text:
    Netherton v. Davis.
    5-2626
    355 S. W. 2d 609
    Opinion delivered April 2, 1962.

      Sexton <& Morgan, by Sam Sexton, Jr., for appellant.

      Lewis D. Jones, for appellee.
   Paul Ward, Associate Justice.

This litigation arises out of a dispute between International Brotherhood of Electrical Workers, Local No. 700 (hereafter referred to as “Union”) on one side and Lee Davis and Jeff Davis, Partners, d/b/a J. S. Davis & Sons, Contractors (a prime contractor in this instance), and Albert T. Hough, d/b/a Acme Electric Company, on the other side. We will hereafter refer to the Davis partnership as “Davis”, and to the Acme Company as “Hough”. The Union is the appellant and Davis and Hough are the appellees.

Davis, the prime contractor, has a contract with Frez-N-Stor, Inc. to construct a cold storage building in Springdale, Arkansas. Under the contract Davis is to furnish all materials and labor. Hough, as a sub-contractor under Davis, is engaged in doing the electrical work on said building. Davis uses all union labor and has no labor dispute with Union.

On September 25, 1961 members of the Union (not employees of Davis or Hough) carrying signs which read: ‘ ‘ The electrical contractors on this job not paying prevailing wages”, picketed the building construction site.

On September 29, 1961 Davis and Hough filed in chancery court a petition containing in substance the following material allegations — omitting facts above set out: (a) Hough operates an “open shop” (employs some non-union labor) in the performance of his contract as he has a right to do under the “Freedom to Work” Amendment; (b) Davis employs union laborers but they refuse to cross the picket line set up by the Union, and the picket banners are untrue because all electrical employees on the job are receiving union wages; that they (Davis and Hough) are therefore unable to perform their contracts; (c) The pickets have harassed and threatened petitioners’ employees and interfered with their work, all of which amounts to an unlawful effort to force petitioners to enter into an unlawful contract to hire only union labor in violation of the “Freedom to Work” Amendment; and, (d) petitioners are suffering and will suffer irreparable damage for which they have no adequate remedy at law.. Petitioners’ prayer was for a temporary injunction to-restrain Union from picketing. On the same day the-petition was filed the court ordered notice to be given, to Union and set October 4 for a hearing.

On the above mentioned date Union filed an answer which, in addition to certain' denials, contains, in substance, the following allegations: (a) Hough, over a long-period of time, has failed to pay his employees union wages and by subterfuge has tried to conceal that fact; (b) at one time, when Hough was being picketed, he agreed to pay union wages and the pickets were withdrawn, but he failed to comply with that agreement and is not now paying his employees union wages “on the said job”.

After hearing testimony by several witnesses for appellee and one witness for appellant the trial court, made the following findings:

(a) “The finding of the court on the evidence is, that the announced purpose of the picket to call to the attention of the world, in the exercise of their constitutional right of free speech, the fact or the alleged fact that Mr. Hough was not paying prevailing wages was true at the time the picketing commenced, but was not true on last Thursday, September 28th, and is not true today. ’ ’

(b) “The court finds for that reason and on those facts that there exists no reason or purpose for the continuation of the picketing at this time.”

(c) The effect of the picketing as it relates to Davis is “to deprive him of his property without due process of law. . . .”

Then the court entered an order restraining Union from maintaining pickets at the construction site, pending further orders. Union now appeals from the trial court’s order.

One. The first question we consider is whether we should dismiss the appeal because the subject matter of the litigation is moot. We understand from the briefs and statements of counsel that Hough’s job at the FrezN-Stor location (where the picketing was being conducted) has been completed and that there is no longer any reason for Union to picket that place. In appellees’ brief there appears this statement:

“We realize that the issues in this particular case are moot, however the problem involved herein is one of critical importance for all citizens of our state, and we feel that if the court holds that the union is to be permitted this encroachment upon the rights of innocent persons for the purpose of effectuating their labor objective, then there is no retreat left.”

We have concluded that the question involved in this litigation is of great importance to the general public and that it should be decided even though the subject matter is moot. In the recent case of Moorman v. Taylor, 227 Ark. 180, 297 S. W. 2d 103, where an election contest was involved, we said: “Although Perry was defeated by the Democratic nominee for the office, it is not our practice to dismiss such cases as moot, for the public interest demands that substantial questions concerning the election laws be set at rest.” In the case of Cain v. CarlLee, 171 Ark. 155, 283 S. W. 365, this Court, in an election contest, decided the controversial issue even though the subject matter was moot. The reason given for so doing was: ‘ ‘ The questions involved on this appeal were and are of practical importance to the public.” That decision was based on Wilson v. Thompson, 56 Ark. 110, 19 S. W. 321, where the Court construed an act of the legislature prohibiting the sale of intoxicating liquors within three miles of a church or school. See also: Brown v. Anderson, 210 Ark. 970, 198 S. W. 2d 188. It is true that all the above cited cases, except the Wilson case, involved election contests, but they were all decided on the principle of public interest. The same principle applies with equal force to the case under consideration. This Court takes direct and judicial knowledge of the frequency of litigation over labor disputes,, and there can be no doubt of its importance to the public and the general welfare. In this connection it is also noted that, in labor disputes, it is not unusual for the-subject matter to become moot before the legal principles involved can be settled by the courts. So, as in the Moorman case, we elect not to dismiss the appeal because the subject matter is moot.

Two. The Issue. It is necessary to clearly define the exact issue with which we are here concerned. Both the trial court and the appellees appear to have been under the impression that Union’s only grievance against Hough was that he was not paying union wages to his employees who were working on the Frez-N-Stor job. In all fairness it must be stated that the pleadings could be so construed. However, we think that, as the testimony was developed, it became apparent Union’s grievance with Hough was, among others, that he was not paying union wages to his employees who were working; on other jobs in. the same county. In appellants’ brief it was stated that Hough employed at least five electricians at the Frez-N-Stor job and at the time of this litigation his employees were doing electrical work on the Welch Grape Juice job, the Red Comb Mill job, and the Mountain Inn Hotel job — all in Washington County. This statement does not appear to be disputed. During the trial before the Chancellor, Union attempted to show Hough was not paying union wages to his employees on jobs other than the Frez-N-Stor job, but he was not allowed to do so.

For the reasons stated above we proceed to answer the following question: Did Union have the right to picket Hough at the Frez-N-Stor job because he was not paying union wages at that time to his employees working on other electrical jobs in the same county 1 We have concluded that the answer to the above question must be in the affirmative. We base this conclusion on what appears to be the uniform holdings of other jurisdictions, including federal decisions. We mention briefly a few of these decisions.

Newark Ladder & Bracket Sales Co., Inc., et al. v. Furniture Workers Union Local 66 et al., 125 N. J. Eq. 99, 4 A. 2d 49: Appellant conducted a business at South 13th Street, Newark, New Jersey, composed of a retail store, a wholesale store, and a manufacturing plant. Later the manufacturing plant was moved to Kinney Street in the same town. Workers at the Kinney Street plant went on strike, and they picketed the retail and wholesale stores at South 13th Street. The Court held this permissible saying that a union may picket to keep other union men from working and also to keep the public from patronizing the employer. The decision rested on the latter point. Texas State Optical v. Optical Workers Union 24859 et al., Tex. Civ. App. (1953), 257 S. W. 2d 493: Appellant (two Rogers Brothers) operated place of business for sale of glasses and rims at offices at 649 Orleans Street, Beaumont, Texas. These same two brothers and two other brothers manufactured glasses and sold them (wholesale)- two blocks away at 861 Orleans Street. Employees at 861 first picketed that place and later they picketed at 649 Orleans Street. The court held that the picketing was for a lawful purpose and the union had a right to picket with the decision being based on the fact that the two businesses were closely related in ownership and that pressure by the union on one amounted to pressure on the other.

Alamo Express, Inc. v. International Brotherhood of Teamsters, etc., Tex. Civ. App. (1948), 215 S. W. 2d 936: Appellant motor carrier had terminals at Houston and other cities and employed a total of 144 persons, including 35 “over the road” drivers. The employees voted to strike, with Houston voting 8 to 0 for, another place 8 to 3 against, and other places for and against. The employees picketed the Houston terminal. The Court held the union had a right to picket because “A majority of the over the road drivers belonging to the Houston Local had voted to strike and they had the right of peaceful picketing to put the public on notice of their strike”. American Brake Shoe Co. v. District Lodge 9 of International Ass’n of Machinists, et al. 373 Pa. 164, 94 A. 2d 884: Appellant owned factories at St. Louis, Missouri, Meadville, Pennsylvania, and other places where appellant had no-strike contracts with the union. When the contract at St. Louis expired, five union employees went to Meadville and picketed the plant there. The court held that the picketing was legal and could not be enjoined. Most of the discussion referred to the fact that the union had no contract in force at St. Louis and therefore had a right to picket in Meadville, the inference being that the question of separate locations was not material.

Lora Lee Dress Co., Inc. v. International Ladies’ Garment Worhers Union Local No. 85 et al., 129 N. J. Eq. 368, 19 A. 2d 659: Appellant had place of business in New York and another place of business in New Jersey. There was a labor dispute in New York but not in New Jersey. Employees in New Jersey picketed that plant. The Court held that the employees in New Jersey had a right to picket under the general constitutional right of free speech. National Labor Relations Board v. General Drivers, Warehousemen and Helpers, Local, 968 et al., 5th Cir. (1955), 225 F. 2d 205: Employer was a contractor operating at several different sites and employees included members of several unions. One union had labor dispute and went on strike. Employees at another site picketed. The Court held that the employees had a right to picket, stating:

“Irrespective of the Board formulated ‘situs’ theory, however, we think such peaceful picketing upon common premises, directed solely against the primary employer with whom a labor dispute exists, is still lawful under the Act, and that any adverse effect upon secondary, neutral employers must necessarily be viewed as incidental to the lawful exercise of that statutory right. ’ ’

While the facts in none of the above mentioned decisions are exactly like the facts in this case, we are convinced that the principles announced in them lead unerringly to the conclusion heretofore announced when applied to the assumed purpose in this case. We have examined the decisions by this Court in International Brotherhood of Teamsters, Local 878 v. Blassingame, 226 Ark. 614, 293 S. W. 2d 444, and International Brotherhood of Electrical Workers, Local Union No. 295 v. Broadmoor Bldrs., Inc., 225 Ark. 260, 280 S. W. 2d 898, and find they are not in conflict with our announced conclusion.

Finally it is contended by Davis that, in no event, could Union lawfully picket the Frez-N-Stor job (where he was the prime contractor) because he was paying union wages to all his employees and Union expressed no grievance toward him. In view of the conclusion heretofore reached it is not necessary for us to pass upon Davis’ contention. However, again in the public interest, we state our conclusion to be that his contention is without merit. Otherwise it would leave Union without a remedy even though a lawful labor dispute existed between Hough and Union. On the other hand Davis can protect himself merely by doing business with sub-contractors who pay the prevailing wages.

The decree is therefore reversed, and appellants are awarded their costs.

Reversed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Burns v. Hall.
    5-2551
    356 S. W. 2d 235
    Opinion delivered April 2, 1962.
    [Rehearing denied May 7, 1962.]

      Francis T. Donovan, for appellant.
    No brief for appellee.
   Sam Robinson, Associate Justice.

Appellee, Hall, filed this suit against appellant, Burns, seeking judgment in the sum of $771.37 on an account. An itemized statement of the account was attached to the verified complaint, made a part thereof, and marked Exhibit “A”. The itemized statement shows the date of sale, the sale price, the nature of the item sold, such as dairy feed, hay, calf starter, etc. Hall demurred to the complaint stating as grounds for the demurrer that the complaint does not state facts sufficient to constitute a cause of action and that the exhibit to the complaint is not properly itemized and verified. Appellee filed an additional itemized statement showing a debt totaling the same as Exhibit “A” attached to the original complaint; however, there were some slight changes in the listed items which may have been necessary because of typographical errors.

The demurrer was overruled by the trial Court, but was treated as a motion to make the complaint more definite and certain. As such, the motion was granted and appellee was ordered to make the complaint more definite and certain within fifteen days. Appellant objected to the overruling of the demurrer. He elected to stand on it and declined to plead further. Thereupon the Court rendered judgment for Hall for the amount of the itemized statement of the account. Burns has appealed to this Court.

First, appellant argues that the account is not properly itemized and cites as authority to sustain his contention in that respect the case of Griffin v. Young, 225 Ark. 813, 286 S. W. 2d 468. In that case it was held that a similar statement of account was subject to a motion to make the complaint more definite and certain and the judgment was reversed because the trial Court overruled a motion to that effect. The Griffin case does not suggest that the complaint was demurrable. Likewise in the case of Brooks v. International Shoe Co., 132 Ark. 386, 200 S. W. 1027, cited by appellant, it was held that the trial Court erred in overruling a motion to make the complaint more specific, but nothing is said in that case indicating that the complaint did not state a cause of action.

Appellant also contends that the itemized statement of account is not verified. In his verification of the complaint Hall states: ‘ ‘ Comes the plaintiff herein, Lonzo Hall, after being duly sworn, on oath states that he has read the foregoing complaint and the statement of account, marked Exhibit “A”, and attached hereto, and it is true and correct to the best of his knowledge and belief.” The affidavit was made before a notary public and was a sufficient verification of the account.

In Clarke v. John Wanamaker, 184 Ark. 73, 40 S. W. 2d 784, there was a default judgment for the plaintiff in a suit on an account for merchandise sold. There, the Court held that an affidavit, duly certified and sworn to before a notary public, substantially the same as the affidavit to the complaint in the case at bar, was a sufficient verification of the account. The Court further said: “The effect of § 4200 of Crawford & Moses’ Digest [Ark. Stats. 28-202] is to make a verified account, when undenied, prima facie proof of its correctness. The defendant did not deny the correctness of the account by affidavit or by verified answer. She did not offer any testimony whatever, but contented herself with demurring to the complaint. By virtue of the statute above quoted, the account verified by the affidavit of the agent of the plaintiff was evidence of its correctness, and, not having been attempted to be contradicted by the defendant, warranted a judgment in favor of the plaintiff.”

Affirmed.


text:
    Pilgrim v. Joyner.
    5-2588
    355 S. W. 2d 616
    Opinion delivered April 2, 1962.

      Gockrill, Laser & McGehee, for appellant.

      Guy E. Jones and Francis T. Donovan, for appellee.
   Sam Robinson, Associate Justice.

This is a personal injury case. A pickup truck belonging to the appellant, J. P. Pilgrim, broke down and he got his friend, Robert Cheek, to pull the disabled truck to White’s Garage, located on the west side of Highway 65 north of Conway. This was done by attaching Pilgrim’s truck to the back end of Cheek’s truck with a chain about six feet long.

Cheek and Pilgrim then proceeded north on Highway 65 with Cheek driving his pickup and pulling the other truck with Pilgrim at the steering wheel. They agreed that Pilgrim would give whatever arm signals Cheek gave. When they reached a point near White’s Garage, which was on their left, Cheek turned to the left across the highway and, of course, he pulled Pilgrim’s truck across the highway.

At this time, James Bostic was travelling south on Highway 65 in his automobile at a rapid rate of speed. In an effort to avoid a collision with Cheek and Pilgrim, who were executing a left turn in front of him, Bostic pulled to his left, sideswiped Pilgrim’s truck and ran into a car occupied by appellee, Glover Joyner, and other members of the Joyner family, who were travel-ling north on the highway and all of whom were injured as a result of the collision. There is no contention that the Joyners were in any manner negligent.

The Joyners filed suit against Bostic, Cheek and Pilgrim. The actions were consolidated for trial. Upon a trial there were verdicts for the Joyners against all three defendants. Only Pilgrim has appealed.

There are two points for decision. First, is there any substantial evidence of negligence on the part of Pilgrim. We think there is. Pilgrim testified that before he and Cheek started north on Highway 65 they agreed that Pilgrim would also give any arm signals made by Cheek. Both Pilgrim and Cheek testified that they gave a left turn signal before they turned across the highway, which, of course, it was their duty to do. Ark. Stats. 75-618(b) provides: “A signal of intention to turn right or left shall be given continuously during not less than the last 100 feet travelled by the vehicle before turning. ’ ’ The jury could have found that Pilgrim was negligent if he failed to give such signal. Both Bostic and Mrs. Montean Joyner, who was driving the Joyner car, testified that neither Cheek nor Pilgrim gave any signal.

The Complaint alleges that the defendants failed to give the proper signal upon turning to the left. Pilgrim knew he was to turn to his left at White’s Grarage. Of course, he actually steered the towed vehicle to his left across the highway. The jury could have found from the evidence that no left turn signal was given and in failing to give such signal Pilgrim failed to do that which an ordinarily prudent person would have done under the circumstances. If such signal had been given Bostic might have seen it and avoided the collision. In 5 Am. Jur. 687, it is said: “The driver of the automobile which is doing the towing and the person in charge of the towed car owe a duty to pedestrians and other vehicles to exercise reasonable and ordinary care.” In Musgrave v. Studebaker Bros. Co., 48 Utah 410, 160 P. 117 the Court said: “The law does not prescribe any particular method by which vehicles may be moved on the streets. But in moving them it imposes the duty of exercising due or ordinary care. What constitutes ordinary care in view of a particular set of facts is ordinarily for the jury. That is, it is for the jury to say whether, in view of all the facts and circumstances in case of dispute, or where different inferences may be deduced by different minds, the conduct of the party charged with negligence did or did not constitute negligence, and if such conduct was negligence whether it was the proximate cause of the accident.”

Appellant further contends that even if Pilgrim was negligent there is no substantial evidence that such negligence, if any, was the proximate cause of the collision. In the circumstances of this ease it was a jury question as to whether Pilgrim’s negligence was the proximate cause of the injuries sustained by the Joyners. Without objection, the Court gave the following instruction: “Proximate cause, means that to be actionable the negligence relied upon to give a right of recovery must be the direct and proximate cause of the injury or damage complained of. The proximate cause of an injury or damage, in that cause, which in natural and continuous sequence unbroken by any efficient intervening cause. produces the injury or damage, and without which the result would not have occurred, and being a cause from which a person of ordinary sagacity and experience could foresee that the result might happen.

Affirmed.


author: Jim Johnson, Associate Justice.

text:
    Allis-Chalmers Mfg. Co. v. Glover.
    5-2601
    355 S. W. 2d 606
    Opinion delivered April 2, 1962.

      House, Holmes, Butler & Jewell, for appellant.

      Tom Lovett, Barber, Henry, Thurman & McCaskill and Moore, Chowning, Mitchell, Hamilton Burrow, for appellee.
   Jim Johnson, Associate Justice.

This appeal involves an action in replevin. Suit was brought by appellant, Allis-Chalmers Manufacturing Company, against appellees, Sherril L. Glover, Carroll Glover, E. V. Glover, d/b/a Glover Brothers, and Associates Discount Corporation, to recover possession of three used Allis-Chalmers Motor Scrapers, which were purchased by appellees, Glover Brothers, from Kern-Limerick, Inc.,of Little Rock in the spring of 1960. The purchase instruments were in the form of lease agreements but it is in effect conceded that the agreements were actual sales. The lease agreements and notes for the balance of the purchase price were assigned by Kern-Limerick to appellee, Associates Discount Corporation and appellee-intervener, James Talcott, Inc.

Appellant bases its claim for possession on the contention that Kern-Limerick had, on November 12, 1959, sold the same three motor scrapers to Consek, Inc., which corporation in turn had executed conditional sales contracts and promissory notes in favor of Kern-Limerick, evidencing and securing the entire purchase price of the machines, and on the same day Kern-Limerick assigned these instruments to appellant, Allis-Chalmers, as payment on an indebtedness owing appellant by Kern-Limerick.

On trial before the Circuit Court sitting as a jury, appellant contended that by virtue of these alleged earlier transactions its claim to the three machines was prior to the claims of appellees.

The material evidence produced by the respective parties is practically undisputed. From a careful review of the record, we find that there is substantial evidence to support the facts which are summarized as follows:

Kern-Limerick, Inc. was a retail dealer in heavy equipment in Little Rock, Arkansas. It had been the Allis-Chalmers dealer for many years. Consek, Inc. was an Arkansas corporation organized in August of 1959 with all of its stock owned by R. C. Limerick, Jr., President of Kern-Limerick, Inc. Consek had only a net worth of $300, being its original capital. It had no office, warehouse, lot, parts or employees. All of its operations were conducted at Kern-Limerick’s place of business by Kern-Limerick employees.

In November of 1959, Kern-Limerick, Inc., pursuant to a prearranged plan, agreed to by Allis-Chalmers, ordered three new pieces of Allis-Chalmers Equipment for sale to a Mr. Linwood Smith, taking in trade the three pieces of equipment, the title to which is at issue before this Court. It is clear from the record that generally when a dealer sells equipment the factory is paid immediately. In the present instance Kern-Limerick did not have sufficient cash to pay Allis-Chalmers in full for the machinery ordered. Consequently, pursuant to the agreement with Allis-Chalmers, B. C. Limerick, Jr., caused Consek to execute conditional sales contracts to Kern-Limerick, Inc., purporting to represent a sale by Kern-Limerick, Inc. to Consek of the three pieces of equipment traded in, which conditional sales contracts Kern-Limerick then assigned to Allis-Chalmers. This assigned paper was security for the payment by Kern-Limerick to Allis-Chalmers of the balance due on the new machinery sold by Kern-Limerick to Smith. Consek made no down payment or trade-in on the purported sale to it but the entire purchase price of approximately $42,000 plus finance charge, was to be paid in installments. Kern-Limerick paid the installments and Allis-Chalmers fully knew of Consek’s position relative to Kern-Limerick and knew Consek’s financial position.

The used machinery was held on Kern-Limerick’s lot in Little Bock and co-mingled with other machinery owned by Kern-Limerick being held out for sale to the general public. The machinery was the same color as other machinery owned by Kern-Limerick and was not painted black as was other machinery owned by Consek. It did not bear Consek’s name on it as did other machinery owned by Consek. All of this was with the knowledge of Allis-Chalmers.

In the spring of 1960, the three machines were subsequently sold by Kern-Limerick to Glover Brothers under separate contracts, a bona fide purchaser for value without no'Cce of any claim by Consek or Allis-Chalmers. Two of the Glover Brothers’ contracts were then assigned to appellee Associates Discount and one to appellee, James Talcott, Inc.

Based upon these facts the trial court was confronted with a situation created by the conduct of an original owner who had sold the same chattels twice and who had put into circulation and obtained the proceeds of two sets of commercial paper covering the same chattels. The question to be determined was whether appellant, as the holder of the earlier conditional sales contracts and notes, was entitled to prevail over the subsequent innocent purchaser of the machines and the finance companies which acquired the contracts and notes executed by the latter purchaser.

The trial court found in favor of appellee and judgment was accordingly entered. From that judgment comes this appeal.

Since this is an appeal from a judgment of a circuit court sitting as a jury, the principal question presented for our consideration is whether there is substantial evidence to support a finding that there was not a completed bona fide sale from Kern-Limerick, Inc., to Consek, Inc.

In the case of Securities Investment Company of St. Louis v. Williams, 190 F. Supp. 261 (1960) Judge J. Smith Henley had occasion to examine facts identical to the facts in the case at bar. In that case the first finance Company, Securities Investment Company, purchased paper from Kern-Limerick, which paper was a conditional sales contract purporting to represent a sale of a dragline from Kern-Limerick to Consek. The drag-line was left on Kern-Limerick’s lot and was later sold to a purchaser, Williams. The first question considered by the Court was whether the “sale” of the dragline to Consek was bona fide. In that case the position of the first finance company was much stronger than the position of Allis-Chalmers in the instant case for the reason that the first finance company was not at all involved in the preliminaries leading up to the “sale” by Kern-Limerick to Consek. The court in an excellent opinion reviewed the Arkansas cases at some length. The Court put its finger on the essential ingredient that it found lacking there and which is lacking in the instant case. The Court said:

“. . . in order for a sale of personal property to be binding on subsequent innocent purchasers, there must be an actual or constructive delivery of the property to the vendee, or at least an agreement whereby the vendor holds the property as bailee for the purchaser.”

The opinion cited the following Arkansas case: McDermott v. Kimball Lumber Company, 102 Ark. 344, 144 S. W. 524, and quoted the following:

“. . . in the sale of personal property, the delivery of the thing sold is essential as against the rights of third parties asserting a title, right or interest therein subsequently acquired from the seller. A delivery may be either actual or constructive, and in either event it will be effective to pass title. Where property is of such a nature and so situated that actual delivery thereof can be made, then that is necessary. Where the property is too ponderous and bulky for an actual change of its possession, a symbolical or constructive delivery thereof will be equivalent to and effective as an actual delivery. The delivery of such property may be made by doing everything necessary to identify it and by placing on it outward indicia to show a change of the possession and ownership.”

The trial court there further said:

“Assuming without deciding that the separate corporate entity of Consek should be recognized, there was never any sale to Consek which would be valid as to innocent third parties.”

The Court properly found that there was no delivery, either actual or constructive of the machine to Consek and further observed as to what could have been done as follows:

“It is manifest that the machine was susceptible of physical delivery to Consek. It could have been painted black and the name ‘Consek’ inscribed upon it. It could have been segregated on the lot away from the Kern-Limerick stock-in-trade, or, at the very least, some tag or sign could have been placed upon it which would indicate that it had been sold to Consek and was no longer a part of the Kern-Limerick inventory. Nothing of the kind was done. The machine was simply left where it had been placed originally as part and parcel of the Kern-Limerick machinery. There was no intention to deliver, no delivery, no sale. The ‘sale’ was merely a paper transaction which enabled Kern-Limerick to get $20,000 from the plaintiff while retaining possession of the machine and full power to sell it and make delivery to the first willing buyer that might appear. ’ ’

From what has been said above, we cannot escape the conclusion that there is substantial evidence to support the finding that there was no “sale” by Kern-Limerick to Consek; that the transaction between them was simply a part of the financing arrangement of the initial sale to Linwood Smith in which Allis-Chalmers was immediately and directly involved and the relationship between Kern-Limerick and Consek was well known to Allis-Chalmers; that there being no “sale” the assignment of the executed instruments to Allis-Chalmers by Kern-Limerick passed nothing to Allis-Chalmers which it could interpose as against third parties. See Coffman v. Citizens Loan and Investment Company, 172 Ark. 889, 290 S. W. 961.

As to the question of whether appellees are innocent parties without unduly extending this opinion suffice it to say that there was no substantial showing that appellees were not bona fide purchasers for value without notice of any claim by Consek or Allis-Chalmers. In the absence of error, it follows that the judgment is affirmed.

       Appellant’s strongest contention on this point is that the instruments which were assigned to Allis-Chalmers on November 12, 1959, were filed in the office of the Recorder of Pulaski County on November 27, 1959, and were so filed at the time appellees made their purchase. It is noted that the Arkansas Motor Vehicle Registration Law does not apply to construction equipment such as Motor Scrapers and there is no provision in our law for the recording of conditional sales contracts covering personal property. There is, therefore, no question of anv record notice in this case.


author: Neill Bohlinger, Associate Justice. Sam Robinson, Associate Justice, Jim Johnson, Associate Justice,

text:
    Gibson v. Gibson.
    5-2437
    356 S. W. 2d 728
    Opinion delivered April 2, 1962.
    [Rehearing denied May 28, 1962.]

      W. H. Howard and Wm. 8. Arnold of Arnold & Hamilton, for appellant.

      John F. Gibson, for appellee.
   Neill Bohlinger, Associate Justice.

The appellee herein filed his complaint in the Chicot Chancery Court in which he sought a divorce from the appellant, Sarah Gibson, on the grounds of general indignities and asked that the two adopted children of the parties be awarded to him and that the appellant take no part of his property. Subsequently appellee amended his complaint and alleged that the appellant had attempted to destroy and invade his personal dignity; was suspicious and jealous of his friends; persistently quarreled; fussed, abused and nagged him; exhibited manifest hatred; was devoid of concern for his business and prohibited the appellee from administering his business; required unreasonable explanations of his business and social activities; and had neglected personal supervision of his two children.

To this complaint appellant filed an answer denying the specific allegation of indignities; denying she was not a fit and proper person to have the custody of the children; denying that she had failed to maintain the home; asking that the complaint be dismissed; and asking for support for herself and children, costs and attorney’s fees and for permission to file a cross complaint if on examination it was found necessary; and asked for all equitable relief.

Thereafter the appellant filed her amended answer and cross complaint alleging that the appellee herein had treated her with contempt and neglect, had shown a propensity for preferring the company of other women that caused her mental and physical strain through no fault of her own and asked for separation of bed and board. She further alleged that any conduct complained of by appellee was brought on by appellee’s own action and that she was without means of support. In addition to asking for separation from bed and board, in the alternate she asked an absolute decree of divorce and for her property rights.

. Responding to a motion by the appellee, the appellant filed an amended and substituted counterclaim with interrogatories aqd in that pleading reaffirmed and readopted her former pleadings and made further allegations that the appellee’s course of conduct displayed an attitude of contempt and neglect; that he had privately and publicly abused and cursed her name and reputation; that he had continually associated with other women, indicating improper or immoral conduct; that the appellee had on numerous occasions appeared in public intoxicated; that he had committed one or more acts of adultery prior to the filing of his complaint and she alleged appellee was guilty of acts of adultery.

Further, that appellee had refused a reconciliation which she was willing to accept and that the counterclaim was made for the purpose of protecting her rights in appellee’s property and that if the court determined an absolute divorce shodld be granted, that such divorce be granted to her and asked for her statutory rights in appellee’s property and for such other relief as she might be entitled to and that her pleadings be deemed amended to conform to the proof.

After numerous delays and a lengthy trial, the court awarded to the appellee an absolute divorce and awarded temporary custody of the children to the appellant with right of visitation in the appellee and required the appellee to pay $500.00 per month temporary support. The chancellor, in his finding, took the view that the position of the appellant would have been better taken had her plea been for an absolute divorce and if the chancellor, in his discretion, finds absolute divorce not be granted then a limited divorce be granted; that the court could not grant an absolute decree when a limited divorce was prayed. The chancellor further found that appellee’s charge of fussing and nagging, use of profanity toward appellee and the use of profanity in the company of others, a closet incident, use of detectives to shadow him and charging appellee with adultery had been corroborated.

The chancellor found that the appellant’s allegation of the appellee removing himself from the marital bed, desire for party life to the exclusion of family life, requiring her to associate with obnoxious friends, contemptuous behavior toward her, fussing and nagging, cursing her, had not been sufficiently corroborated and had been explained away; that the appellant had failed to prove the charge of adultery and that the allegation and subsequent failure to prove this charge was the basis for a finding that the appellant’s charge constituted cruel treatment. He further found both parties had the same grounds for personal indignities, but that the appellant had failed to prove the charge of adultery. The court found her action in hiring detectives to shadow the appellee was a cause of the separation and that the decree therefore should be awarded to the appellee.

The chancellor, in his finding, took the position that the appellant could not be granted an absolute decree of divorce as her application was for a limited divorce. We do not so read the record. In her answer and cross complaint the appellant asked for separation of bed and board and in the alternative asked for an absolute decree and for her property rights. We think the case of Grytbak v. Grytbak, 216 Ark. 674, 227 S. W. 2d 633, is applicable here. In that case we said:

“We have held that the statement of facts in a complaint or cross complaint and not the prayer for relief constitutes the cause of action and that the court may grant whatever relief the facts pleaded and proved may warrant in the absence of surprise to the complaining party. ’ ’

In this case there was no surprise nor does the appellee plead surprise.

Not only did the prayer of the answer and cross complaint ask, among other things, an absolute decree but the facts as pleaded and proved would entitle the appellant to that relief. See also Crabtree v. Crabtree, 154 Ark. 401, 242 S. W. 804. While the Crabtree case deals with the matter of judicial discretion when deciding whether the pleadings are adequate to award an absolute or limited divorce, we stated in that case:

“* * * This, however, does not mean a discretion to be exercised at the will of the chancellor; but it is a judicial discretion to be exercised according to equitable principles and the peculiar circumstances of each case. * * *“
“On the other hand, if his discretion is to be exercised according to the principles expressed in Conant v. Conant, supra, [70 Am. Dec. 717] and in accordance with the acts of the chancellor in Crews v. Crews, supra, [68 Ark. 158] it is manifestly an abuse of discretion for the chancellor to grant a divorce from bed and board where the complaining party is without fault and has established his or her grounds for divorce.” [Citations added]

We hold that the pleadings of the appellant are not so limited as to preclude the granting to her of an absolute decree.

In the matter of the personal indignities alleged by both parties, the chancellor made this finding:

“Summarizing, the plaintiff charged the defendant with personal indignities, and the defendant charged the plaintiff with personal indignities and adultery. The plaintiff sustained the grounds of personal indignities, the defendant sustained the grounds of personal indignities, but failed to prove the charge of adultery. The court following the rule of comparative rectitude finds that becase the defendant failed to prove the charge of adultery and her action in employing detectives to ‘ shadow’ the plaintiff- was the ultimate cause of the separation, that the divorce should be granted the plaintiff.”

There was no appeal by the appellee from the chancellor’s finding that the appellant had sustained the grounds of personal indignities alleged by her. After a careful perusal of the many hundreds of pages of the record in this case, we reach the conclusion that the appellee failed to prove his general charge of indignities in such a manner as would have entitled him to a divorce. Indignities may mean a number of things in various circumstances but in order to constitute the grounds for divorce they must be constantly and persistently pursued with the object and effect of rendering the situation of the opposing party intolerable.

Perfection is the ultimate goal in all fields but we doubt if perfection in the field of human relations has ever been or will ever be attained. It is hardly conceivable that over a period of years two separate and distinct persons can live their lives as intimately enmeshed as in the marital relation without friction and rare would be the history of a marriage where no clash of opinions, ideas and wishes have ensued. Colorless indeed would be the life of any strong willed pair if either party cast aside a personal preference in minor details and followed without remonstrance the dictates of the stronger of the two. We might, in such a circumstance, have a semblance of peace but we would not attain the degree of felicity which the marital state contemplates.

We do not find that the appellant has in all respects been gentle and yielding nor willing to subject her inclinations and preferences to the more boisterous activities of the appellee and in some respects her fears and apprehensions for him may have been a source of annoyance to him but we fail to find a studied neglect or the indignities that must be habitually and systematically pursued for the purpose of rendering her mate’s station in life intolerable. In this case we have two people with different backgrounds and a clash of personalities that may never be resolved and the record before us convinces us that neither party to this action has displayed that tolerance and understanding that rests upon each party in a marriage contract if a marriage is to be preserved. In this respect they are both guilty. We therefore conclude that the appellee’s allegations of indignities on which he predicates his prayer for divorce have failed.

In the matter of the charge of adultery. We know of no useful purpose that will be served in a page by page recital of the sordid details in this chapter of domestic infelicities. It is true, as the chancellor found, that the appellant placed the appellee under surveillance by the employment of detectives, and the rumors that gave rise to her suspicions seem to have been well grounded. There was brought to light by their activities at least one episode in Hot Springs on which we must sustain the charge of adultery. We do not agree with the chancellor that the degree of proof necessary to establish adultery was lacking. Were this a criminal case we might share his view but this is a charge of adultery in a civil proceeding and that charge may be sufficiently proved by evidence of circumstances leading to an inference of guilt. The following cases are pertinent. Leonard v. Leonard, 101 Ark. 522, 142 S. W. 1133; Buck v. Buck, 207 Ark. 1067, 184 S. W. 2d 68; Hargis v. Hargis, 188 Ark. 1167, 67 S. W. 2d 597, and Ayers v. Ayers, 226 Ark. 394, 290 S. W. 2d 24.

The opportunity and the adulterous disposition must meet. The opportunity was present and while there is no person except the participants who know whether or not one or both of the parties involved harbored an adulterous disposition, the almost daily telephone calls between the appellee and the woman, his clandestine meetings with her, their demonstrations and their presence in a darkened motel room during the nighttime are such circumstances that would lead the guarded discretion of a reasonable and just man to the conclusion of guilt.

From the record in this case we conclude that the appellant has sustained her charge of adultery and is entitled to a decree of absolute divorce from the defendant.

The trial court was correct in awarding the temporary custody of the two children to the mother with visitation rights in the appellee. That order should stand until the court finds that the welfare of the children necessitates a change. The appellee will be required to furnish support money for the children.

In the matter of attorney’s fees. We do not have before us the schedule of fees adopted by that local Bar but the allowance of $2,500.00 by the trial court does not appear adequate and for that reason an allowance of an additional $1,500.00, which will cover the costs of this appeal, is made to the attorneys for the appellant and it will be paid by the appellee. At the conclusion of this cause on the remand the court will further examine the matter of additional allowances to cover the services of counsel for appellant in the final disposition of this cause.

The court will further ascertain the rights of the appellant in the property of the appellee and make the appropriate orders therein. This cause is reversed and remanded for further proceedings consistent with this opinion.

Robinson and Johnson, JJ., dissent.

Sam Robinson, Associate Justice,

dissenting. The majority has reversed the decree of the trial court and ordered that appellant be granted a divorce on the ground of adultery, specifically holding that appellant is not entitled to a divorce on any other grounds.

All of the parties involved, including the appellee, the appellant, the lady with whom appellee is alleged to have had an affair, and the detectives hired to watch appellee, appeared before the trial court. The Chancellor had a much better opportunity than has any member of this Court to judge the credibility of the witnesses, and the Chancellor reached the conclusion that there had been no adultery. After carefully reviewing the entire record, I have reached the same conclusion.

The detectives who testified in the case were paid more than $6,000.00, almost $7,000.00, to watch the appellee, and they could tell of only one isolated instance of suspicious circumstances. Detectives from Memphis were also hired to watch appellee, but they were not called as witnesses. Apparently during the time they had appellee under surveilance they observed nothing of a suspicious nature. It does appear, however, that they went to appellee’s pasture and counted his cattle. This was prior to the time the parties separated. There is no showing as to the amount of money paid to the Memphis detectives.

There is a very strange and unusual occurrence in connection with this case — so out of the ordinary as to cast a deep shadow on appellant’s contentions. Appellant undertook a campaign to get evidence of adultery on the part of her husband. In furtherance of plans in that respect detectives were hired. The record shows the hiring of Little Eoek detectives, Memphis detectives, and perhaps detectives from Dallas and St. Louis, but the record does not reveal whether detectives were hired elsewhere.

Appellant testified that appellee was very liberal with her in money matters. She stated that she would bring home on approval dresses that cost $25.00 and others that cost $150.00 and appellee would tell her to keep the $150.00 dress. She testified: “As to the monthly support, all I had to do was ask Jack (appellee, her husband) and he would say spend it and he would worry about it. I do not know what the utilities are. I have never seen money spent as it is spent in this country and was not accustomed to it.”

Appellant testified that she did not use her husband ’s money to pay detectives to watch him. She stated that Mr. Scroggins, who lives in Monticello, supplied the money to pay the detectives. It appears that she had not known Mr. Scroggins very long before she and her husband separated; that perhaps she and her mother had met Scroggins one time before at a deer camp, and that he had never been in the Gibson home before the separation. Appellant testified that she and her mother went to Mr. Scroggins and that her mother borrowed money on her property to conduct the investigation. It is not shown what property her mother owned or the value thereof. The mother, Mrs. Kendricks, did not testify in the case. Appellant testified that she personally received $55.10 per month from an insurance policy on the life of her first husband, and ever since her marriage to Gibson she had turned the insurance money over to her mother because her mother needed it to live on. She testified that at the time the money was borrowed from Scroggins no arrangements were made as to any particular amount and that there was no due date. She testified that Scroggins and his wife drove her to Hot Springs on one occasion in connection with watching her husband. She stated that the detectives never sent her a statement for services and she did not know to whom the statements were sent.

Scroggins testified that he made a loan to Mrs. Kendricks, the mother of Mrs. Gibson, and to Mrs. Gibson ; that a note was signed by both Mrs. Kendricks and Mrs. Gibson in his store in Monticello; that he advanced $5,600.00; that he did not know what the money he loaned was to be used for; that he had no other bills from Mrs. Gibson except a few telephone calls she had charged to his phone; that the only inducement for the loan was to make the interest, which was six per cent; that he first met Mrs. Kendricks at the Collins Hunting Club with Mrs. Gibson.

The Court sent Scroggins to get the note which he had stated Mrs. Kendricks and Mrs. Gibson signed. Scroggins brought back a note that was not signed by anyone. In other words, Scroggins, almost a stranger to Mrs. Kendricks and Mrs. Gibson having met them perhaps only one time at the Collins Hunting Club, had loaned almost $6,000.00 without the scratch of a pen to have Mrs. Gibson’s husband watched with the idea of being able to make out a case of adultery against him. It is small wonder that the Chancellor did not place much stock in testimony obtained under the circumstances shown here.

On the other hand, the party with whom it is alleged that appellee had an affair, faced her accusers in open court before the Chancellor, who. had the opportunity to see her and observe her demeanor on the witness stand, under direct and cross examination, and concluded that she testified truthfully when she said she was guilty of no immorality.

I respectfully dissent from the finding that appellee is guilty of adultery. I do not reach the point of whether the evidence is sufficient to sustain the awarding of a divorce to the appellee.

Jim Johnson, Associate Justice,

dissenting. I agree with everything said by Justice Bobinson in his dissent but would add that the detectives, who were well paid witnesses in this case, after over two years of almost constant surveillance could find but one isolated instance which was the least bit suspicious. The majority refers to this instance in the following language: “We know of no useful purpose that will be served in a page by page recital of the sordid details in this chapter of domestic infelicities.' ’ The truth from the record is that there are no sordid details.

When appellee learned of appellant’s apparent efforts to entrap him by having his every move watched by detectives he was so embarrassed and humiliated in his home community that he separated from appellant.

During the next two years before trial, he was aware of the almost constant surveillance under which appellant’s detectives kept him. Defamatory gossip was spread on behalf of appellant’s contentions to such an extent that it appeared to be the talk of the town. Under oath on the witness stand the gossip proved to be unfounded. The one person who could testify to the true facts concerning the apparent conspiracy which appellant had promoted against appellee for the purpose of personal enrichment was the very person appellant chose to accuse of being the major adulteress with her husband.

This young lady had for a long period of time been the best and most confidential friend of appellant. Appellant had confided in this friend that she was going to fix appellee, that she had one adopted child and intended to get more and soak him for everything he had. There was proven to my satisfaction continuous indignities too numerous to mention, some of which were repulsive, committed by appellant which would render appellee’s condition intolerable. From the whole record I cannot escape the conclusion that the confidential friend aptly stated the case when she said, as abstracted, that ‘ ‘ appellant missed her calling. She should have been an actress. I think she is putting on a good act. This whole thing is a scheme and has been in process for eight years, been planning what she would do to appellee and I was a good scapegoat.” Certainly appellee needed the testimony of this witness in order that his side of the question could be presented. This witness knew things, because of her confidential relationship to appellant, which would further corroborate appellee’s testimony to the many indignities which were heaped upon him. Under the circumstances appellant was more than justified in his efforts to keep the good will of the witness. This necessitated his keeping in constant contact with the witness who could testify as to the truth of events which would prevent appellant’s scheme from working. They don’t deny that they met in Hot Springs. They both knew that detectives had been following them. They moved for a final showdown. They sought by their actions to explode appellant’s balloon of suspicion. The motel incident was a part of the plan. The facts as related by the majority relative to this incident are strenuously disputed. Under the circumstances of the seemingly desperate and fanatic attempts of this appellant to ruin the lives of these two people, the explanation relative to the meeting in Hot Springs by appellee and the witness who had been living with her sister in Dallas was logical and understandable. The witness had been accompanied to Hot Springs by her sister and her family, and had over an extended length of time been kept under surveillance by appellant’s detectives.

The learned Chancellor in his equitable handling of this case not only had the opportunity to view and judge the credibility of the parties in interest but was confronted with an array of the most prominent and credible men to be found in South Arkansas who testified without contradiction to the good character of appellee. It follows, from what has been said above, that I cannot from the cold printed page in good conscience say that the decree of the trial court is against the weight of the evidence.

As to the attorneys’ fees. It is apparent from the view of the majority that appellant’s attorneys did a masterful job. Certainly they are entitled to every penny the majority has awarded them. My only disagreement with the majority on this point is that the money should be paid by appellant through the same source which for a period of over two years paid the hard working detectives who found the one suspicious incident upon which this case on appeal turned. To say the least, I am unable to agree with the picture of sympathy which was so ably presented of a young war widow who had lost two of her loved ones prior to her marriage to this appellee. The record is too plain that the loss had occurred some years before the marriage. If this appellant had been so grief stricken, I am at a loss to know why she would have been present at a notorious night spot here in Little Rock at the time she was introduced to appellee and why she was present on a trip to New Orleans for the Mardi Gras where the courtship of the two apparently blossomed. For these and other reasons in the record too numerous to mention, I respectfully dissent.


author: Carleton Harris, Chief Justice. Ed. F. McFaddin, Associate Justice,

text:
    Wade Lahar Const. Co. v. McMinn-Echols Co.
    5-2569
    356 S. W. 2d 1
    Opinion delivered April 9, 1962.

      Mehaffy, Smith ds Williams, hy Herschel H. Friday and William H. Sutton, for appellant.

      House, Holmes, Butler & Jewell, for appellee.
   Carleton Harris, Chief Justice.

In December, 1958, Wade Lahar Construction Company, principal appellant herein, entered into a contract with the city of Little Rock for the construction of a portion of the Little Rock sanitary sewer system. On April 22, 1959, Lahar subcontracted a part of the work with McMinn-Echols Company, principal appellee herein, the latter to build the concrete manholes, and creek crossings, at designated points along the sewer line. The dispute which occasions this litigation arose over the interpretation of Section 4 of the subcontract, which provides as follows:

“The contractor agrees to pay to the subcontractor for the performance of his work the sum of $92,881.00 in current funds, subject to additions and deductions for changes as may be agreed upon, and to make payments on account thereof in accordance with Section 5 hereof.

The agreed price is a lump sum price based on using the following items to add to or deduct from, agreed total.

1. If more or less than 1,455 cubic yards of reinforced steel concrete are used, add or deduct $62.72 per yard.

2. If more or less than 107 cubic yards of fill concrete are used, add or deduct $20.00 per cubic yard.

All quantities of concrete are to be measured from neat lines as per plans and specifications furnished by the consulting engineer.”

Appellee McMinn-Echols contends that it had a lump sum contract for $92,881.00, and was to receive that amount as long as the plans and specifications, which had been prepared, were followed, irrespective of the number of cubic yards used; that items “1”, and “2” had reference only to additions to the work originally covered under the lump sum figure, and the final paragraph applied only if there were a change in plans and specifications. Lahar contends that in order to determine the amount earned under the contract, it is necessary to begin with the “lump sum” figure and, depending upon the amount of concrete actually used, add to or deduct from the agreed total. In other words, the contract was a “lump sum” contract for an agreed amount of work, with unit prices for adjustments, upward or downward, for variations of quantities. According to appellants’ evidence, the set price was placed in the bid for the purpose of establishing bonding ability. It is asserted that the court’s error in interpreting the section was principally due to the failure to give any consideration to the last sentence in Section 4, i.e., quantities of concrete were to be measured from neat lines.

It is admitted that $76,337.50 has been paid by Lahar to appellee for work done under the subcontract. In May, 1960, appellee construction company instituted suit against this appellant and Standard Accident Insurance Company, which had executed performance bond for appellant, alleging that it has earned $103,559.57 under the subcontract, said figure being reached on the basis of $95,097.20 for 1,516.25 cubic yards of reinforced concrete used at the rate of $62.72 per cubic yard, $2,270 for 113.5 cubic yards of fill concrete at the rate of $20 per cubic yard, $4,526.70 for additions and extras, and $1,665.67 for further extras and additions. The complaint recited that $76,337.50 had been paid, and that an unpaid balance was due in the amount of $26,707.47. Appellants answered, and contended that McMinn-Echols had earned only $81,306.91, taking the position that only 1,274.61 cubic yards of reinforced concrete, and 94 cubic yards of fill concrete had been used as specified by the subcontract. This left the amount due this appellee as $4,969.44, but appellants filed a counterclaim and third party complaint against McMinn-Echols, and its surety, National Surety Corporation, alleging that the former had not performed its work in accordance with the subcontract, and that Lahar had been compelled to furnish and perform items which properly were due to be furnished by McMinn-Echols; that this work amounted to $12,865.75, and that appellant construction company was due judgment of $7,896.31 over and above the total amount due McMinn-Echols. On trial, the court, sitting as a jury, held:

“1. That plaintiff, McMinn-Echols Co., Inc., is entitled to compensation from the defendants, Wade Lahar Construction Company and its surety, Standard Accident Insurance Company, for the performance of work under the sub-contract involved in this proceeding, the following sums (before taking into account amounts heretofore paid to plaintiff as set forth below); (a) $91,881.00 as the contracted lump sum amount agreed upon covering the placement of 1,455 cubic yards of reinforced con<crete and 107 cubic yards of fill concrete under the subcontract, and (b) $3,998.40, for the placement of 63 and 3/4ths additional cubic yards of reinforced concrete, at the rate of $62.72 per cubic yard, and (c) $130.00 for the placement of 6 1/2 cubic yards of additional fill concrete, at the rate of $20.00 per cubic yard; making a total of $97,009.40, of which plaintiff has heretofore been paid $76,337.50 by Wade Lahar Construction Company, leaving a balance due plaintiff in the amount of $20,671.90.
2. That plaintiff is not entitled to recover on its claims for additions and extras in the amounts of $4,526.70 and $1,665.67.”

The court also found that Lahar was not entitled to recover on its counterclaim and third party complaint, and further held that none of the parties were entitled to recover statutory penalties or attorneys’ fees from any other party or parties. From the judgment so entered, appellants have appealed. McMinn-Echols has cross-appealed from that portion of the judgment denying recovery on the claims for additions and extras in the amounts of $4,526.70 and $1,665.67, and also that portion denying penalty or attorneys’ fees.

We do not reach all of the issues raised by the pleadings and the proof, for we are definitely of the opinion that the court erred in its construction of the contract. The court gave no consideration to the last sentence of Section 4, heretofore quoted, but apparently took the view advocated by appellees to the effect that this provision only applied if there were a change in plans and specifications (which did not occur). We think this view was erroneous, and find nothing in the instrument to support such a position. The provision under discussion is, we think, entirely clear, and free from ambiguity. We are of the opinion, that in giving effect to all the provisions of the contract, it is apparent that the $92,881.00 figure was not intended as a lump sum payment to be received by appellee McMinn-Echols, irrespective of the number of cubic yards used; in fact, if appellees’ contention is correct, we see no need for the estimates contained in subsections 1 and 2, for there would be no necessity for measuring yardage under a lump sum contract. Again, under appellees ’ view, we see no reason for the language which follows the figure $92,881.00, “subject to additions and deductions for changes.” In Bailey v. Whorton, 207 Ark. 849, 183 S. W. 2d 52, we said, “In construing a contract, every sentence, clause, and word therein should, when it can be reasonably done, be given effect.” When this is done, it definitely appears that the interpretation urged by appellants must prevail. We think logic supports this position, for, as pointed out by appellants, if any method of measurement is used other than from neat lines, a subcontractor could “over order, build his forms too large, let the forms bulge, waste or dispose of the concrete in any number of ways, and his inefficiency, incompetence, or what have you, will inure to his benefit in proportion to his mistakes at a cost to appellant of $62.72 per yard.”

The court found that a total of 1,518.75 cubic yards of reinforced concrete had been used, and 113.5 cubic yards of fill concrete had been used. The 63.75 additional cubic yards of reinforced concrete, and the 6.5 cubic yards of additional fill concrete were arrived at through testimony on behalf of appellees that this amount had been poured, and upon delivery tickets showing the amount delivered to the job. This method of calculation, under the contract, was erroneous, for, as pointed out, that instrument provides that quantities of concrete are to be measured from neat lines as per plans and specifications furnished by the consulting engineer. Appellants offered evidence, arrived at by the latter method, to the effect that 1,274.61 cubic yards of reinforced steel concrete, and 94 cubic yards of fill concrete, were used on this job. Appellees did hot offer any proof under this method of computation.

Because of the error herein set out, the judgment is-reversed. Inasmuch as the court’s findings were predicated upon an erroneous construction of the contract,. and because the court’s findings relative to the counterclaim and third party complaint of appellants, and matters raised on cross appeal by appellee none of which we pass on in the instant litigation, were in the nature of a general verdict, the cause is remanded for the trial court’s further consideration of all factual questions.

It is so ordered.

McFaddin, J., concurs in part and dissents in part.

Ed. F. McFaddin, Associate Justice,

concurring and dissenting. I concur with the Majority in reversing the judgment of the Pulaski Circuit Court and in remanding the case for a new trial; but I dissent from the process of reasoning contained in the Majority Opinion; and I now give the reasons for my dissent.

The Majority Opinion quotes in full Section 4 of the sub-contract and says: “The provision under discussion is, we think, entirely clear and free from ambiguity.” I think Section 4 of the sub-contract is extremely ambiguous and almost conflicting. The opening portion of the section says that the contractor is to pay to the sub-contractor for performance of the work “the sum of $92,881.00.” The section says, “The agreed price is a lump sum price. . .” Then the paragraph further says that the quantities used are to be measured from “neat lines as per plans and specifications.” If the contract is a “ lump sum price, ’ ’ then McMinn-Echols was entitled to $92,881.00 at all events for completing the contract. On the other hand, if the contract was not a lump sum contract, then the figure of $92,881.00 is meaningless. So it seems to me that there is an ambiguity in Section 4 of the contract.

Since there is an ambiguity, parol evidence was admissible to explain the ambiguity; and I think the parol evidence established (a) that McMinn-Echols was to get $92,881.00 for completing the contract; and (b) that if there were any changes in the plans and specifications (as, for example, eliminating manholes or adding manholes), then the additions or deletions would be governed by the “neat lines” method. The Majority holds that the last clause about “neat lines” governs the entire contract; and I think the “neat lines” provision applies only to changes in plans and specifications. So I would give McMinn-Echols $92,881.00 for completing the contract regardless of everything else. Then I would take into consideration whether McMinn-Echols was entitled to extra amounts as they claim and as their proof showed.

At all events, the case would have to be reversed because there was some profered testimony that was put into the record but which the Court did not consider. On a retrial, of course, all issues are opened anew, except the construction of the contract as ruled by the Majority.

       “Neat line” — (1) The line to which the face of a masonry wall is supposed to conform disregarding minor irregularities.

       By subsequent amendment to the complaint, this amount was changed to $103,044.97.

       This figure, as well as the $81,506.91, was reached by amendment, the answer originally stating that appellee was due to the sum of. $8,496.31, and that appellee had earned $84,833.81.


author: Ed. F. McFaddin, Associate Justice. Carleton Harris, Chief Justice, Paul Ward, Associate Justice,

text:
    Cheney, Commr. v. Tolliver.
    5-2650
    356 S. W. 2d 636
    Opinion delivered April 9, 1962.
    [Rehearing denied May 21, 1962.]

      Lyle Williams, for appellant.

      Barrett, Wheatley, Smith é Deacon, for appellee.

       During the Chancery litigation and appeal to this Court, J. Orville Cheney was Commissioner of Revenues. Now Ted Donham is Commissioner, and has been duly substituted as appellant.

   Ed. F. McFaddin, Associate Justice.

The Commissioner of Revenues of Arkansas charged that C. E. Tolliver owed the State a sizeable sum for gross receipts tax on proceeds received from coin-operated music machines. After exhausting administrative remedies, Tolliver filed this proceeding in the Poinsett Chancery Court to cancel the Certificate of Indebtedness filed against him by the Commissioner of Revenues in Poinsett County. Yenue and jurisdiction are not questioned. See Fish v. McLeod, 206 Ark. 142, 174 S. W. 2d 236. The Chancellor delivered a written opinion which we copy in extenso because he reached the correct conclusion:

“MEMORANDUM OPINION
“STATEMENT
“This is an action by the plaintiff to cancel and hold invalid a ‘Certificate of Indebtedness’ on record in the office of the Circuit Clerk in Poinsett County. The certificate was filed by the Commissioner of Revenues deemed to be under the authority of the Arkansas Gross Receipts Act of 1941 and amendments thereto. The plaintiff also seeks to enjoin the Commissioner from filing any future claims based on the Act as it now stands. The plaintiff claims the Act does not apply to his enterprise.
“FACTS
‘ ‘ The plaintiff owns a number of automatic mechanical music machines which are placed in various establishments of others all located in Poinsett County, Arkansas. The machines are activated by alleged lovers of music by placing coins in slots. The coin is then forced along a track within this slot and in turn throws an electrical switch giving life to the machine. The machine also has an electronic brain, which if properly activated by our alleged music lover, will attempt to emit sounds shown by an index of selections.
“According to the stipulated facts, between a period dating from 1 July 1957 and ending 30 June 1960, the plaintiff’s gross receipts from his machines totaled to a snm of $84,514.51, and that.during this period no sales tax was remitted under the Act in question. The Commissioner then caused the certificate to he filed alleging therein that the sum of $2,535.44 was due for sales tax and a penalty of ten per cent amounting to $243.54. Thereafter plaintiff exhausted his administrative rights and now seeks the aid of the Courts.
“TEE ACTS
‘‘ The Acts are compiled as Sections 84-1901 through 84-1929 Arkansas Statutes volume 7-B. Section 84-1903 reads as follows:
“ ‘THREE PER CENT TAX LEVIED —There is hereby levied an excise tax of three per centum (3%) upon the gross proceeds or gross receipts derived from all sales to any person. . . .
“ ‘(e) The sale of tickets or admissions to places of amusement, to athletic, entertainment, recreational events,, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities. . . .’
“In Section 84-1902 it defines the word ‘sale’ as follows:
“ ‘(C) . . . The term “Sale” shall include also the sale, giving away, exchanging or other disposition of admission, dues or fees to clubs, to places of amusement, recreational, or athletic events, or for the privilege of having access to the use of amusement, recreational, athletic or entertainment facilities.”
“CONSIDERATION OF THE ISSUES
“For the issues to he resolved, the court must determine the implications raised by the above two sections.
“Q. Do they cover the proceeds derived from Automatic Mechanical Music Machines?
“To do this, the court will first analyze the section which levies the tax. What does it levy the tax on?
“1. The sale of tickets and admissions to,
a. Places of amusement.
b. To athletic events.
c. To places of entertainment.
d. To recreational events.
“2. It also levies on fees for the privilege of one having access to or the use of,
a. Amusement facilities.
b. Entertainment facilities.
c. Athletic facilities.
d. Recreational facilities.
“Note: (this section does not make a levy on ‘Dues’ unless they are free or complimentary)
“3. The defining section as to what shall consist a ‘sale’ are admissions, dues and fees,
a. To clubs.
b. To places of amusement.
c. To recreational events.
d. To athletic events.
Note: (this part omits anything pertaining to ‘entertainment’)
“This section also defines a ‘sale’ as being any admission, dues or fees for the privilege of access to or use of,
A. Amusement facilities.
B. Entertainment facilities.
C. Recreational facilities.
D. Athletic facilities.
“The court feels that the only possible part of this Act that could be directed toward the issues in the case at bar is as follows:
“ ‘. . . fees for the privilege of having access to or the use of amusement, entertainment . . . facilities . . .’
(84-1903 Arkansas Statutes)
“In Webster’s New Collegiate Dictionary, it defines the word ‘Privilege’ as:
“1. A right or immunity granted as a peculiar advantage or favor.
2. A personal right, in derogation of common rights.
3. A prerogative (a right to exercise a power to the exclusion of others).,
“It defines a ‘facility’ as:
“1. A thing that promotes the ease of any action, operation, or course of conduct, (see also 35 CJS pg. 488)'

2. Facilities can also be animate beings, such as persons, people and groups thereof. It is not restricted to inanimate things, (see 35 CJS 489)

‘ ‘ The dictionary defines the word ‘ Access ’ as:
“1. Approach, admittance, admission.
“It defines the word ‘Use’ as:
“1. Act of employing anything or state or being employed.
“The words ‘entertainment and amusement’ are synonymous, meaning:
“1. That which engages the attention of agreeably or to occupy pleasurably.
“Beading the Act as a whole the only reasonable conclusion the court can arrive at is this:
“1. When the Act refers' to entertainment and amusement facilities, it is considering a place where admission, dues and fees are paid for one to enter and attend.' Having been granted this privilege the customer may then have access and the use of the facilities therein made available to him.
“In Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S. W. 2d 81, it was said:
“ ‘ It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer and against the taxing power. ’
“It would have been very simple for the act the Legislature compiled to have named the Automatic Music Machine as such, had they intended to include them. They did so in Section 84-2604 Arkansas Statutes as follows:
“ ‘ There is hereby imposed . . . a privilege tax for the operation of coin operated machines and vending machines, including automatic music vending phonographs . . . ’
If one must be pleasurably and agreeably occupied to be entertained and amused, how will we allow for music which is sad and depressing?
“CONCLUSION
‘ The court finds that no gross receipts tax is levied upon the proceeds from automatic music machines as the act now stands. Therefore, the * Certificate of Indebtedness’ filed by the defendant Commissioner against the plaintiff and his property, in the office of the Circuit Clerk of Poinsett County, Arkansas, is hereby deemed void and shall be expunged from said records; that the defendant Commissioner is hereby enjoined from filing any other certificates or taking any action for the collection of this tax. Costs are adjudged against the defendant Commissioner in his official capacity. Precedent will be prepared to conform herewith.
“19 September 1961
“Gene Bradley
‘ ‘ Chancellor ’ ’

We do not deem it necessary to add anything to the Chancellor’s opinion concerning the application of Act No. 386 of 1941, as his reasoning is clear and sound. However, the appellant also relies most strongly on Act No. 120 of 1959, which appellant claims to be a Legislative recognition that the Cross Receipts Act applies to coin-operated machines like those in this case; and we now consider said Act No. 120 with relation to the facts in the case at bar. The Act No. 120 was captioned “AN ACT to License and Regulate The Operation of Amusement Carnes, The Levying of a Tax Therefor, And For Other Purposes.” Section 4 of the Act No. 120 levied an annual privilege tax of $250.00. Section 6 required that any licensee under the Act must, within ten days from the purchase or lease of such amusement device, present evidence to the Revenue Commissioner that the sales tax has been paid on the machine leased or purchased. Section 7 of Act No. 120 is the section strongly relied on by the Commissioner. That Section reads:

“In all cases where a licensee hereunder leases amusement devices to others, it shall be the duty of the licensee to keep records of the amount of rent received by the licensee and the amount retained by the lessee and to furnish carbon copies of such records to the lessee. It is the duty and obligation of the~ licensee to ascertain the amount of sales tax due on the receipts of the machine and to withhold the amount of such tax from such receipts and to remit same to the Arkansas Revenue Department. The amount of such sales tax shall not be taken into consideration in determining the rent due the licensee. All records required to be kept by the licensee under the provisions of this Act shall be made available to the Arkansas Revenue Commissioner within a reasonable time after request or the license of the offending licensee may be revoked as provided herein.” (Emphasis our own])

We have italicized the portion of the Act upon which the appellant most strongly relies. We construed this Act in the recent case of Brown v. Cheney, 233 Ark. 920, 350 S. W. 2d 184. The said Act No. 120 levied a privilege tax on coin-operated machines like the ones in the case at bar. But the said Act No. 120 does not in Section 7 above, or in any other section, levy a gross receipts tax on the money received in the operation of the said machines. Taxes are not levied by implication. The only tax levied by Act No. 120 was a privilege tax. The Act does say that the owner or operator of a machine should “ascertain the amount of sales tax due on the receipts of the machine and to withhold the amount of such tax from such receipts and remit same to the Arkansas Revenue Department.” But, by the italicized language (as well as other language in the Act) the Legislature was saying that the operator should perform those tasks if and when there should be a gross receipts or sales tax levied against the money received in the operation of the machine. The Act No. 120 did not levy the sales tax or gross receipts tax or say anywhere that a gross receipts tax or sales tax was levied against the money received from the operation of said machine. The Act No. 120 merely stated what the operator would have to do if and when a gross receipts tax was levied, but such tax has not yet been levied, as shown by the Chancellor’s Opinion. And what the Chancellor quoted from Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S. W. 2d 81, is apropos here:

“It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power.”

If the Legislature had desired to levy a gross receipts tax or sales tax against the proceeds received in the operation of these coin-operated music machines, all the Legislature would have had to say was that such gross receipts tax was levied. We find no such language in the Act No. 120.

Affirmed.

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

Carleton Harris, Chief Justice,

dissenting. Section 84-1903 levies an excise tax of three per cent on gross receipts derived from all sales to qny person subsequent to the effective date of the act. The pertinent portion, as mentioned by the Majority, reads as follows:

“(e) The sale of tickets or admissions to places of amusement, to athletic, entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, . . .”

The use of the word “or” is quite significant, because, to me, this language definitely levies a tax on sales in addition to ticket sales occasioned by attendance at an athletic or recreational event. The coin inserted into the music machine gives access to the use of an amusement facility. The coin is inserted into the box solely because the individual doing so wants to be amused — he is amused or entertained by the record he hears; that is the purpose of a music machine — to amuse or entertain, and it is an amusement facility. It is readily apparent that the Majority and I are in disagreement over the meaning of the word “entertainment”, for they cite the definition of “entertainment” as “that which engages the attention of agreeably or to occupy pleasurably”, and then state:

‘ ‘ If one must be pleasurably and agreeably occupied to be entertained and amused, how will we allow for music which is sad and depressing!”

I am unable to comprehend the logic of this statement, for I do not understand that music must emotionally move one to gleefully jump up and down before it can be considered entertaining. “Tara’s Song” (theme song of “Gone With the Wind”), certain religious hymns, and many of the classic numbers written by Stephen Foster, such as “My Old Kentucky Home”, “Beautiful Dreamer”, and “I Dream of Jeanie With the Light Brown Hair”, leave one somewhat melancholy, but would anyone say that because of this, the listener is not entertained or agreeably occupied, when hearing these selections beautifully rendered? Some of the outstanding motion pictures and TY performances leave one sad— but does this keep the viewer from being entertained? The answer is too obvious for further comment.

I personally find no room to doubt that the Legislature, under the language of the statute quoted, definitely included music machines in levying the tax. The actual intent of the legislature is made even more obvious by the passage of Act 120 of 1959. The Majority quote from Section 7 of that act as follows:

“It is the duty and obligation of the licensee to ascertain the amount of sales tax due on the receipts of the machine and to withhold the amount of such tax from such receipts and to remit same to the Arkansas Revenue Department. The amount of such sales tax shall not be taken into consideration in determining the rent due the licensee.”

Section 11 of that same act reads as follows:

“ Prior to the issuance or renewal of any license hereunder, the Revenue Commissioner shall require the applicant to procure a suitable surety bond in the principal sum of $3,000.00 to insure the faithful and prompt payment of all sales tax, use tax or privilege tax which may become due in connection with the operation of the licensed business and to secure the faithful performance of all duties and obligations imposed by this Act. ’ ’

I certainly cannot, under any stretch of the imagination, understand why the legislature will provide the manner of collecting the sales tax — and even further, require a surety bond to insure the prompt payment of all sales tax, if, as the Majority say, “the legislature was saying that the operator should perform those tasks if and when there should be a gross receipts or sales tax levied against the money received in the operation of the machine.” Never before have I heard of a legislature passing an act providing for the collection of a tax, and providing further that a bond shall be posted for that purpose, purely in contemplation of the fact that some future legislature might desire to levy such a tax. What would be the purpose of “pre-tax” legislation? Any future General Assembly in enacting such a measure, can well include the discussed language in any act passed —and, of course, is not bound by the language of the previous legislature. In other words, I find not one scintilla of explanation for the legislature to use the discussed language in Act 120 for the reason stated by the Majority.

Sales tax is payable on gas, electricity, water, ice, steam, or any other utility or public service except transportation services. The tax is chargeable on service by telephone and telegraph companies, hotel, apartment, and motel rooms, printing, photography, automobiles, and sales of practically all tangible personal property, even to such necessities as bread, milk, medicines, and drugs. Under the Majority holding, though all of these items are taxed, the legislature saw fit to exempt the “juke-box”. I am convinced that the language of Section 84-1903 levies a tax on the machines in question, and the Revenue Department should be permitted to collect such a tax.

I therefore respectfully dissent.

Paul Ward, Associate Justice,

dissenting.

In my judgment the majority opinion is indefensible.

It goes at length into a discussion of the meaning of the several sub-sections of Ark. Stats. § 84-1903 which have no relevancy to the question under consideration. The only part of the section which need to be considered reads as follows:

“There is hereby levied an excise tax of three per centum (3%) upon . . . fees for the privilege of having access to or the use of amusement, [or] entertainment . . . facilities . . .”

It makes a strained attempt to explain why a juke box is not an “amusement” or an “entertainment” facility.

It laboriously explains that Act 120 of 1959 does not place a sales tax on juke boxes. Of course it doesn’t, and no one has contended it does. I am firmly convinced the legislature would not have (in Act 120) made provisions for collecting a tax on juke boxes if it had not already placed (by § 84-1903) a tax on them. The majority adroitly evade the above by saying: “The Act No. 120 merely stated what the operator would have to do if and when a gross receipts tax was levied.” The simple and direct answer to the above statement is that Act 120 does not so state. Moreover, it makes such more sense to me to conclude the legislature (in passing Act 120) had in mind a tax already levied than a tax which might some day be passed.

       It must be borne in mind that the tax sought to be collected by the Commissioner in the case at bar covered the period from July 1, 1957 through June 30, 1960, and the Act No. 120 of 1959 certainly could not retroactively apply in any event to receipts before the effective date of the Act.

       Emphasis supplied.

       My emphasis.


author: Ed. F. McFaddin, Associate Justice.

text:
    Haller v. Haller.
    5-2661
    356 S. W. 2d 9
    Opinion delivered April 9, 1962.

      Virgil Roach Moncrief and John W. Moncrief, for appellant.

      Botts & Botts, for appellee.
   Ed. F. McFaddin, Associate Justice.

From a decree awarding him a divorce and fixing child custody and support payments, the husband, Mr. Haller, prosecutes this appeal against the Chancery decision as regards divorce, child custody and support. The parties were married in 1954, and are the parents of a son five years of age. They separated in 1960; and Mrs. Haller filed suit for divorce, child custody, support, etc. Mr. Haller cross complained, seeking divorce, child custody, and property division. At the trial from which comes this appeal, the issue of property division seems to have been settled satisfactorily; but the other three issues remain.

I. The Divorce Issue. The Chancery Court denied Mrs. Haller’s petition for divorce, and she has not appealed ; so her claim is not before us. The Court granted Mr. Haller a divorce, and he claims the Court was in error, as he does not desire one. We thus have the strange spectacle of a man complaining because he received a divorce he had originally sought; but under the specific factual situation here presented, we conclude that Mr. Haller is correct, because, before final submission, he sought to dismiss his cross complaint for divorce. Mrs. Haller presented her case in chief; Mr. Haller presented his case; Mrs. Haller testified in rebuttal; and Mr. Haller testified in surrebuttal. Here is the concluding question asked Mr. Haller and the exact proceedings thereafter:

“The Court: That was after October 21st?
“A. Yes, sir.
£ £ Mr. Monerief: That is all.
‘' Mr. Botts : That is all.
" Witness excused.
“The Court: We have a complaint filed by Doris Haller against the defendant, Ralph Lewis Haller, under date of November 18, 1960, in which she seeks, among other things, divorce and absolute custody of the minor child and support and maintenance for the minor child, and she asks that she be awarded title and right of possession of certain property that the parties either purchased or were given to her in her individual capacity.
“The defendant was personally served and filed an answer November 28, 1960, denying the allegations of the complaint, and the defendant under date of December 19, 1960 filed a cross complaint in which he alleges that he is entitled to the possession of the minor son, Ralph Lewis Haller, Jr., and then under date of February 27, 1961 defendant filed an Amendment to his Cross Complaint in which he prays for a divorce from the plaintiff.
“Mr. Monerief: We withdraw prayer for divorce.
“Mr. Botts: We object.
“The Court (continuing): The complaint of the plaintiff for prayer for divorce, on the basis of the evidence and the testimony, is denied, and her complaint for divorce will be dismissed. The plaintiff will be given custody of the minor child of the parties, subject to right of defendant to visit with this child at any reasonable hour and at any reasonable time. The defendant will be ordered to pay $18.00 per week for support and maintenance of this minor child. Mr. Botts is allowed an additional attorney fee of $100.00.
“Mr. Moncrief: Again I want the record to show we are dismissing our cross complaint for divorce.
‘ ‘ The Court: The Court is ruling at this time it is too late to withdraw complaint asking for divorce.
“Mr. Moncrief: We are using the word we are ‘dismissing’ it and the Court is using the word ‘withdrawing’ it. As I understand it, the court is denying dismissal of the cross complaint asking for divorce.
“The Court: That is right. I am denying your motion. You are in effect leaving the cross complaint in the record as I believe it should be at this late hour. Now it is probably too late to take a nonsuit or dismissal.
“Mr. Moncrief: Note our exception to that ruling of the Court. ’ ’

The learned Chancellor evidently thought when each attorney said “That is all” and the witness was excused, that both parties had rested the case and submitted it for a decision. But we do not find the words “We rest” anywhere in the record. In the absence of the words “We rest,” the Court proceeded to forthwith deliver the factual findings; but, before Mr. Haller’s cross complaint for divorce was decided his attorney moved to dismiss it. The Court held that it was too late to dismiss the cross complaint; and in that ruling we conclude the Court was in error. Even if Mr. Haller did not have an absolute right to dismiss his cross complaint — which we hold he did — the Court still had discretion to allow him to dismiss his cross complaint for divorce; and under either theory we think the decree of divorce should be reversed.

Our statute on “Dismissal of actions” is § 27-1405 Ark. Stats., and says in part: “An action may be dismissed .. . . first. By the plaintiff before the final sübmission of the case ... to the court, . . .” After final submission, the motion for voluntary nonsuit is within the discretion of the Court (Raymond v. Young, 211 Ark. 577, 201 S. W. 2d 583); but before final submission, the plaintiff (in this instance the cross complainant, Mr. Haller) has the absolute right to dismiss his cause of action. Our cases hold that a case is not submitted until the argument is closed and the case submitted to the jury or the Court. Carpenter v. Dressier, 76 Ark. 400, 89 S. W. 89; Mutual Benefit v. Tilley, 174 Ark. 932, 298 S. W. 215. In view of the record before us as heretofore detailed, we hold that Mr. Haller had not lost his absolute right of dismissing his cross complaint when Ms attorney stated such desire.

It must be remembered that the policy of the law is to maintain the marriage relationship, rather than to dissolve it. In C. J. S. Vol. 27A, page 27, “Divorce” § 8, holdings from the various jurisdictions are cited to sustain this text:

“It is generally recognized that the state or the public has an interest in the marital status, its continuance, and dissolution, but an unwilling party, although legally entitled to a divorce, cannot be compelled to procure a divorce, or to consent to a divorce, either ecclesiastical or civil, and it is always optional with a party who is legally entitled to a divorce whether to exercise the right. Thus, the guilty party in a divorce action has no personal right to insist that a divorce be granted against the wishes of the innocent spouse.”

With regard to his willingness to maintain the marital relation, Mr. Haller testified:

“Mr. Moncrief (continuing): Mr. Haller, for the sake of your boy, after you had heard and seen what you saw, for the sake of your boy would you have preferred to go ahead and make a home ?
“A. Yes, sir.”

So we hold that the divorce should not have been awarded to Mr. Haller against his express wishes.

Mrs. Haller relies on Rowell v. Rowell, 184 Ark. 643, 43 S. W. 2d 243, as being a case wherein the husband was not permitted to withdraw his suit for annulment, but the factual situation in the reported ease is entirely different from that in the case at bar. In the Rowell case, the husband had filed suit for annulment of the marriage. The wife had cross complained for divorce. She put on her evidence to overcome the allegations and insinuations in his suit for annulment. He then asked to dismiss his complaint, apparently in an attempt to defeat the Court’s jurisdiction; but the Court refused to dismiss his petition, denied him an annulment, and granted the wife a divorce. In the case at bar, the wife was denied the divorce; and the husband, in attempting to dismiss his cross complaint, was trying to maintain the marital status, which the law favors, as heretofore stated.

We therefore conclude that the decree of the Chancery Court awarding Mr. Haller a divorce was in error and to that extent the decree is reversed and the cause remanded with directions to set aside the divorce decree awarded Mr. Haller. Thus the parties remain husband and wife.

II. Child Custody and Support. Mrs. Haller all the time had the custody of the little boy; and Mr. Haller sought to have the Court give him the custody. We can not say that the Court erred in awarding the custody of the child to the mother. It is a well-established rule that the welfare of the child is the polestar; and there is nothing in the record to show that Mr. Haller could and would have provided a suitable home for the child. The award of $18.00 per week for support appears to be reasonable in view of the circumstances of the parties. We therefore affirm the decree of the Trial Court as regards child custody and support.

III. Visitation. The decree merely recites that the father is ‘ allowed to visit said child at reasonable times and under proper conditions. Mr. Haller insists that this indefinite language gives Mrs. Haller the right to determine when, where, in whose presence, and under what circumstances the father can visit with his son. The contention possesses merit, because there was testimony that the parents had disagreed as to what constituted reasonable times and proper conditions or circumstances for visitation and that Mrs. Haller had, on certain occasions, denied appellant the right to even see the child. Therefore, we think the Chancery Court might well state definite visitation rights for the father.

IV. Conclusion. The divorce decree granted on the cross complaint of the appellant is reversed and the cause is remanded with directions to set aside the divorce, so that the parties remain husband and wife. We affirm those portions of the decree that awarded custody of the minor son to his mother and awarded her $18.00 per week child support. The Trial Court will also provide definite visitation rights for the father. All costs are to be paid by Mr. Haller, together with an additional fee of $100.00 to Mrs. Hallers attorneys for services on this appeal.

       Attorney for Mr. Haller.

       Attorney for Mrs. Haller.

       In addition to the cases and authorities hereinbefore cited, we mention the following: In 138 A.L.R. 1,100, there is an annotation on “Right of plaintiff, or of defendant who has filed counterclaim or cross complaint, in an action for divorce, separation, or annulment, to a voluntary dismissal or nonsuit. And in 22 L.R.A. (N.S.) 999, there is a case note entitled “Right to enter decree of divorce against the objection of the spouse aggrieved.” See C.J.S. Vol. 27A, page 539, “Divorce” § 146; 17 Am. Jur. 521, “Divorce and Separation” § 378; and see also Dorsey V. Dorsey, 226 Ark. 192, 289 S.W. 2d 190.