by the parties. See also: First State Building and Loan Association, Mountain Home, Arkansas v. Arkansas Saving's and Loan Board, supra.

Concluding, as we must, that the Board made no findings of fact and conclusions of law, we do not reach the questions tendered by the parties in this appeal. Accordingly, the judgment is reversed and the case is remanded.

Reversed and remanded.

We agree. Harris, CJ., and George Rose Smith and Hickman, JJ.


text:
    WILLITS AND SON SOD FARM, Employer, and ARKANSAS FARM BUREAU, Insurance Company v. Jeanette M. MOON, Widow of Robert Earnest MOON, Deceased Employee
    77-364
    561 S.W. 2d 82
    Opinion delivered February 6, 1978
    (Division I)

      Laser, Sharp, Haley, Young & Huckabay, P.A., for appellants.

      Purtle, Osterloh & Weber, by: Henry J. Osterloh, for appellee.
   George Howard, Jr., Justice.

This is a Workmen’s Compensation case and the question to be determined is whether there is substantial evidence to support the holding of the Commission that appellants-respondents are liable for medical expenditures due the Veterans Administration Hospital.

After reviewing the complete record, we conclude there is substantial evidence to support the Commission’s holding and, accordingly, we affirm.

THE FACTS

The facts show that the employee-decedent, Robert Earnest Moon, on December 27, 1973, sustained a compensable injury in the course of his employment and was admitted to the Baptist Medical Center in a comatose condition. He was subsequently transferred to the Veterans Administration Hospital where he died on March 10, 1974, without ever regaining consciousness.

On or about December 10, 1974, the Veterans Administration Hospital filed its claim with the Arkansas Workmen’s Compensation Commission for medical services rendered in behalf of the decedent in the sum of $3,000.00. The evidence reflects, and the Commission found, that the Veterans Administration Hospital had no knowledge of the Workmen’s Compensation coverage until December 10, 1974, but upon receiving notice of coverage, the Veterans Administration Hospital promptly filed its claim.

Appellants controverted the employee-decedent’s claim as well as the claim of the widow of the employee for death benefits, all the way to the Arkansas Supreme Court, on the grounds that the employee-decedent’s injury and death were unrelated to his employment. However, during this protracted litigation, appellants did not challenge the validity of the Veterans Administration Hospital’s claim or the standing of appellee to press for payment of the claim.

Sometime after this Court affirmed the Commission’s holding in an unpublished opinion dated May 3, 1976, which involved a collateral matter involving the merits of the widow’s claim for death benefits, appellants challenged the Veterans Administration Hospital’s claim on the sole ground that the Veterans Administration Hospital did not comply with Rule 21 of the Commission. Rule 21 provides, inter alia, that when an injured workman enters a Veterans Administration Hospital for treatment of an on-the-job injury, the Veterans Administration Hospital, as soon as it ascertains from the injured workman that he has suffered from an alleged compensable injury, shall promptly notify the Commission, employer or the' insurance carrier. Rule 21 also provides that upon receipt of such notice, the employer or insurance carrier shall immediately offer to provide the injured employee private medical and hospital care and in the event the employee declines such offer, the insurance carrier and employer shall not be liable for the expense of the treatment rendered by the Veterans Administration Hospital.

On January 3, 1977, appellants-respondents, for the first time, by letter, asserted an additional contention in resisting the Veterans Administration Hospital’s claim by asserting that the Veterans Administration Hospital had no standing to recover on its claim for medical services rendered. In support of this position, appellants cite Pennsylvania National Mutual Casualty Insurance Company v. Barnett, 445 F. 2d 573 (5th Cir., 1971).

I.

Appellants’ argument that the case of Pennsylvania National Mutual Casualty Insurance Company v. Barnett, supra, requires a reversal of the Commission’s holding in the instant case in requiring appellants to pay the claim of the Veterans Administration Hospital is not convincing. Barnett is not on all fours with the instant case and, consequently, is to be distinguished. For example, in Barnett, the Veterans Administration Hospital was a party litigant in the action, whereas, in the instant case, the Veterans Administration Hospital is not. From the inception of the. controversy centered around the claim of the Veterans Administration Hospital, the appelleewidow has taken all of the affirmative steps to require appellants to pay the medical expenditures incurred in connection with her husband’s injury. Moreover, in the instant case, the employee-decedent was admitted to the Veterans Administration Hospital in a comatose state and, as a matter of fact, never regained consciousness. The Veterans Administration Hospital could not comply with Rule 21 or obtain an assignment of Workmen’s Compensation Commission benefits because it had no knowledge of the existence of such benefits. However, upon learning of Workmen’s Compensation coverage, the Veterans Administration Hospital took prompt action to file its claim. On the other hand, in Barnett, the injured employee did not execute an assignment of Workmen’s Compensation benefits to the Veterans Administration Hospital, although Barnett was physically and mentally able to execute an assignment and, did in fact, execute other documents during his confinement.

In addition, although the initial hearing in the Workmen’s Compensation action was held on July 25, 1974, appellants did not assert lack of standing to claim payment for medical expenditures by the Veterans Administration Hospital until January 3, 1977. Besides, the record reflects that appellants may have led the Commission and appellee to believe that the only question to be raised about medical expenditures, if any at all, would relate to the reasonableness of such expenditures. Consequently, not only is there a basis for laches to be invoked, but, perhaps estoppel as well.

II.

Relative to appellants’ argument that the Veterans Administration Hospital did not comply with Rule 21 of the Commission, we would simply state that what we have already said above applies here. However, it seems apparent from the record that appellants knew that decedent had been transferred to the Veterans Administration Hospital and was admitted in a comatose state and appellants could have taken steps to offer to provide care for the decedent in a private hospital under the care of a private physician, thus,, laying a foundation for invoking Rule 21 of the Commission and, consequently, deriving whatever benefits appellant may have been entitled to under this rule.

Affirmed.

We agree. Harris, C.J., and George Rose Smith and Hickman, JJ.

       It is significant to note that the Veterans Administration Hospital is not a party litigant to this action. Moreover, the only involvement by the Veterans Administration Hospital is the fact that it did file a claim for medical services rendered, but appellee has been the moving party against appellants for consideration of the claim.


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

text:
    Jacqueline RANEY v. Thomas D. RANEY
    76-385
    561 S.W. 2d 287
    Opinion delivered February 13, 1978
    (In Banc)
    [Rehearing denied March 13, 1978.]

      Ernie E. Wright and Roy E. Danuser, for appellant.

      Friday, Eldredge & Clark, by: Michael G. Thompson, and Catlett & Henderson, by: Leon Catlett, for appellee.
   George Rose Smith, Justice.

In this case the parties separated in 1973, after 19 years of marriage. There are three children, now grown or nearly so. Both parties sought a divorce, Raney on the ground of three years’ separation and Mrs. Raney on that ground and indignities as well. After a protracted trial the chancellor announced that he could not find either party to be at fault, at once adding: “That necessarily means she would not be entitled to his, quote, property.” At the chancellor’s invitation Raney agreed that, as between the two, the divorce might be awarded to his wife under the three-year separation statute. The chancellor fixed alimony at $15,000 a year, directed that two jointly owned pieces of real property be sold and the proceeds divided, awarded the household furniture and furnishings to Mrs. Raney, provided her with a car, directed Raney to carry $100,000 of life insurance with Mrs. Raney as the beneficiary until her remarriage or death, and awarded Mrs. Raney a $7,500 attorney’s fee. There is now no dispute about child custody or child support. Mrs. Raney appeals and Raney cross appeals, each seeking more favorable terms with respect to alimony and property division.

Inasmuch as the marriage was obviously beyond the possibility of being salvaged when the case was heard, the primary issue before the trial judge was whether the wife was the injured party, so as to be entitled to a statutory one-third interest in her husband’s property. The chancellor, in refusing to make a finding of fault on either side, despite a plethora of charges and countercharges in the testimony, in effect found that the wife was not shown by the weight of the evidence to be the injured party. That finding is the primary point presented by the direct appeal.

We cannot say that the chancellor was wrong. Some two years before the separation Mrs. Raney decided to leave the Methodist Church, to which both parties belonged. She became a member of a sect that espouses “speaking in tongues,” faith healing, the belief in demons, and other tenets not generally accepted by more orthodox denominations. No one doubts a person’s right to adopt whatever religious beliefs she chooses, but in this instance Mrs. Raney’s new beliefs and practices became, day and night, such obsessions that she lost any real sense of responsibility toward her husband or toward her children. As the chancellor said: “Mrs. Raney was not willing to compromise at all on her beliefs under any circumstances, and Mr. Raney could not accept a change in his way of life and what he thought the family ought to be.” We do not imply that Raney was blameless with regard to the ultimate breakdown of the marriage, but we find it impossible to say that Mrs. Raney is shown by the weight of the evidence to have been the injured party.

That being so, the chancellor had a fairly broad range of discretion in arriving at an equitable amount of alimony for Mrs. Raney. Raney’s income and assets are both related to a family-owned investment firm and are hard to evaluate with anything like precision, but his resources do appear to be sufficient to provide for all members of the family. Thus the issue of alimony relates primarily to Mrs. Raney’s needs, having regard to the couple’s past standard of living. We must also bear in mind that Mrs. Raney will apparently receive more than $125,000 from the sale of the two properties owned jointly. Upon the testimony as a whole we do not feel able to improve upon the chancellor’s award of alimony, either by increasing it or by reducing it.

The appellant also assigns as error the chancellor’s failure to allow her to share the rentals from a commercial building in downtown Little Rock in which Raney has a one-fourth interest. There is outstanding a 20-year lease, expiring on July 30, 1978. Mr. and Mrs. Raney both signed the lease as lessors, along with the owners of the other three-fourths interest. Raney testified that his share of the rentals, amounting to $488 a month, had been used through the years for the maintenance of the family.

The chancellor correctly refused to award the appellant half the future rentals as a matter of contractual right. The facts in the case relied upon, Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d 28 (1975), are readily distinguishable. There in the sale of property owned by the husband alone the notes for the purchase price were drafted by an attorney and were made payable to the husband and wife jointly. Adhering to our earlier cases, we held that a tenancy by the entirety was created, so that the wife became an equal co-owner of the notes.

That case would be in point here if the rentals due under this lease had been evidenced by notes payable jointly to Mr. and Mrs. Raney. That, however, is not the case. The lease merely provides that the rents are payable to the lessors, without even reciting the undivided interests of the three owners. Over a 20-year period Raney’s share of the rents would total $117,120. It would be wholly unrealistic to hold that Mrs. Raney, merely by signing the lease, obtained an absolute contractual right to half those rentals for the term of the lease. Presumably her signature was added to the lease to satisfy the lessee about her agreement to the transaction. Mrs. Raney had the burden of proving the claim she now asserts, but there is no testimony whatever about the circumstances that attended the execution of the lease. All we have is the bare lease itself, which does not sustain the present claim.

As cross-appellant, Raney questions the trial court’s direction that he carry $100,000 of life insurance for Mrs. Raney’s benefit. At the time of the trial Raney had in force $149,000 of life insurance, which he described as mostly paid up. We regard this provision in the decree as being simply a way of awarding Mrs. Raney an interest in her husband’s property.

Counsel state perfunctorily that they know of no precedent for such an order, but we have frequently reviewed decrees providing for the continuance or assignment of insurance policies in favor of the divorced wife or the children. Such an existing policy is property. Understandably, courts elsewhere have frequently recognized their power to direct that the husband in a divorce case maintain life insurance for the benefit of the wife. Bildner v. Bildner, 219 So. 2d 749 (Fla. App., 1969); Cooley v. Cooley, 320 Mich. 209, 30 N.W. 2d 840 (1948); Shomaker v. Shomaker, 166 Neb. 164, 88 N.W. 2d 221 (1958); Williams v. Williams, 44 Wis. 2d 651, 171 N.W. 2d 902 (1969).

Such a provision is particularly appropriate in this case. Raney’s principal asset is his interest in the family-owned investment company. Not only is this property hard to evaluate, but also Raney’s interest might not be readily subject to sale without undue hardship to him. In the circumstances the chancellor’s decision to award the wife an interest in the existing life insurance rather than in other property is a sensible and practical solution to the problem of making a fair property allowance to the appellant.

As to the attorney’s fee allowed in the court below, we do not consider it excessive and allow an additional $3,000 with regard to counsel’s services in this court.

Affirmed.

Hickman, J., disqualified.

Harris, C.J., and Fogleman and Byrd, JJ., dissent in part.

John A. Fogleman, Justice,

dissenting in part. I respectfully dissent from the court’s affirmance of the decree, insofar as the rentals are concerned. Appellant signed the lease as a lessor. She is not mentioned in the lease in any other capacity. I do not understand what the majority uses as a springboard to the presumption that appellant signed “to satisfy the lessee about her agreement to the transaction.” Even when I read between the lines, I cannot find it. About what did the lessee want to be satisfied.as to her agreement? Neither the lease nor the acknowledgment mentions dower. In the acknowledgment appellant is named as a lessor along with the other signers in that capacity.

The use to which the rentals had always been put is consistent with her claim. This, along with the bare lease, in my opinion, does sustain appellant’s position. As a matter of fact, I do not agree with the majority that the bare lease does not sustain her position. I concede that Ramsey v. Ramsey, 259 Ark. 16, 531 S.W. 2d 28 can be distinguished on the facts. But I submit that the distinction made on the basis that a note was given in Ramsey and not given here is like that of “tweedledee” from “tweedle-dum.” Of course, this lease did not convert the title to the land into a tenancy by the entirety. But the entitlement to rents is something else. Apparently, the majority would hold that appellant’s position was correct if a note had been given for the rent in which appellant was a payee (or would it, in addition, have to be drawn by an attorney?).

In case of dispute about default by the lessee in the payment of rent, could anyone doubt for a moment that appellant would have been a necessary party to an action for collection of rent from the lessee? Even though the husband was the owner of the property the wife named in a lease of the property has the legal capacity to sue and must be joined as a necessary plaintiff in an action to recover rent, as the action is maintainable by the joint lessors. Pollack v. House & Herman, 84 W. Va. 421, 100 S.E. 275 (1919). See also, Bowen v. West Virginia Gas Corp., 121 W. Va. 403, 3 S.E. 2d 629 (1939). Where the lessee promises to pay rent to someone other than the owner of the leased property, the person to whom the rent is payable under the lease can enforce the promise. Schnider v. White, 12 Or. 503, 8 P. 652 (1885); Toan v. Pline, 60 Mich. 385, 27 N.W. 557 (1886). In such a case, the party to whom the rent is payable can sue in his own name, without an assignment. Toan v. Pline, supra. One named as the lessor, in a lease, even though not the owner of the property may maintain an action for rent in his own name. Johnson v. Watkins, 26 Ga. App. 759, 107 S.E. 341 (1921). See also, Warr v. McLeroy, 48 Ga. App. 801, 173 S.E. 767 (1934).

Rent can be severed from the reversion by the act of the lessor who has the right of reversion. Deming Investment Co. v. Bank of Judsonia, 170 Ark. 65, 278 S.W. 634. Although appellee held the title to the leased property interest, he effectively severed the right to rent, insofar as his interest was concerned by making the rent payable to himself and his wife. Assignment of rents need not be in any particular form. See Silverstein v. Oakland Title Insurance & Guaranty Co., 122 Cal. App. 73, 9 P. 2d 846 (1932). The lease agreement itself was sufficient to put the lessee on notice that rents were due to appellant as well as to the other lessors. The lessees could not, in an action by her, or to which she was a party, have denied her title. Clark v. Long, 25 Ga. App. 807, 105 S.E. 654 (1921); Johnson v. Watkins, supra. Accord, Garrett v. Edwards, 168 Ark. 243, 269 S.W. 572; Bass v. Willey, 216 Ark. 553, 226 S.W. 2d 980; Brewer v. Keeler, 42 Ark. 289.

I agree with appellant that she was entitled to one-half of the rents accruing under the lease after the filing of her complaint and would modify the decree of the trial court to so provide.

I am authorized to state that the Chief Justice joins in this opinion.

Conley Byrd, Justice, dissenting in part. I concur in all of the majority opinion except the part that affirms the trial court’s decree providing:

“Thomas D. Raney shall furnish and pay for life insurance policies on his life providing $100,000.00 in benefits, free and clear from the claim of debt or lien, to Jacqueline Raney, payable upon the death of Thomas D. Raney, until her death or remarriage.”

As can be seen the foregoing portion of the decree does not make a property award to appellant. It does nothing more nor less than furnish security for the payment of alimony after the death of the husband. If the wife predeceases the husband or remarries, the life insurance requirement ceases by the very terms of the decree set out above. Neither is the requirement based upon life insurance in force which was carried for the wife’s benefit because the proof shows that the appellant was not a beneficiary of any of the $149,000.00 in life insurance carried by appellee. Actually the proof shows that the $149,000.00 in policies had a cash surrender value of $80,000 or less and that appellee had borrowed $73,000 on the life policies.

The statement by the majority that “we have frequently reviewed decrees providing for the continuance or assignment of insurance policies in favor of the divorced wife or children,” does not carry the citation of any authority. I suppose the majority is referring to those cases in which the parties mutually agree among themselves that the husband will carry a policy for the benefit of the wife or children but that of course does not mean that the courts of this State have the authority to require a husband and father to amass an estate for a divorced wife or for his children.

The great majority of the courts that have had an occasion to consider the authority of the divorce court to require a husband to carry life insurance for the benefit of a divorced wife point out that in the absence of a statute or an agreement of the parties the court has no such authority. See Ehrler v. Ehrler, 328 N.Y.S. 2d 728 (1972); Menor v. Menor, 154 Colo. 475, 391 P. 2d 473 (1964); Kunc v. Kunc, 186 Okla. 297, 97 P. 2d 771 (1939), and Todd v. Todd, 311 S. 2d 769 (Fla. App. 1975).

In Ehrler v. Ehrler, supra, the court pointed out the “authority to make an award of alimony or of child support in a matrimonial proceeding is derived from statute, not from the common law. . . .” In holding that the court was without statutory authority to require the husband to continue in force, for the benefit of his divorced wife, certain policies of life insurance the court stated:

“. . . absent such express statutory provision, or agreement of the parties that the allowance be a charge against the husband’s estate after his death, an award whether of alimony or child support terminates on the husband’s death . . . such being the usual rule, and the premiums of life insurance being paid to provide not the ‘present maintenance’ which the statutory provisions are designed for, but maintenance after the husband’s death, judgment requiring payment of life insurance premiums is held not to fall within the ‘support’ authorized by § 236 or the ‘care, education and maintenance’ authorized by § 240. . . .”

In Kunc v. Kunc, supra, the trial court had ordered the husband to carry life insurance for the benefit of the divorced wife and his son. In holding that part of the trial court’s decree void, the court stated:

“As to the power of courts to award the care and custody of minor children and make orders for their support, education, etc., the authorities are divided as to whether courts under their general chancery powers have jurisdiction and power in the absence of statute conferring such power.
In most states this power is conferred by statute in connection with statutory provisions concerning divorce. Where such power is conferred by statute, the statutory provisions control.
Section 671, O.S. 1931 L. 2 Okl. St. Ann. § 1277 provides: ‘When a divorce is granted, the court shall make provision for guardianship, custody, support and education of the minor children of the marriage, and may modify or change any order in this respect, whenever circumstances render such change proper either before or after final judgment in the action.’
It will be observed that said section limits the power of the court to make provisions for guardianship, custody, support and education of the minor children.
There is no authority or power in the court to require the husband and father to build up an estate, by insurance or otherwise, to be paid to a child after it attains its majority.”

In Menor v. Menor, supra, the trial court had directed the husband to keep in force SI 50,000 life insurance policy for the benefit of his divorced wife. In reversing the trial court, it was stated:

“There is no authority in this jurisdiction under which a husband may be compelled to carry insurance on his own life to the end that a divorced wife may from that source continue to receive alimony after the death of the husband. When a divorce is granted, the wife may be entitled to a share in the property of the husband and she may be entitled to receive alimony in accordance with her need and the husband’s ability to pay. This obligation to pay alimony ends with death and a court has no power through the device of an insurance policy to require payments which could only be upheld as alimony to continue after death. This situation is clearly distinguishable from those cases in which the parties to a divorce action have settled their peoperty rights by contract, the terms of which are incorporated in the decree.”

Three of the four cases cited by the majority do not support the majority’s position. In Bildner v. Bildner, 219 S. 2d 749 (Fla. App. 1969), cited by the majority, the trial court had required the husband to continue in effect a $50,000 life insurance policy with the divorced wife as a beneficiary. With respect to that requirement the court there held:

“We find merit in the appellant’s contention that the court committed error in the provision of the amended decree which required the husband to pay annual premiums on an insurance policy on his life, which was owned by the wife and on which she was the named beneficiary. The substantial premium payments which the husband was ordered to continue for the rest of his life were not alimony payments, but, as recited in the amended decree, that provision was inserted to provide for the wife after the husband’s death, and it was referred to in the amended decree as being “in addition” to awarding (lump sum) alimony.”

In accord see Todd v. Todd, supra.

Cooley v. Cooley, 320 Mich. 209, 30 N.W. 2d 840 (1948), does not support the majority’s assertion for there the court had before it a statute upon which it relied. That statute, Stat. Ann. 1947 Cum. Supp. § 21.131, provided:

“Hereafter every decree of divorce shall determine all rights of the wife in and to the proceeds of any policy or contract of life insurance, endowment or annuity upon the life of the husband in which she was named or designated as beneficiary.”

Not only do we not have such a statute, but in the case before us the wife was not a beneficiary in any of the existing policies.

Williams v. Williams, 44 Wis. 2d 651, 171 N.W. 2d 902 (1969), also cited by the majority does not support the statement in the majority opinion. In that case the husband was not directed by the trial court to provide the life and health insurance protection that he had provided during the marriage and on appeal the trial court was affirmed.

Alimony in Arkansas is controlled by Ark. Stat. Ann. § 34-1211 (Repl. 1962), which provides: “When a decree shall be entered, the court shall make such order touching the alimony of the wife ... as from the circumstances of the parties and the nature of the case shall be reasonable ... .” In Birnstill v. Birnstill, 218 Ark. 130, 234 S.W. 2d 757 (1950), we stated:

“ . . . alimony is not a sum of money, nor a specific proportion of the husband’s estate given absolutely to the wife, but is a continuous allotment of sums, payable at regular intervals, for her support from year to year, and continues only during the joint lives of the parties, or, in case of divorce from the bonds of matrimony, until the wife marries again, and should be a reasonable and certain sum, having in regard her state and condition in life, and the estate and income of her husband, and be payable at stated and proper times.”

Consequently, I submit that the trial court’s direction to appellee to carry $100,000 in life insurance benefits is neither property rights nor “present maintenance” but in effect maintenance after the husband’s death and as such was beyond the trial court’s authority. It must be remembered that after the divorce, the appellant no longer had an insurable interest in her husband’s life, Ark. Stat. Ann. § 66-3204 and Ark. Stat. Ann. § 66-3227 (Repl. 1966). Under Ark. Stat. Ann. § 66-3227(2), she certainly had no vested interest in the existing policies.

For the reasons stated I respectfully dissent to the affirmance of the decree requiring the husband to carry the $100,-000 life insurance policy.


text:
    Glen DIXON v. Charles A. LEDBETTER and wife
    77-114
    561 S.W. 2d 294
    Opinion delivered February 13, 1978
    (In Banc)

      Bill F. Doshier, for appellant.

      Ledbetter & Associates, Ltd., by: Thomas D. Ledbetter, for appellees.
   George Rose Smith, Justice.

In 1974 the appellant, a residential contractor, built a $60,000 home in Harrison for the appellees, pursuant to plans and specifications furnished by them. After the Ledbetters had occupied the house for a few months several comparatively minor defects developed. The defects were not corrected to the satisfaction of the Ledbetters, who eventually brought this suit against the contractor for damages. Dixon’s appeal from a decree in favor of the Ledbetters brings up for review the chancellor’s rulings primarily with respect to two defects.

First, a concrete driveway, not reinforced with steel or wire, was poured upon fill ground varying up to 12 feet in depth. The fill settled and cracked the driveway to such an extent that even Dixon testified that about half of it would have to be replaced. Dixon insists, however, that he did the work in the manner that was customary in the community and that he told the Ledbetters in advance that the fill would settle.

That a contractor uses customary methods is a matter to be considered, but that standard does not necessarily meet the test of ordinary care. AMI Civil 2d, 1204 (1974); Baker v. Pidgeon Thomas Co., 422 F. 2d 744 (6th Cir., 1970). Moreover, a contractor must use reasonable judgment in building on fill ground and may be expected to give warning if the soil is inadequate. Rubin v. Coles, 253 N.Y.S. 808, 142 Misc. Rep. 139 (1931).

Here the weight of the proof is not clearly contrary to the chancellor’s finding that Dixon was at fault. Dixon testified that he told the dirt hauler, Youngblood, that he needed to pack the particular fill more with his tractor, but Youngblood denied having received such instructions. Youngblood also testified that settling could be controlled to some extent by means of a roller, but Dixon conceded that no roller was used. Dixon apparently told the Ledbetters that the fill would settle, but it is clear that he did not warn them of the possibility that the driveway might be so seriously damaged as to require partial replacement. The evidence supports the conclusion that some more explicit warning should have been given if Dixon intended for the Ledbetters to assume the risk of serious settling — a matter about which he may fairly have been expected to be better informed than the Ledbetters.

Second, there is proof indicating that two balconies were not properly built, in that the slope was not sufficient to cause rain water to drain away from the house. Dixon’s insistence that he merely followed the plans is not tenable. The plans have not been abstracted and would hardly have prohibited the contractor from incorporating sufficient slope in the construction.

The Ledbetters’ expert witness, Landis, recommended that the defect be corrected by the installation of a copper pan (apparently simply a flanged sheet of seamless copper) on the plywood floor of each balcony. The sheets could be walked on and would conduct water away from the house. It is not a valid objection that such sheets were not included in the plans, for their purpose is to correct defects caused by faulty construction. Dixon disputes the existence of the defects and has not suggested a preferable remedy.

It is argued that the chancellor improperly relied upon hearsay testimony. Landis, an expert in remodeling and repairing houses, testified that it would cost $400 to repair each balcony. He said that. Conward Allen had given him a figure of $250 to make each pan. Upon objection to this testimony as being hearsay, the court ruled: “I think if he is qualified in the business, he may give his estimate of what it would cost to make the corrections. He will not be permitted to say what somebody else told him. You can cross-examine him on whether or not he is an expert.”

The court’s ruling was right. We have previously held that at times an expert may base his opinion on facts learned from others, despite their being hearsay. Arkansas State Highway Commn. v. Russell, 240 Ark. 21, 398 S.W. 2d 201 (1966). That case-law principle has now been made more explicit by the Uniform Rules of Evidence, which were effective before this case was tried. Ark. Stat. Ann. § 28-1001 (Supp. 1977). Rule 703 provides:

Basis of opinion testimony by experts. — The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by him or made known to him at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence.

Professor Field has explained the purpose of the rule, especially the final sentence:

The plain intention of the rule is to bring judicial practice into line with the practice of experts themselves when not in court. For example, a physician in his own practice bases his diagnosis on information from a variety of sources such as hospital records, X-ray reports, statements by patients, and reports from nurses and technicians. Most of these could be presented in the form of admissible evidence, but only through a time-consuming process of authentication.

Field, A Code of Evidence For Arkansas?, 29 Ark. L. Rev. 1, 30 (1975).

The test stated in the rule is whether the expert’s reliance is reasonable. It was not prima facie unreasonable for the expert witness in this case to ascertain the cost of the required pieces of sheet metal by consulting a supplier. As Field points out, the same cost figure could have been shown by calling the supplier as a witness. That cumbersome procedure is now readily avoidable; for the expert witness can be cross-examined about his expertise in the matter and about the reasonableness of a supplier’s estimate. No such inquiry was made on cross-examination; so no error appears.

We find no merit in the argument that the court should have approved a mere temporary repair of one of the balconies. The appellant’s final point, that the court should not have allowed the Ledbetters to recover $107 paid to Landis for certain unspecified repairs, is also without merit. Dixon seems to have had ample opportunity to make the repairs himself, and the amount is not shown to be excessive.

Affirmed.

Fogleman and Byrd, JJ., dissent.

John A. Fogleman, Justice,

concurring in part, dissenting in part. I do not agree that the preponderance of the evidence supports the holding that the contractor was liable on account of the settling of the driveway. Appellant testified that he told appellees that the driveway would settle for as much as a year, but that they told him they did not want to wait a year for the settlement to take place before the concrete driveway was put on the fill. The testimony of appellee Charles A. Ledbetter on the subject was a virtual admission that appellant’s subsequent testimony on the subject was correct. The settlement was a matter of “several inches” on a fill that sloped from the street level to the depth of the basement at the opposite end. I don’t know what there is about the evidence that required a more explicit warning.

Otherwise, I agree with the result reached by the majority-

I would disallow the award of damages for replacement of the driveway.

I am authorized to state that Mr. Justice Byrd joins in this opinion.


author: George Rose Smith, Justice.

text:
    Frank HENRY et al v. Eddie POWELL, Mayor, et al
    77-164
    561 S.W. 2d 296
    Opinion delivered February 13, 1978
    (In Banc)

      John T. Harmon, Tommy Russell and Judith Rogers, by: John T. Harmon, for appellants.

      Jim Hamilton, City Atty., for appellees.
   George Rose Smith, Justice.

The basic question here is whether the regular judge of a chancery court can, within 90 days after the entry of an order made by a special judge in the regular judge’s absence, vacate the special judge’s order and set the matter down for reconsideration. We hold that the regular judge does have that power. In that view there is as yet no final appealable order; so the appeal must be dismissed.

This is a taxpayers’ suit brought by the appellants against the City of North Little Rock and its officers to obtain refunds of overpayments made by customers of the city’s electrie department. On December 30, 1976, the regular chancellor, Judge Bullion, entered a decree directing that refunds be made by the city and (as far as we can tell from an abbreviated record) refusing to allow an attorneys’ fee to counsel for the plaintiff taxpayers. In response to petitions for a rehearing and clarification of the decree, Judge Bullion, on March 9, 1977, entered a second decree specifying in detail the procedure to be followed by the city in making the refunds. That decree retained jurisdiction of the case for clarification of the decree as it pertained to attorneys’ fees.

On March 7, pursuant to statute, the chief justice of this court had entered an order assigning Judge Van Taylor to the Third Division of the Pulaski Chancery Court for the week of March 28 through April 1, apparently to hold court during the absence of Judge Bullion. Ark. Stat. Ann. § 22-142 (Supp. 1977). That order did not assign Judge Taylor to this case or to any other particular case, there being no suggestion that the assignment was in response to Judge Bullion’s disqualification to act in any matter.

On March 28, Act 822 of 1977 became effective, authorizing the allowance of attorneys’ fees from monies recovered in taxpayers’ actions. Ark. Stat. Ann. § 84-4601 (Supp. 1977). On April 1 a request for the allowance of attorneys’ fees in this case was presented to Judge Taylor. After a hearing at which no stenographic record was made, Judge Taylor entered an order allowing to the three attorneys for the taxpayers a fee of $95,884.31, being 15% of the total amount to be refunded.

On April 12 the city and its officers filed a petition for a rehearing of Judge Taylor’s order of April 1. That petition for rehearing was presented to Judge Bullion, who entered an order on May 4 setting aside Judge Taylor’s order and fixing a date in October for a reconsideration of the matter. The appellants at once filed a notice of appeal and have brought the case to this court, for a review of Judge Bullion’s order of May 4.

We have no doubt about the regular judge’s authority to set aside the special judge’s order, within 90 days. At common law, as exemplified by our own cases, a judge had unlimited control over his judgments and orders during the same term of court. Within that time he could set aside his own judgments at will, without any motion having been filed by a party to the case and without notice to anyone. Security Bank of Branson v. Speer, 203 Ark. 562, 157 S.W. 2d 775 (1942). There was no requirement that the court’s action conform to statutes relating to the vacation of judgments after the expiration of the term. McDonald v. Olla State Bank, 192 Ark. 603, 93 S.W. 2d 325 (1936). The purpose of the rule, of course, was to permit a judge to correct his own errors without putting the parties to the expense and delay involved in an appeal.

Essentially, the common-law rule still prevails in Arkansas. Terms of court in chancery have been abolished, but the repealing law specifically provides that for 90 days the chancellor has the same authority that he would previously have had during the same term of court. Ark. Stat. Ann. § 22-406.4 (Supp. 1977).

The appellants, however, citing a brief annotation in 11 A.L.R. 2d 1108, argue that a judge is powerless to set aside an order made by a different judge. The few cases there cited turn upon statutes quite different from ours. As a practical matter, there is no reason for such a distinction under our statutes and cases. As we have said, the power to act during the term exists to avoid the necessity for an appeal when a judge decides upon further reflection that he has made a mistake. That power to act should be vested in someone. If the judge who made the order retires or becomes disabled or dies, or if his authority as a special judge comes to an end, the corrective power must logically and reasonably pass to his successor, else we have a government by individuals rather than by a continuing system of law. It follows that the power to act after Judge Taylor’s authority expired necessarily passed to Judge Bullion.

Judge Taylor’s order having been set aside, the case is still pending for decision; so there is no final appealable decree. Hawkeye Tire & Rubber Co. v. McFarlin, 146 Ark. 491, 225 S.W. 2d 632 (1920). An especially pertinent precedent is Dodd v. Bonds, 220 Ark. 951, 251 S.W. 2d 587 (1952), where, as here, a special chancellor’s order was set aside by the regular chancellor. We dismissed the appeal for want of a final order.

Appeal dismissed.

Hickman, J., disqualified.


author: George Rose Smith, Justice. Conley Byrd, Justice,

text:
    Walter Edward HOGUE v. Betty Jean HOGUE
    77-167
    561 S.W. 2d 299
    Opinion delivered February 13, 1978
    (In Banc)

      Hobbs & Longinotti, by: Richard W. Hobbs, for appellant.

      William W. Green, for appellee.
   George Rose Smith, Justice.

This appeal brings up for review an order of the chancery court directing the appellant to continue to make payments of $40 a month for the support of his 19-year-old daughter, a college student.

Mrs. Hogue obtained an uncontested divorce in 1962. The decree ordered the father to pay $35 a week for the support of the couple’s four minor children. In 1970 or 1971, in a proceeding before the circuit judge, the father was permitted to reduce his payments to $40 a month (without an actual modification of the original decree). The father became totally disabled in 1971, after which the monthly $40 payments were made by his present wife, who is employed.

In November of 1976 the father filed his present petition for discontinuance of the child support payments, on the ground that all four children were past the age of 18. The mother resisted the petition, asking that the support payments be continued while the youngest daughter is in college and also seeking judgment for arrearages of $6,700 that had accrued during the preceding five years. After a hearing the chancellor ordered that the $40 payments continue through the daughter’s first four years in college, but he refused to enter judgment for the arrearages.

The father made a prima facie case for discontinuance of the support payments. A parent is not under an absolute legal obligation to support an able-bodied child who has reached the age of majority. Riegler v. Reigler, 259 Ark. 203, 532 S.W. 2d 734 (1976); Matthews v. Matthews, 245 Ark. 1, 430 S.W. 2d 864 (1968); Worthington v. Worthington, 207 Ark. 185, 179 S.W. 2d 648 (1944). Any order for support beyond that age must be responsive to the particular circumstances of the case. Here it is undisputed that the father is totally disabled, that he owns no substantial property, and that for several years his present wife has supported him and made the monthly payments.

On cross-examination of the father it was brought out that he had not applied for Social Security disability benefits. The indications from the meager testimony are that the father will not consult doctors because he is afraid he has cancer and that an application for Social Security benefits would be unavailing without the support of medical evidence of disability.

We think the chancellor went too far in ordering continuation of the payments. The petitioning father had, as we have seen, made a prima facie case for a discontinuance. He had never applied for Social Security benefits and could not be expected to come to court prepared to meet that issue, which had not been raised by the pleadings. Entitlement to Social Security disability benefits depends upon such matters as the applicant’s contributions to the system and the extent of his disability. See 42 USCA § 423 (1974). The petitioner’s prima facie case shifted to the respondent the burden of going forward with the proof. She offered no testimony pertinent to that issue, which evidently was not contemplated by either party before the hearing. If an award of continued support is to be made in reliance upon Social Security benefits, the facts should be developed by proof. Otherwise there is no way to determine the proper amount to be allowed or to consider a possible change of circumstances in the future.

The appellee’s failure to file a brief in this court is an abandonment of her cross-appeal from the trial court’s refusal to enter judgment for the arrearages. Salsbury v. Oliphant, 216 Ark. 190, 225 S.W. 2d 329 (1949).

Reversed and remanded for further proceedings.

Byrd and Hickman, JJ., concur.

Conley Byrd, Justice,

concurring. As I read Acts 1975, No. 892 [Ark. Stat. Ann. § 57-103 (Supp. 1977)], a person 18 years of age is an adult for all purposes. Since the proof here shows that the daughter was a normal 18 year old daughter, it would follow that the father would owe no legal duty of support. Any social security benefits accruing to the adult daughter as a result of her father’s disability is a matter over which the trial court would have no jurisdiction in a divorce proceeding, Upchurch v. Upchurch, 196 Ark. 324, 117 S.W. 2d 339 (1938).

For the reasons stated, I concur in the result of the majority.

Hickman, J., joins in this concurrence.


text:
    Clinton E. LUCKES v. Genevieve N. LUCKES
    77-170
    561 S.W. 2d 300
    Opinion delivered February 13, 1978
    (Division I)

      Franklin Wilder, for appellant.

      Robert S. Blatt, for appellee.
   George Rose Smith, Justice.

This post-divorce proceeding concerns alimony that is due or is to become due.

The divorce decree, entered in 1969, directed the appellant husband to pay permanent alimony of $150 a month. Later the appellant moved to California and fell behind in his payments. The appellee then invoked the Uniform Reciprocal Enforcement of Support Act and obtained an order in California directing her former husband to pay $65 a month into the registry of the California court, which forwarded those payments to the clerk of the Sebastian chancery court, in Arkansas.

In June of 1976 the appellee filed a petition in Arkansas asking that her former husband be held in contempt of court and that the arrearages be reduced to judgment. Notice of the petition was served by certified mail, but the appellant did not respond or appear. On July 6 the court entered a decree for arrearages of $1428 and directed that execution and garnishment be issued.

On July 30 the appellee filed a motion for a nunc pro tunc order correcting the July 6 decree. It was asserted that by a clerical error the arrearage had been found to be $1,428 when in fact it was $5,782.91. No notice of that motion was served on the appellant. On August 3 the motion was presented to the chancellor, who found that a clerical error had in fact occurred and entered a nunc pro tunc order, as requested, fixing the arrearage at $5,782.91. Writs of garnishment were issued against the appellant’s retirement pay, he being a retired army officer. The appellant then employed counsel in Arkansas and sought relief on three grounds, which we discuss separately..

First, it is argued that the nunc pro tunc order of August 3 should be set aside as having been entered without notice. The trouble with that argument is that no prejudice is shown, because the order was correct. Nothing would be gained by setting aside the order and immediately re-entering it.

A true clerical error is shown. Such an error is essentially one that arises not from an exercise of the court’s judicial discretion but from a mistake on the part of its officers (or perhaps someone else). Williams, Standridge & Deaton v. State, 229 Ark. 42, 313 S.W. 2d 242 (1958). What happened here was this: The court clerk keeps a record of alimony payments that are made through his office. When the clerk was asked for a statement of the appellant’s arrearages, a mistake was made in adding the figures on an adding machine. That led to the incorrect figure of $1,428. No exercise ofjudicial discretion was involved; the chancellor simply accepted the figure as correct. The nunc pro tunc order then modified the decree to show the correct amount. At the hearing from which this appeal comes, counsel for the appellant examined the figures and stated with candor: “As far as I know, Your Honor, that is correct.” Thus no prejudice appears.

Second, it is argued that the Arkansas court should have given full faith and credit to the California court’s order directing the appellant to pay only $65 a month. The transcript of the California proceedings shows, however, that the court did not purport to modify the Arkansas support order. It simply investigated the resources of the rival litigants and concluded that $65 a month was all that the appellant should be required to pay through its office. That procedure correctly interprets the Uniform Act, which provides:

No order of support issued by a court of this state when acting as a responding state [here California] shall supersede any other order of support but the amounts for a particular period paid pursuant to either order shall be credited against amounts accruing or accrued for the same period under both. [Ark. Stat. Ann. § 34-2430 (Repl. 1962).]

The California payments were therefore properly credited in reduction of the Arkansas obligation, no issue of full faith and credit being presented.

Third, it is argued that the original award of alimony should be reduced in the light of changed circumstances. The appellant, however, did not appear at the hearing below. Consequently the only proof offered in his behalf, documents relating to his health and income, was properly excluded as hearsay. The chancellor offered to postpone the alimony question to some later date, but the appellant’s counsel declined the offer, preferring to bring all three points up for review in one appeal. The scant competent evidence that was introduced does not enable us to say that the chancellor was wrong in refusing to modify the original award of alimony.

Affirmed.

We agree. Harris, C.J., and Hickman and Howard, JJ.


text:
    Gary HARRINGTON v. CITY OF GREENBRIER et al
    77-205
    561 S.W. 2d 302
    Opinion delivered February 13, 1978
    (Division I)

      Henry & Graddy, by: Larry E. Graddy, for appellant.

      Clark & McNeil, for appellees.
   George Rose Smith, Justice.

Harrington brought this action against the city (or town) of Greenbrier and its sewer contractor to recover damages for trespass. The complaint alleges that the defendants, without having obtained an easement, entered upon the plaintiff’s lot in Greenbrier and laid a sewer line across the lot, rendering it worthless for the purpose of residential construction and use. This appeal is from a summary judgment for the defendants. The sole question is whether the pleadings and the affidavits left any controverted issue of fact to be submitted to the court or to a jury.

The defendants’ motion for summary judgment and accompanying affidavit completely rebutted the cause of action asserted in the complaint. The defendants attached to the motion a copy of an easement deed by which the plaintiff had granted to the city an easement, ten feet wide, across the property for the installation of sewer lines. The deed recites that the easement shall be located upon such portion of the land as may be selected by the city. In the face of the affidavit and the deed, the plaintiff has failed to show any cause of action against the city or the contractor for trespass.

By counter-affidavit, however, Harrington sought to assert a new cause of action against the city. Harrington stated under oath that the city had obtained his signature to the easement deed by misrepresenting the proposed location of the easement. He said the city represented to him that the sewer line would be constructed along the highway in front of the lot instead of across the middle of the lot.

We may assume, without having to decide, that the plaintiff could assert a new cause of action in his affidavit, without amending his complaint. See Bonds v. Littrell, 247 Ark. 577, 446 S.W. 2d 672 (1969). Even so, this affidavit falls short of achieving that purpose.

Perhaps it might be said, construing the affidavit with great liberality, that the plaintiff is asserting a contract by which the sewer line was to be laid along the highway. If so, however, the proposed testimony, absent fraud, would be inadmissible as parol evidence directly contradicting the language of the written instrument. There has been no suggestion whatever that the cause be transferred to equity for reformation of the deed. Consequently, the affidavit falls short of establishing a cause of action upon the contract.

There remains the possibility, argued in the brief, that the plaintiff’s execution of the deed was induced by deliberate fraud, in that the city had a present intention not to perform its promise. Victor Broadcasting Co. v. Mahurin, 236 Ark. 196, 365 S.W. 2d 265 (1963). In that event, however, the cause of action would be one for deceit, which is an action for a tort outside the contract. Barker v. Lack, 120 Ark. 323, 179 S.W. 493 (1915); Delaney v. Jackson, 95 Ark. 131, 128 S.W. 859 (1910). The legislature has declared that no tort action shall lie against a municipal corporation on account of the acts of its agents and employees. Ark. Stat. Ann. § 12-2901 (Supp. 1977). It follows that the affidavit also falls short of establishing a cause of action in tort. Thus the summary judgment was correct.

Affirmed.

We agree. Harris, C.J., and Hickman and Howard, JJ.


author: John A. Fogleman, Justice.

text:
    CHEROKEE CARPET MILLS, INC. v. WORTHEN BANK AND TRUST CO.
    77-197
    561 S.W. 2d 310
    Opinion delivered February 13, 1978
    (Division II)

      Anderson & Grumpier, for appellant.

      Rose, Nash, Williamson, Carroll, Clay & Giroir, by: George E. Campbell, for appellee.
   John A. Fogleman, Justice.

Appellant Cherokee Carpet Mills, Inc. entered into a contract with Turner-McCoy, Inc. (sometimes referred to as Turner-McCoy and sometimes as T-M), a construction contractor, on October 5, 1972, for the making of certain improvements to appellant’s existing plant for the manufacture of carpets. The contract price was $45,-357. T-M was to furnish all labor and material. T-M was a customer of appellee Worthen Bank & Trust Company. At the time of the contract between Cherokee and T-M, the latter owed the bank $175,000. To secure this indebtedness, T-M had given the bank a mortgage on certain real estate. On October 27, 1972, T-M gave the bank a security interest in all T-M’s contract rights, accounts receivable and the proceeds thereof. On February 15, 1973, Cherokee paid $31,-770 to T-M upon the contractor’s invoice requesting partial payment. The check for this payment was deposited by T-M on February 22, 1973, in a general account carried by it in Worthen Bank. The balance credited to this account after this deposit was $42,500. On February 23, 1973, the bank applied this balance to indebtedness of T-M which matured February 5, 1973. On the same day, the bank informed T-M that it was exercising its right of setoff and demanded that TM furnish it with a list of its accounts receivable, pursuant to the bank’s security interest. The list was delivered by T-M on February 24. It indicated that Cherokee owed T-M a balance of $13,347.

T-M failed to pay many suppliers and subcontractors on the Cherokee job. All but one of them filed liens and foreclosure suits against T-M and Cherokee. Cherokee purchased assignments of the claims of all these materialmen and subcontractors. Thereafter Cherokee brought this suit to set aside the setoff of the T-M bank account. The chancery court denied this relief and we affirm.

Cherokee first contends that Worthen had no authority to deduct the general deposit account of T-M, asserting that the bank had knowledge that the funds belonged to others than T-M. Cherokee concedes that a bank generally has authority to set off a depositor’s account against his matured indebtedness, but argues that this case comes within an exception to this general rule, which prevents the bank from setting off a debtor’s deposit account against his matured debts when the bank has knowledge or can properly be charged with knowledge of the fact that the funds on deposit are a trust fund or that the funds belong to a third person. In Smith v. Security Bank & Trust Co., 196 Ark. 685, 119 S.W. 2d 556, we stated the rule of law applicable as follows:

It is unquestionably the law that a general deposit of money in a bank passes the title to the bank and establishes the relation of debtor and creditor between the bank and the depositor, and because of this relation, the bank is bound by contract to honor the checks of the depositor to the extent of the deposits and becomes liable if it refuses to do so. No principle of law is better established. (Citations omitted.) However, there is an exception to this rule, that exception being that if the bank has notice that the funds deposited do not belong to the depositor, it must dishonor a check drawn by the depositor on the account in payment of his individual debts. If it does honor such checks with knowledge that the funds belong to others than the depositor it becomes liable to the rightful owner of the funds. Neither can the bank appropriate such funds in payment of a debt owing by the depositor to it. In other words, the usual right to set off as against an overdue note of the depositor so much of the deposit as is required to discharge the note does not exist.

The facts in this case do not bring it within the exception. It was stipulated that: the bank knew that T-M was a contractor and that the laws of Arkansas permitted liens to be filed by laborers or suppliers for goods and services used in performance of its contracts; the first time the bank had any specific, actual knowledge of T-M’s contract with Cherokee and of T-M’s outstanding indebtedness to its subcontractors and materialmen was when T-M furnished its list of contract rights and accounts receivable on February 24; T-M maintained the general deposit account, from which it paid all its ordinary business expenses, including payments to subcontractors and materialmen, and a payroll account, from which only those directly employed by T-M were paid.

Cherokee argues that this case is controlled by Smith v. Security Bank & Trust Co., supra, but that case has no application to the facts of this one. There the depositor did business as a cattle auction sales and commission company and made an arrangement with the bank whereby he would deposit with the bank each day the total amount of money received by him for sales of cattle of others and the bank would cash all checks drawn on this account payable to the owners for the full sale price of their respective cattle, less the depositor’s commission of 4%. These sales continued over a period of several months. The bank there appropriated the proceeds of the depositor’s last cattle sale to the depositor’s indebtedness to the bank, after a conference at which it was agreed that the bank would loan the depositor additional money and collect whatever the depositor owed the bank from the proceeds of this sale. In the meantime, the indebtedness of the depositor to the bank was increased by the bank’s honoring checks drawn by the depositor to pay personal obligations. There the bank knew all along that the funds being deposited in this account were derived from sales of cattle that did not belong to its depositor and were trust funds and knew that the very funds it appropriated were of the same nature.

In this case there was neither a trust fund nor ownership of the funds deposited by anyone other than the contractor. A partial payment to a contractor by an owner is not held in trust for subcontractors, materialmen, mechanics or employees of the contractor and, even though the contractor is indebted to such persons, he is the owner of the fund and they are not. In the case of the auctioneer, he was never the owner of any of the proceeds of the sale of the cattle of others, except for that part which represented his commission of 4%. Neither Ark. Stat. Ann. §§ 51-601 nor 51-640 (Repl. 1971) makes such payments a trust fund or puts any title to them in those entitled to liens on the improvement for which the payment is made or the land upon which it is constructed. Furthermore, the bank had no notice that T-M had not paid its subcontractors or materialmen and, actually had no knowledge, or reason to know, that T-M had any contract with Cherokee at the time the setoff was made.

Appellant’s efforts to fit these funds into the framework of a resulting trust also fall short. The definition upon which it relies is contained in Mortenson v. Ballard, 209 Ark. 1, 188 S.W. 2d 749 and 76 Am. Jur. 2d 429, 436, Trusts §§ 196 and 206. To epitomize these definitions a resulting trust presumptively arises where property, real or personal, is bought by one person with money or assets of another, and the title is taken in the name of the purchaser rather than in the name of the owner of the money or assets. These circumstances do not exist here. Even if we consider the definition of a resulting trust in the broad terms stated at 76 Am. Jur. 2d 429, Trusts § 196, we find no resulting trust. There the writer said:

*** Broadly speaking, a resulting trust arises from the nature or circumstances of consideration involved in a transaction whereby one person thereby becomes vested with a legal title but is obligated in equity to hold his legal title for the benefit of another, the intention of the former to hold in trust for the latter being implied or presumed as a matter of law, although no intention to create or hold in trust has been manifested, expressly or by inference, and although there is an absence of fraud or constructive fraud. ***

We take appellant’s position to be that T-M took legal title to the partial payment, but was obligated in equity to hold his legal title for the benefit of the subcontractors and materialmen. Even if we could say this was so, we are still faced with the fact that in the absence of knowledge of the trust relationship by the bank, or of notice sufficient to put it on inquiry, the bank did not become a successor trustee, or liable for the funds deposited. In other words, before the bank would be liable to Cherokee under the resulting trust theory, it would be necessary that it have the same knowledge or notice required to bring it within the purview of the exception to the rule stated in the Security Bank case.

Even in states having statutes declaring funds in the hands of contractors for work on public contracts trust funds for the payment of claims of subcontractors and laborers, it is held that the bank in which the funds are deposited in the contractor’s general account is not charged with the trust or prevented from making an offset of the account against the debt of the contractor to the bank, in the absence of knowledge or adequate notice of the trust and that there was a beneficiary entitled to the fund or some portion thereof. Raymond Concrete Pile Co. v. Federation Bank & Trust Co., 288 N.Y. 452, 43 N.E. 2d 486 (1942), adhered to 48 N.E. 2d 709 (1943); American Lumberman’s Mutual Casualty Co. v. Bradley Construction Co., 129 N.J. Eq. 278, 19 A. 2d 242 (1941).

When a contractor makes a deposit of funds paid to him on a construction contract into his general account in a bank, the bank has a right to rely upon the presumption that the fund is not a trust fund and that no beneficiary is entitled to any part of the money deposited without making any inquiry, until it has knowledge or adequate notice to the contrary. Raymond Concrete Pile Co. v. Federation Bank & Trust Co., supra. There was no showing of either knowledge or adequate notice here.

Cherokee next contends that* by enforcing its security interest in T-M’s contract with Cherokee, the bank assumed responsibility for the performance of the contract, relying upon Ark. Stat. Ann. § 85-9-318 (1) (a) and (b) (Supp. 1977). A complete answer to this contention is that the setoff by the bank was not under its security interest, but was an exercise of its common law right which was supplemented by an agreement set out in the note evidencing T-M’s indebtedness to the bank. It was only after the setoff was made that the bank had notice of any contract between T-M and Cherokee.

Cherokee then argues that the equities favor it, pointing out that, after making the setoff, the bank foreclosed the real estate mortgage after it knew of the claims and liens of the subcontractors and materialmen, without joining appellant or any of these subcontractors or materialmen as parties, and that, as a result, after the bank debt was satisfied in the foreclosure action, the holder of a second mortgage also foreclosed and took charge of the assets then remaining. Appellant makes no convincing argument on this point and cites no authority to sustain its position. We are aware of none, so the matter need not be further considered by us. Dixon v. State, 260 Ark. 857, 545 S.W. 2d 606; Hazen v. City of Booneville, 260 Ark. 871, 545 S.W. 2d 614. We add, however, that we do not feel that Cherokee or the subcontractors or materialmen were either necessary or proper parties to the foreclosure action. The liens were on Cherokee’s property, not on T-M’s.

Since we find no error, the decree is affirmed.

We agree. Harris, C.J., and Byrd and Holt, JJ.


text:
    Roger ROWLAND v. STATE of Arkansas
    CR 77-71
    561 S.W. 2d 304
    Opinion delivered February 13, 1978
    (Division II)

      Douglas L. Wilson, of Adams & Wilson, for appellant.

      Bill Clinton, Atty. Gen., by: Terry R. Kirkpatrick, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

Roger Rowland was found guilty of possession of a controlled substance with intent to deliver. The judgment of conviction must be reversed for at least two reasons.

The first reason for reversal is error of the trial court in holding that physical evidence taken from appellant when he was searched at the time of his arrest was admissible in evidence. On the record before us, this ruling cannot be upheld because of the absence of any evidence establishing the reliability of an informer. At an omnibus hearing, the prosecution stated there was an informer, who would not be called as a witness at the trial and that the privilege of nondisclosure would be claimed.

At the suppression hearing, the state depended upon the testimony of Sheriff Ralph Baker of Madison County to establish probable cause for the warrantless search. Sheriff Baker testified that he received a telephone call at about 2:00 p.m. on January 9, 1976, from a confidential informant who advised him that a 1970 model compact car, dirty green in color and having a dent in the left front door would be coming from Fayetteville through Madison County and passing Huntsville without coming through the main part of town. The informant said that the vehicle would be occupied by Roger Rowland and two high school students and that Rowland would have “speed” or amphetamine pills in his possession. Baker said he advised the Chief of Police of Huntsville of the information he had received by radio and sought that officer’s assistance. Baker said that he also conveyed the information to the State Police. He started toward Springdale on Highway 68, taking Deputy Sheriff Phillip Morgan with him. They met the vehicle between Huntsville and Hindsville. Baker advised the chief of police that he had seen the vehicle and asked him to prepare to stop it. When Baker returned to Huntsville, the chief of police had stopped the vehicle on a side street in Huntsville. Baker said that 10 to 20 minutes elapsed between the time he received the call from the informant until he was advised that the car had been stopped. When Baker arrived at the scene he found only two persons in the vehicle, one of whom was Rowland. A third person was outside the car with Officer Elmer Cook. Baker or Deputy Sheriff Phillip Morgan asked Rowland to get out of the car. Rowland was then searched by Morgan who found drugs consisting of two bags of amphetamine pills and one bag of marijuana in Rowland’s boot. Rowland was arrested.

Thé informant was not present at any time during the pursuit, apprehension and search of Rowland. Baker was not certain as to the means by which his informer obtained his information, but, according to Baker, it was accurate even to the number of pills possessed by Rowland. When asked if his informant was a police officer, Baker reluctantly admitted that he was, but Baker was not required to answer appellant’s attorney’s inquiry whether that officer was an undercover agent, even though that attorney insisted that he was entitled to know where Baker got the information on which he relied for probable cause.

The circuit judge held that the search was on probable cause during exigent circumstances, that the search was substantially contemporaneous with the arrest and that it was immaterial which came first. The only flaw in this finding is that the reliability of the informer and the source of his information were not disclosed. Success of the search did not validate it, if it was unlawful in its inception. Walton v. State, 245 Ark. 84, 431 S.W. 2d 462. The state bore the burden of proving that the search was legal and proper. Asher v. City of Little Rock, 248 Ark. 96, 449 S.W. 2d 933. The validity of a warrantless search is first dependent upon existence of probable cause, unless the search and seizure is incident to a lawful arrest. Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909. Whenever a police officer has reasonable cause to believe that contraband is being unlawfully transported in a vehicle, that vehicle may be the object of a warrantless search, but the right to search and the validity of the search are dependent upon the reasonableness of the cause the searching officer has for believing that the contents of the automobile offend against the law. Perez v. State, 260 Ark. 438, 541 S.W. 2d 915. Reasonable cause exists when the facts and circumstances within the officer’s knowledge, or of which he has trustworthy information are sufficient to warrant one of reasonable caution to believe that an offense is being committed. Perez v. State, supra. Probable cause is evaluated by the courts on collective information of the police, and not merely on the personal knowledge of the officer making the decision. Perez v. State, supra.

In cases involving issuance of search warrants, it has been settled that a valid warrant may issue upon hearsay information, so long as it is shown that there is a substantial basis for crediting the hearsay. Flaherty v. State, 255 Ark. 187, 500 S.W. 2d 87, cert. den. 415 U.S. 995, 94 S. Ct. 1599, 39 L. Ed. 2d 893. This requires more than the statement of a mere conclusion of the informant, however reliable he may be. Lunsford v. State, 262 Ark. 1, 552 S.W. 2d 646. A reviewing court should require no less in evaluating probable cause for a warrantless search, for it must make a substantive determination of reasonableness from all the facts and circumstances surrounding the search which are before the court. Ward v. State, 243 Ark. 472, 420 S.W. 2d 540; Jackson v. State, 241 Ark. 850, 410 S.W. 2d 766. The court may properly conclude that a police officer who conveys information is reliable. Even though some credence and weight should be given to the expertise of an experienced law enforcement officer in making probable cause evaluations, it is still necessary that the reviewing court be given the benefit of the information and circumstances on which the officer determined probable cause for a search made by him. See Wright v. State, 258 Ark. 651, 528 S.W. 2d 905. This does not necessarily require disclosure of the identity of the informant, but it does require the disclosure of enough information to show that the informant was worthy of belief and enough of the information he disclosed to establish probable cause for the search, either when considered alone or along with all other facts and circumstances known to the police. See Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670; Walton v. State, 245 Ark. 84, 431 S.W. 2d 462; Cockrell v. State, 256 Ark. 19, 505 S.W. 2d 204.

In a judicial determination of probable cause, the source of the information and the means of its acquisition must be shown, in order that the judicial office making the determination can judge the reliability of that information and the propriety of an arrest or search based upon it. Since there was no such evidence before the court, the state failed to meet its burden to justify the warrantless arrest and search. See Rodriquez v. State, 262 Ark. 659, 559 S.W. 2d 925.

The state relies upon affidavits by the prosecuting attorney and Sheriff Baker which were filed after the suppression hearing to enable the trial court to determine whether the identity of the informer should have been disclosed under Rule 509, Arkansas Uniform Rules of Evidence. But these ex parte affidavits were furnished to the circuit judge in camera and their content was disclosed to appellant and his counsel only by accident, after this appeal was taken. Appellant has had no opportunity to cross-examine the affiants about the content of these affidavits or to refute them by other evidence. The prosecuting attorney’s affidavit is hearsay upon hearsay. It is couched in language that might indicate that the statements were within the personal knowledge of the affiant, but they obviously were not. It is not totally consistent with Baker’s testimony as to the telephone conversation. In the affidavit, the prosecuting attorney identified the officer who called Baker as J. D. Snow and relates that Snow acquired his knowledge from one Jerry Watkins, that Watkins was a paid informer and that many arrests and convictions had been obtained in Washington County on information supplied by him. The reliability of the informer cannot be established by this kind of hearsay.

The fatal defect in the evidence before the trial court was the failure of the state to show the basis of the informer’s knowledge and, in the case of the real informer, his reliability. No doubt the officer who called Sheriff Baker was reliable, at least presumably, but he was not really a confidential informer, and his identity not having been disclosed, there was no basis for finding him reliable. It was upon his knowledge and information, not that of the searching officers, that the search was made, but the real source and reliability of information of the police officers were not disclosed at the suppression hearing. It appears to have been unknown to the searching officers.

The state argues that the arrest is valid, because Sheriff Baker was instructed to make this arrest by the Washington County officer, who possessed knowledge sufficient to constitute reasonable cause. But the evidence did not suggest that Baker was instructed to make an arrest. It is difficult to see how an arrest could be ordered for an anticipated offense in Madison County before the accused had even reached that county. Still, at the time the suppression motion was granted, there was no showing of the Washington County officer’s knowledge sufficient to constitute probable cause for the arrest.

The state also seeks to justify the search as one contemporaneous with a lawful arrest. It appears from the record that the search of appellant’s person preceded the search of the vehicle. The showing of probable cause for the arrest was insufficient for the same reason that it was not sufficient to show reasonableness of the warrantless search. It should be noted that all the incriminating evidence was discovered in a search of appellant’s person and none, in a search of the vehicle itself. The searching officers testified that two bags of pills and one bag of marijuana were found in appellant’s left boot and that nothing else was found in the vehicle. It is well established that vehicle searches are often justified when searches of the person are not, because of the difference in the right to expectation of privacy. Chadwick v. United States, 433 U.S. 1, 97 S. Ct. 2476, 53 L. Ed. 2d 538.

The evidence of probable cause for the warrantless arrest is insufficient for the same reasons that we found it deficient on the question of reasonableness of the warrantless search.

Appellant requested an instruction advising the jury that it could not infer that he intended to deliver a controlled substance (amphetamines) solely upon the basis of the quantity in his possession, but that they might consider the quantity as some evidence of such intent. The instruction was refused on the ground that it was a comment on the evidence. The failure to give the instruction at appellant’s request was error. The evidence, viewed in the light most favorable to the state, showed that appellant possessed less than the minimum amount that would support such an inference under Ark. Stat. Ann. § 82-2617 (d) (Repl. 1976). The state seeks to sustain the court’s action on the basis of our decision in French v. State, 256 Ark. 298, 506 S.W. 2d 820, but we do not agree that French has this effect. There we applied the rule that a court may not inform a jury that a specific fact shown by the evidence is sufficient to support a certain inference. We are not aware of any prohibition against a court telling a jury that proof of a certain fact, standing alone, will not support an inference that another fact exists.

The question whether Rowland possessed the drugs with intent to sell or deliver was a question for the jury to determine upon consideration of all the facts and circumstances, and appellant’s intent could be shown by circumstantial evidence. The jury had a right to consider the quantity possessed (even though it might be small) and the nature of the possession along with any other pertinent fact in determining appellant’s intention. See Freeman v. State, 214 Ark. 359, 216 S.W. 2d 864; Griffin v. State, 169 Ark. 342, 275 S.W. 665; Ridenour v. State, 184 Ark. 475, 43 S.W. 2d 60. Thus, the instruction was a correct declaration of the law. In telling the jury that it could not find appellant guilty of the charge merely on the quantity in his possession it closely parallels an instruction in Freeman about which we said the defendant had no right to complain, where the charge was possession of intoxicating liquors for the purpose of sale in dry territory. See also, Castell v. State, 151 Ark. 69, 235 S.W. 386. We have also held that an instruction, in a prosecution for selling liquor, was not prejudicial to the defendant, when the jury *was told that they could not consider testimony concerning sales made by the wife and son of the accused at his home for any purpose, unless they were made with the knowledge and consent of the accused, and then only insofar as it shed light on the kind and character of business in which he was engaged. Melton v. State, 165 Ark. 448, 264 S.W. 965.

We have considered a similar matter in cases involving the inference arising from possession of stolen property. We have held that an instruction telling the jury that a certain fact, such as the possession of recently stolen goods, goes to it for its consideration in connection with the other evidence as tending to show the guilt of the accused, does not improperly single out particular evidence or constitute a comment on'[he evidence. Johnson v. State, 254 Ark. 293, 493 S.W. 2d 115; Petty v. State, 245 Ark. 808, 434 S.W. 2d 602.

Appellant also complains of error in the court’s refusal to require disclosure of the identity of Sheriff Baker’s informant and to grant relief because of the failure of the state to fully comply with discovery requirements in respect to reports of scientific tests on the substance found in his possession. These questions are now moot. Through the first trial and the subsequent accidental disclosure, appellant is now as fully informed as he would have been had his requests been granted.

Appellant argues that, in any event, the evidence was not sufficient to support his conviction, because there was no evidence to show his intent to sell amphetamines other than the quantity he possessed, which was less than the amount required to give rise to a justifiable inference of intent to sell, and testimony of two witnesses that they had purchased marijuana from him. We have previously held that evidence of previous sales of one controlled substance is evidence to show intent of the seller to sell another such substance later found in his possession. Cary v. State, 259 Ark. 510, 534 S.W. 2d 230.

Appellant also complains that the evidence of the sales of marijuana was not properly admitted because the times when they took place were not shown. Appellant’s abstract of his objections to the testimony indicated that his attorney merely objected on the “grounds of relevance,” or that the testimony was completely irrelevant. Although the question of remoteness is one of relevance, this objection was not sufficiently specific to call to the court’s attention the objection now urged. Previous sales were relevant to the question of appellant’s intent, as the trial judge advised the jury. Whether they were too remote in time is a matter addressed to the sound judicial discretion of the trial judge, which will be interfered with by this court only when it is clear that the questioned evidence has no connection with any issue in the case. Cary v. State, supra. No doubt the question of the times when previous sales took place will be more fully developed on retrial.

Undoubtedly, some of the statements made in closing argument by the prosecuting attorney were improper. Particularly is this true of his “out-of-the-record” statement that a well-known man in the county died from the use of “just exactly this stuff” and his references to the fact that amphetamine was more addictive than heroin. See Long v. State, 260 Ark. 417, 542 S.W. 2d 742. We are confident that such remarks will not be repeated on a new trial.

The judgment is reversed and the cause remanded for a new trial.

We agree. Harris, C.J., and Byrd and Hour, JJ.


author: Conley Byrd, Justice.

text:
    Wilburn BOWIE v. MISSOURI PACIFIC RAILROAD CO. and J. D. KING
    77-184
    561 S.W. 2d 314
    Opinion delivered February 13, 1978
    (Division II)

      Guy H. Jones, Phil Stratton, Guy Jones, Jr., and Casey Jones, by: Phil Stratton, for appellant.

      Herschel H. Friday -and Frederick S. Ursery, by: Frederick S. Ursery, for appellees.
   Conley Byrd, Justice.

Appellant, Wilburn Bowie brought this action against appellees Missouri Pacific Railroad Co. and its employee, J. D. King, for injuries appellant allegedly suffered to his back on February 14, 1975, while walking along the State Highway # 60 railroad crossing in Conway, Arkansas. After the close of appellant’s evidence, the trial court directed a verdict in favor of the railroad. For reversal appellant contends:

“There is substantial direct evidence, when viewed in a light most favorable to Appellant and when given its highest probative value, that (1) Appellees were negligent in permitting the dangerous substance to remain upon the surface of the pedestrian walkway. The evidence is abundantly clear that the substance on the pedestrian walkway was the proximate cause of Appellant’s injury. There is strong probative circumstantial evidence that the harmful substance was placed on the pedestrian walkway by Appellee’s train of freight cars and allowed to remain there in violation of law. This evidence is clearly shown by the color photographs, Plaintiff’s Exhibit 2 below.
Ark. Stat. (1967 Repl.) § 75-805 prohibits the spilling of loads on highways of this State. And § 75-657 prohibits the deposit on a highway of any substance likely to injure any person. AMI Instructions 601 and 903 each provide that violation of a statute is evidence of negligence. There is strong probative circumstantial evidence that the substance which injured Appellant was deposited upon a highway by Appellee Missouri Pacific Railroad. Section 75-657 (b) required Appellee Missouri Pacific Railroad to immediately remove the substance or cause it to be removed.”

Appellant, who was drawing Social Security disability benefits and had a history of back problems, testified that he was walking on the south side of the crossing and that he did not look at the crossing before he slipped on it. The traffic was heavy and he was watching the traffic when he crossed. The pedestrian crossing was on the north side of the crossing. His foot made a skid mark in the substance when he slipped. He described the substance as a by-product of soy bean meal. It looked as though it came from a railroad car which leaked on the track and crossing. He described the substance as being wet when he stepped on it with a color that blended into the cross ties or boards. He stated that there had been a shower earlier in the morning and that he was crossing at noon.

Phillip Moix, a professional photographer, described the substance as “a yellow substance similar to feed. ” At the time he took the pictures, part of the substance was wet and part was dry. The wet part was more of a yellow color than the dry part.

J. D. King, an employee of the railroad, stated that there was a patrol over the track at the crossing during the day.

Ark. Stat. Ann. § 75-657 (Repl. 1957), affords no relief to appellant because there is no showing that the substance was “any glass bottle, glass, nails, tacks, wire, cans or any other substance likely to injure any person, animal or vehicle upon such highway.” Neither was there a showing that the substance was “destructive or injurious material” which any person would be required to remove.

Neither can appellant rely upon Ark. Stat. Ann. § 75-805 (Repl. 1957) [Acts 1937, No. 300, § 143], which provides: “No vehicle shall be driven or moved on any highway unless such vehicle is so constructed or loaded as to prevent any of its load from dropping, sifting, leaking or otherwise escaping therefrom.” By the definition of “vehicle,” Ark. Stat. Ann. § 75-402 (Repl. 1957), [Acts 1937, No. 300, § 2] “devices . . . used exclusively upon stationary rails or tracks” are excepted from the term “vehicle.”

Finally appellant, relying upon Restatement of Torts § 367, contends that the railroad by maintaining the crossing as a part of State Highway # 60 is subject to liability for bodily harm caused to others by its failure to exercise reasonable care to maintain the crossing in a reasonably safe condition. Here, however, appellant is met with the proposition that before a person can be shown to be negligent it must be shown that the person to be charged is in a position to realize that his conduct involves a hazard to others, Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W. 2d 117 (1963). in other words, negligence is conduct which falls below the standard established by law for the protection of others against unreasonable harm — i.e. it necessarily involves a foreseeable risk, a threatened danger of injury, and conduct unreasonable in proportion to the danger. If we assume that appellant proved, by circumstantial evidence, that the railroad dropped or spilled the yellow substance on the crossing, the evidence fails to show that an ordinary prudent person would foresee an appreciable risk of harm to others. For all that the proof shows the substance in question is no different from the clay that often drops from vehicles in a rural community when crossing a railroad track during the winter months.

Affirmed.

We agree: Harris, C.J., and Fogef.man and Hoet, JJ.