author: George Rose Smith, J. Ed. F. McFaddin, Associate Justice,

text:
    Ising v. Ward.
    5-2042
    Opinion delivered February 29, 1960

      Sexton', Holland & Morgan and White & Martin, for appellant. . •

      Warner, Warner & Bagon, Ralph W. Robinson, for appellee.
   George Rose Smith, J.

The appellant, Lois Ward Ising, and the appellee, Harry Ward, were formerly husband and wife and are the parents of a three-year-old daughter, whose custody was awarded to the mother. This is an application by Mrs.' Ising for permission to take the child to Oklahoma, where Mr. and Mrs. Ising wish to establish their home. The chancellor denied the application upon the sole ground that the Isings’ new home, which is situated on a steep hill overlooking a lake, would not be physically safe for a small child. We have concluded that the application should have been granted. ........... — ...........

At the outset we recognize, as did the chancellor, that the parent having custody"of a child is ordinarily entitled to move to another state and to take the child to the new domicile. As we said in a similar case: “We do not think that the Chancellor erred in refusing to require appellee [the mother] to remain somewhat a prisoner in Arkansas because of the unfortunate divorce proceeding.” Antonacci v. Antonacci, 222 Ark. 881, 263 S. W. 2d 484; see also Thompson v. Thompson, 213 Ark. 595, 212 S. W. 2d 8; Nutt v. Nutt, 214 Ark. 24, 214 S. W. 2d 366; Langston v. Horton, 229 Ark. 708, 317 S. W. 2d 821. In our earlier cases the objection to an application of this kind has usually sprung from the loss of visitation rights that the protesting parent would suffer upon the child’s departure. That point is not involved here, for the proposed home in Oklahoma is not so far from Fort Smith as to interfere with the appellee’s decreed right to have his daughter with him every other, week end.

After having been married about eight years the Wards were divorced on March 27, 1959. Ward was then 67 years old; his wife was 27. Mrs. Ward received á property settlement and was awarded the custody of her infant daughter. ‘ There does not seein to have ever been any serious question about this mother’s fitness to have the care of her child. On this issue the record is replete with evidence indicating that the award of custody was correct; indeed, Ward candidly admits that his former wife is a devoted mother who takes excellent care of the little girl.

On June 12, some two and a half months after the entry of the divorce decree, Mrs. Ward married Orman Ising, aged 32, who was then living in Fort Smith. Ising testified that he and a partner had invested about $60,000 in the purchase of a boating and fishing dock on Lake Tenkiller in Tenkiller State Park, Oklahoma, which is about fifty miles from Fort Sinith. .Ising and his partner devote their time to the enterprise, which is said to be profitable.

On June 23 Mrs. Ising filed a petition asking -that she be permitted to take her child to a home that her husband had rented in Sallisaw, Oklahoma. At the first hearing upon this petition the chancellor found, with justification, that the Sallisaw rental arrangement had not been made in good faith and was actually a subterfuge. Upon this finding , the court refused to approve the petition, but the matter was continued to allow the Isings to show that a suitable home would be provided in Oklahoma.

At the two subsequent hearings Mrs. Ising abandoned the Sallisaw proposal and sought the court’s permission to move to a trailer located near the dock at Tenkiller Lake. This mobile home, which Ising bought new for $4,675, comprises a living room, kitchen, bathroom, and three bedrooms. It is equipped with electricity and running water. A social worker in the child welfare division of Sebastian county inspected the trailer and, after describing it in detail, testified that it was a fit, proper, and safe place for a three-year-old child. We find no reason to doubt that the trailer itself would be a suitable, comfortable home for the Isings and the child.

The chancellor’s disapproval was based solely upon the trailer’s location. It sits on a hill or ridge, from fifty to a hundred yards from the edge of the lake. Interested witnesses describe the descent to the water as a blnff or precipice, but we regard this as an exaggeration. Mabry, the park superintendent who lives within a hundred yards, testified that there is a drop of six or seven feet at the top and then a gradual slope down to the lake. This witness, who has children aged five and two, says that the slope in front of his own home is steeper than that in front of the Ising trailer and that he has not erected a fence along the edge, as Ising has done.

We are unable to agree with the appellee’s insistence that the slope of the ridge and the nearness of the deep lake present such hazards to a three-year-old child that the appellant’s petition should be denied. If one is inclined to be fearful the threat of danger can be discovered everywhere, in the crowded streets of the city or, as here, in the comparative seclusion of the countryside. We know, however, that in Arkansas and throughout America thousands and thousands of children, representing many generations, have grown up from infancy next to rivers, to lakes, to mountain slopes, and to countless other natural conditions fully as hazardous as those existing near •Tenkiller Lake. An attempt to shelter a growing child from every possible danger is manifestly futile, and it is certain that complete security cannot be achieved by means of a court decree. In practice the responsibility for choosing a child’s environment must ordinarily rest upon the parent having custody of the child. The normal love of a parent, especially of a mother, for her child provides the best possible assurance that the infant will not be needlessly exposed to danger. We find in this record no proof to persuade us that the appellant cannot be relied upon to look after her daughter in the new home that she and her husband wish to occupy.

The decree is reversed and the cause remanded for the entry of a decree granting the appellant’s petition. It will be appropriate for the chancellor to require a bond from the appellant, within her means, to protect the appellee’s rights of visitation, and the burden of providing the child’s transportation to and from her visits to Fort Smith should he fixed by the court’s decree.

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

Ed. F. McFaddin, Associate Justice,

(Dissenting). In deciding the present case the Chancellor remarked that these child custody cases are ‘ ‘ the toughest cases we have to decide”; and I thoroughly agree with that remark. At the conclusion of the evidence, the Chancellor delivered an oral opinion, which occupies six pages in the transcript, and shows rather clearly how the appearance of the witnesses had impressed the Chancellor. I am unwilling to reverse Ms opinion in a close case like this one, when I see only the printed page.

Remember: no one is trying to take the custody of the child from the mother. The father of the child had made a substantial settlement on the mother so she could have a nice home in Fort Smith and have the child reared in a good community, with access to churches, schools, playmates, and doctors. But the mother married a younger man, and now wants to be with the new husband, which necessitates taking the child to live in a trailer on the banks of a lake, miles from churches, schools, playmates, or doctors.

The mother’s first duty is to her child. The mother should stay in Fort Smith and raise her child under proper surroundings, and cease living in a trailer on the banks of a lake in order to be near her new husband. The obligations of her parenthood should be held to impose a superior duty on the mother. I would affirm the Chancery decree, which prevented the mother from removing the child from Arkansas.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice. Carleton Harris, Chief Justice,

license: Public Domain

text:
    Hood v. State.
    5-1937
    332 S. W. 2d 488
    Opinion delivered February 29, 1960.

      Norton & Norton, for appellant.

      Bruce Bennett, Atty. General, By: Bill J. Davis, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

One John Puckett was charged in the St. Francis Circuit Court with the crimes of forgery and uttering. On January 27, 1958, appellant herein made Puckett’s bond. On February 11th the felony information was amended charging additional offenses to bring the case within the Habitual Criminal Act. The case was set to be tried on February 24th.

On February 19th Hood wrote to T. E. Christopher, Circuit Clerk at Forrest City, as follows: “As per our conversation of thirty minutes ago, I am enclosing a letter from the State Hospital stating that Johnny Puckett is a patient at this time. Enclosed is a stamped, addressed envelope which I would appreciate very much if you would use and advise me the date to which his trial is passed.” Enclosed with Hood’s letter was a letter from the State Hospital stating that Puckett was admitted on February 18th under a voluntary committment under the provisions of Act 411 and was at that time a patient in the hospital.

On February 20th Fletcher Long, Deputy Prosecuting Attorney, wrote to Hood:

“Your letter and enclosure, mailed to Mr. T. E. Christopher, Clerk, has been referred to me.
“You are informed that from the State’s point of view, there is nothing for the Court to consider at the present time but the question of forfeiting your bond on Monday, February 24th.
“If a motion for continuance is framed and presented because of the contents of the letter from the State Hospital, the State will perhaps concede the point. I suggest that you consult your attorney or Puckett’s Little Rock attorney in this matter, inasmuch as we are informed that Mr. West, local counsel for Puckett, has relieved himself of further responsibility in the matter.
“In the event that the motion is properly presented, and is granted, you are hereby informed that we will make application for a much larger bond, on the basis of Puckett’s past record, and the more severe punishment which could result from our amendment to bring this case under the habitual criminal statute.”

Evidently no formal application was made to the court for a continuance, and on February 28th the court entered an order forfeiting the bond. Later Hood stated that he thought the case had been passed and it was not until April that he learned that the bond had been forfeited.

On April 18, 1958, Hood filed a petition to set aside the bond forfeiture, which was overruled by the court on the same date.

On April 21, 1958, summons was issued for Hood directing him to appear on April 28th and show cause why judgment should not be rendered on the bond forfeiture.

On August 16th and prior thereto, motions to quash and demurrers previously filed by Hood were overruled.

On August 16th Hood filed an answer to the summons to show cause why judgment should not be rendered. Among other things the answer alleges:

That on February 24th when the case was to be tried, Puckett was insane and confined in the Arkansas State Hospital and was unable to come to court.

That Puckett is insane and is still confined to the State Hospital and has been committed to the hospital by the Pulaski Circuit Court.

That an alias warrant was issued by the St. Francis County Circuit Court on February 24th at the time Puckett failed to appear for trial; that this warrant is in the hands of the Sheriff of Pulaski County and will be executed promptly in the event Puckett is released from the State Hospital and he will be brought to St. Francis County for trial.

Appellant asked for a jury trial, but his motion was overruled, and on February 6, 1959, without hearing any evidence, there was entered a summary judgment against Hood. In his objections to the rendition of the judgment, Hood’s attorneys cleaiiy stated that on the date set for trial, February 24, 1958, Puckett was confined in the State Hospital for Nervous Diseases and since that time he has been adjudged insane and duly committed by the Pulaski Circuit Court; that a warrant has been issued by the St. Francis Circuit Court and that such warrant is in the hands of the Sheriff of Pulaski County and will be executed if Puckett is released from the State Hospital and that Puckett will be returned to St. Francis County.

The great weight of authority is to the effect that the bondsman will be exonerated from liability on the bail bond where the principal is confined because of insanity. ‘ ‘ The general rule in criminal cases is that the sureties may be exonerated from liability for failure to produce the principal at the trial, or a forfeiture may be set aside, where such failure is due to the fact that the principal is in confinement because of his insanity.” 6 Am. Jur. Rev. p. 135.

“Ordinarily, insanity of the principal is a good defense for nonperformance of the obligation of the bond.” 2 R. C. L. p. 55, par. 67.

There is an annotation on the subject in 7 A. L. R. p. 394. There the annotator says: “In criminal cases, it seems to be well established that bail will be exonerated from liability for failure to produce the principal at the trial when such failure is due to the fact that the principal is in confinement because of his insanity” (citing cases).

In Briggs v. Com. (1919), 185 Ky. 340, 214 S. W. 975, the court said: “In this state, where the principal is actually confined in an insane asylum, being thus in the custody of the state, and beyond the power of the sureties to produce him, the latter is discharged.”

In our cases of Adler v. State, 35 Ark. 517, the defendant had been taken out of the state and confined in a mental institution in New York. It was held that the bondsmen were liable, but that case is clearly distinguishable from the case at bar. .In the Adler case there was no offer to ever produce Kahn at any term of court, and furthermore, it appeared that the bondsmen deliberately sent the principal to New York out of the jurisdiction of the courts of this state, and this Court said: “The inference from the plea is, that they [the bondsmen] assumed the responsibility of sending him there, Avithout consulting the court, or permitted others to do so. If, by the law and regulations of the asylum, he Avas detained there, as alleged, and out of the process of the court, it was not the fault of the state, but the result of their sending him there, or permitting him to be sent. ... It Avould be unsafe to the public to permit the bail of a person charged with murder to take it upon themselves to send him out of the state, or permit him to be sent, to be treated for insanity, or any other disease, and then plead his absence in discharge of the bail-bond.”

In referring to the Adler case the annotator in 7 A. L. R. p. 395 says: “It was held no defense to the sureties on the bond that the accused was confined in an insane asylum in another state, and so was unable to attend his trial, where, it appeared that the sureties themselves had assumed the responsibility of sending the accused there, without consulting the court or permitting others to do so.”

In the case at bar it does not appear that Hood had anything whatever to do with Puckett’s being admitted to the State Hospital. There is no indication that Hood sent him to the State Hospital or approved of his being admitted to the State Hospital, and, furthermore, at no time has Puckett been beyond the process of the St. Francis Circuit Court. An alias warrant was isued by the court on February 24, 1958, and yet up until the time the judgment was rendered on the bond the warrant had not been served, although Puckett was still confined in the State Hospital. The trial was set for February 24th and Puckett did not appear; that is when the alias warrant was issued. Both the Clerk of the Court and the Prosecuting Attorney knew that Puckett was in the State Hospital. A warrant of arrest could have been executed and Puckett actually produced in court before the bond was ever ordered forfeited on February 28th; but this was not done.

The character of the plea of the bondsman in this case raises a question of fact that should be decided by a jury. In Washington v. State of Mississippi, 98 Miss. 150, 53 So. 416, the defense to the bond forfeiture was that the principal was dead. It was held that this was a question of fact that should be submitted to a jury. To the same effect is Short, et al v. State, 16 Tex. 44. See also Bank of Eau Claire v. Reed, 232 Ill. 238, 122 Am. St. Rep. 66, 108, and Hollister v. U. S., 145 F. 773. In State v. Sanders, 153 N. C. 624, 69 S. W. 272, the court said: “When the forfeiture of a recognizance is moved for, if all the matters are of record, the judge decides without the intervention of a jury. But when the answer raises an issue of fact, the defendant is entitled to have the matter passed upon by a jury” (citing cases). Whether the nature of Puckett’s confinement in the State Hospital was such as to relieve the bondsman from the bond forfeiture is a jury question.

Reversed and remanded.

Carleton Harris, C. J., and Ed. F. MoFaddin and G-eorge Rose Smith, JJ., dissent.

Carleton Harris, Chief Justice,

dissenting. In my view, the judgment against Hood was properly rendered because the “offer of proof” submitted by appellant prior to the rendition of judgment, contained nothing that constituted a defense. Appellant offered to prove that ‘ ‘ on or about February 18,1958, Johnny Puckett was admitted to the State Hospital under the provisions of Section 13, Act 411, of 1955 (Ark. Stats. 83-713, supplement), and on the appearance day, February 24, 1958, he was still being held under the statute referred to at the State Hospital, and no written notice had been given by him or his counsel of his desire to leave.” This section, inter alia, provides:

‘ ‘ Under such rules as it may prescribe the Commission or its authorized representative may receive as a patient for treatment, any alcoholic resident of this State against whom no criminal charges are pending, and who shall voluntarily apply for treatment, and may retain for not more than ninety (90) days and treat and restrain such person in the same manner as if committed by order of court, provided, however, that such person must be released within ten (10) days after receipt in writing of notice from such person (or counsel for such person) of his intention or desire to leave.”

Puckett was admitted under this section, not as an insane person, and, of course, was not properly admitted because criminal charges were pending against him at the time (though this was unknown to the hospital authorities).

In the next paragraph (b), of his offer of proof, appellant states:

‘ ‘ On February 19,1958, defendant Hood informed the Clerk of St. Francis County, that Puckett was in the State Hospital, and that for that reason Defendant Hood would not be able to produce him in Court on the appearance day, February 24, 1958; and Defendant Hood was then told by the Clerk that the case would be continued if Defendant Hood would furnish the Clerk with a letter from the State Hospital authorities stating that Puckett was a patient at the State Hospital. Such a letter was furnished to the Clerk by Defendant Hood on February 20th, 1958, and Defendant Hood had no reason to suppose, until some time in April, 1958, that the case had not been continued in accordance with the Clerk’s assurances to him.”

The letter referred to simply certified that “Johnny D. Puckett was admitted to the State Hospital on February 18, 1958, on a voluntary commitment under the provisions of Act 411, and at the present time is still a patient in this hospital. ” It is therefore apparent that Hood, one day after Puckett voluntarily went to the hospital, knew the whereabouts of the latter. He is presumed to have also known that this admission was contrary to the statute, and the hospital, in all probability, would have released Puckett immediately upon receiving notice. There was no offer to prove that Hood made such an effort. Relative to appellant’s statement, “Defendant Hood had no reason to suppose until sometime in April, 1958, that the case had not been continued in accordance with the Clerk’s assurances”, the record reflects otherwise, for on February 20th, the day following Hood’s notice to the clerk, Fletcher Long, deputy prosecuting attorney for St. Francis County, advised Hood as follows:

“Your letter and enclosure, mailed to Mr. T. E. Christopher, Clerk, has béen referred to me.

You are informed that from the State’s point of view, there is nothing for the court to consider at the present time but the question of forfeiting your bond on Monday, February 24th. If a motion for continuance is framed and presented because of the contents of the letter from the State Hospital, the State will perhaps concede the point. I suggest that you consult your attorney or Puckett’s Little Rock attorney in this matter, inasmuch as we are informed that Mr. West, local counsel for Puckett has relieved himself of further responsibility in the matter.”

Hood therefore had notice that the State would not accept the letter to the Clerk, and was further notified that Puckett’s attorney was probably no longer connected with the case. Despite this knowledge, no further effort was made to have Puckett present in Court, and the forfeiture on the bond was taken — and in my opinion, rightly so. The purpose of a bond is to insure that a defendant will be present when his case is set, and Hood, by merely writing to the Clerk, did not excuse himself from any further obligation to have Puckett present.

Let it be pointed out that there is nothing in the record to indicate that Puckett was insane on February 24,1958. To the contrary, the doctor’s report shows that he was voluntarily admitted for alcoholism. Further, there is not even an allegation in appellant’s offer of proof that Puckett was insane on February 24th.

I do not reach the question of whether appellant is entitled to a jury trial, for under the above statement of facts, I am firmly of the opinion that the trial court’s judgment should be affirmed.

Mr. Justices McFaddin and George Bose Smith join in this dissent.

       My emphasis.


author: Jim Johnson, Associate Justice.

text:
    Kansas City Southern Transport Co., Inc. v. Ark. Best Freight System.
    5-2036
    332 S. W. 2d 493
    Opinion delivered February 29, 1960.

      Hardin, Barton, Hardin £ Garner, for appellant.

      Thomas Harper, for appellee.
   Jim Johnson, Associate Justice.

This case involves a controversy between two common carriers of freight, by motor vehicle.

On the 13th day of September 1955, appellant, Kansas City Southern Transport Company, Inc., hereinafter referred to as KCS, and appellee, Arkansas-Best Freight System, Inc., hereinafter referred to as ABF, entered into what is commonly referred to as a “trailer interchange contract”, which contract described certain rights, duties and obligations pertaining to the interchange of trailers.

On January 17,1956, while one of appellant’s trailers was in appellee’s possession, by virtue of an earlier interchange of trailers, appellant’s trailer was destroyed by fire.

On November 29, 1956, complaint was filed by ABF against KCS charging that the parties had interchanged trailers admitting the destruction of KCS’s trailer while in ABF’s possession, alleging that ABF had tendered to KCS a trailer of equal value to KCS’s destroyed trailer; that KCS had refused to accept said trailer in satisfaction of its claim against ABF; that KCS had refused to return to ABF the trailer that it had received in exchange at the time ABF received KCS’s trailer, which was destroyed; that ABF ivas liable to KCS for the market value of the trailer which did not have a market value exceeding $1,500 at the time of the destruction and that from and after the 24th of February 1956, KCS was liable to ABF under the terms of the interchange agreement, which was attached to the complaint and made a part thereof, in the amount of $8.00 per day until KCS delivered into the possession of ABF the trailer that it had received in exchange.

Demurrer was filed by KCS, defendant below, supported by memorandum, on the ground that the Circuit Court would not have jurisdiction to determine the rights of the - parties, as alleged in the complaint, and that by reason thereof the Chancery Court was the court that would have jurisdiction over the cause. The demurrer was overruled. Since the value of trailers fell within a specialized field, the parties agreed to arbitrate the value of KCS’s destroyed trailer and of ABF’s trailer offer in settlement, though KCS contended that the value of the latter had no bearing on the issues since it was entitled to recover the value of its trailer at the time of destruction. Arbitration resulted in the fixing of the value of both trailers at $2,100. Thereafter, Answer and Cross-Complaint was filed by KCS denying all material allegations of the Complaint and alleging that ABF was indebted to it for $2,100, the value of KCS’s destroyed trailer as found by arbitration, and further alleging that ABF was indebted to it on a rental basis from and after July 19, 1956, on another trailer that had been received by ABF on a rental basis rather than by interchange. KCS specifically denied being indebted to ABF for any rental as complained of in the Complaint.

ABF filed answer to KCS’s Cross-Complaint denying any indebtedness to it as set forth in the Cross-Complaint.

Finally on the 25th day of June 1959, the Court entered a judgment which interpreted the interchange contract and made a determination as to the rights of the parties. The adjudging portion of said judgment is as follows:

“It is, therefore, considered, ordered and adjudged that the sole remaining issue in this case, to-wit the determination of the correctness of plaintiff’s contention as to the excess possession of trailers, be transferred to equity for the purpose of an accounting between the parties and upon the making of such determination, defendant shall be adjudged liable for trailer rental at the rate of $8.00 per day per trailer for any such excess, as aforesaid, and plaintiff shall be adjudged liable to defendant for $2,100, as aforesaid, to which findings, judgment and order of the Court, the defendant excepts and causes its exceptions to be noted of record.”

For reversal appellant relies on three points. The only one we reach in this opinion is as follows:

“The Court erred in entering judgment and acted in excess of its jurisdiction.”

We agree with the Circuit Judge that since an accounting is involved the cause should be transferred to Equity. Goodrum v. Merchants & Planters Bank of England, 102 Ark. 326, 144 S. W. 198, Ann. Cas. 1914A, 511; and when Equity takes jurisdiction it does so for all purposes, Jarett v. Langston, 99 Ark. 438, 138 S. W. 1003. The judgment is therefore reversed and remanded to Circuit Court with directions to transfer the whole cause to Equity.


author: Carleton Harris, Chief Justice.

text:
    Vesper v. Woolsey.
    5-2089
    332 S. W. 2d 602
    Opinion delivered March 7, 1960.

      Jack Yates, Douglas O. Smith, Jr., Warner, Warner & Ragon, for appellant.

      Jeta Taylor, Shaw, Jones S Shaw, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a decree of the Franklin Chancery Court which found that appellants and appellees hold certain lands in Franklin County as tenants in common. The court, in its decree, found that appellees, Harold Woolsey and Elmer Childers, each own an undivided one-fourth interest, and appellants, 'Jack Vesper and Beatrice Vesper, own an undivided one-half interest as tenants by the entirety. The court found that the lands were not subject to division in kind Avithout material prejudice to the rights of the parties (this fact was stipulated), and further held that appellants were entitled to reimbursement for certain expenditures made for improvements in the amount of $627.38. The property was ordered sold, and the net proceeds (after cost of action and sale, and reimbursement) ordered divided according to the respective interests of the parties, heretofore set out. From such decree, appellants bring this appeal.

The record reflects that Ernest Locke purchased the property in question on October 27, 1917, and he and his wife, Pearl, lived on the premises until Mr. Locke’s death in April, 1925. He died without issue, leaving as his heirs tAVO brothers, Cecil and Tom Locke, and one sister, Susie Locke Childers. Sometime after the death of her husband, Pearl Locke moved from the premises and lived with her parents for two or three years, renting the property during this period. In 1929, Pearl Locke married R. E. Protheroe. The evidence at this point is slightly in conflict relative to where Pearl and Protheroe lived for the first few months following their marriage. However, it is established that Avithin three to six months, they were living on the property in question, and continued to live there for the balance of their lives. In 1934, the lands were forfeited for nonpayment of taxes, and the Protheroes obtained a tax deed from the State in 1938. In 1939, these lands again forfeited for nonpayment of taxes, and a redemption deed was issued by the State to R. E. Protheroe and Pearl Protheroe. During the period of their occupancy, the Protheroes executed a right-of-way to the Arkansas Western Gas Company, giving the latter the right-of-way to lay a pipe line and to construct telegraph and telephone lines over the property, and executed three different oil and gas leases (two to the same company and one to Alfred McLane). These leases ran for a period of five and ten years, and all contained a clause to the effect that “if said lessor owns a less interest in the above described land than the entire undivided fee simple mineral estate therein, then the royalties and rentals herein provided shall be paid the lessor only in proportion which lessor’s fee simple mineral interest therein bears to the whole and undivided mineral estate in the lands.”

In November, 1954, Pearl Protheroe died without issue, leaving as her heirs a sister, Maude Benson, and the children of two deceased brothers. Protheroe continued to live on the premises, and executed two more oil and gas leases to the gas company, similar to the ones theretofore executed. In April, 1958, Protheroe died. Under the terms of his will, the property was devised to appellants. Taxes on the lands, after the death of Locke, were paid by Pearl until the tax deed was obtained in 1938, following which, they were paid in the name of R. E. Protheroe. Following Pearl’s death, Protheroe continued to pay the taxes until his death. In May, 1958, Cecil and Tom Locke and Susie Locke Childers (brothers and sister of Ernest Locke), conveyed, by quit-claim deed, their interest in the property to appellees. In October, 1958, appellees instituted suit praying partition of the lands. Appellants, in their pleadings, denied that appellees held any interest, and contended that they (the Vespers) were the sole owners of the property in question.

For reversal of the court’s decree, appellants assert that “Appellees’ claim is barred by both the two year and seven year statute of limitations (Ark. Stats. 1947, § 37-101 and Ark. Stats. 1947, § 34-1419). Appellees’ claim is barred by the doctrine of laches.” We proceed to a discussion of these contentions.

Relative to the first point, appellants argue that the proof reflects that the claim of Pearl and R. E. Protheroe was adverse to the claim of appellees and their assignors for more than the statutory seven year period. In so contending, appellants rely upon the tax deed, tax payments, right-of-way grant, and the oil and gas leases executed by the Protheroes, asserting that these acts were evidence of the intention to exclude the co-tenants. It is further argued that the claim of appellees is barred by the two year tax statute of limitations.

Upon the death of Ernest Locke, Pearl Locke became endowed with an undivided one-half interest in the estate, the heirs of Locke becoming the owners of the other undivided one-half interest, the latter interest, however, subject to the homestead right of Pearl Locke. Pearl, therefore, in addition to holding as tenant in common, also held the privilege of possession because of her homestead right in the property. It is asserted that Pearl abandoned the property as a homestead, and that this interest passed out of the picture, hut we do not agree. The record reflects that she stayed away from the property two or three years, living with her parents, hut there is no evidence that she intended, in moving away, to abandon the Locke property as her homestead. Following her marriage to Protheroe, she returned to the premises within a few months. Of course, intention to abandon is an issue of fact, and in such a situation, evidence is rarely clear; nor, in the case before us, does the evidence clearly reveal Pearl’s intention. However, the legal presumption is that the homestead right continues until it is clearly shown that it has been abandoned. In City National Bank v. Johnson, 192 Ark. 945, 96 S. W. 2d 482 (1936), the appellee was absent from her homestead for four years, during which time she lived in Oklahoma. This Court held that the homestead was not abandoned, and stated-:

“All presumptions are in favor of the preservation and retention of the homestead. WTien property has been impressed with the homestead character, it will be presumed to continue so until its use as such has been shown to have terminated. 29 C. J. 961.

As we have said, the exemption laws are to be construed liberally. The Constitution provides for the homestead, and, when once established, the presumption is that it continues until it is shown by the evidence that it has been abandoned. The question of homestead and residence, being a question of intention, must be determined by the facts in each case, and the chancellor’s finding of fact will not be disturbed unless it appears to be against the preponderance of the evidence.” See also Harris v. Ray, 107 Ark. 281, 154 S. W. 499 (1913). The widow is permitted to rent the homestead, as was done in this instance by Mrs. Protheroe. Garibaldi v. Jones, 48 Ark. 230, 2 S. W. 844. Coleman v. Gardner, Admr., 231 Ark. 521, 330 S. W. 2d 954. There is no requirement of continuous occupation of a homestead to continue it as such. Butler v. Butler, 176 Ark. 126, 2 S. W. 2d 63. Furthermore, the homestead right acquired from Locke was not forfeited by her remarriage to Protheroe. Stone v. Stone, 185 Ark. 390, 47 S. W. 2d 50.

Nor do we agree that appellants’ claim is strengthened by the tax deed obtained from the state by the Protheroes, the tax payments, or the execution of the various leases heretofore referred to. With respect to the deed, aside from the fact that it contains only a part description, we have repeatedly held that the acquirement of a tax title by a tenant in common operates as a redemption for the benefit of all the tenants. Sanders v. Sanders, 145 Ark. 188, 224 S. W. 732. Spikes v. Beloate, 206 Ark. 344, 175 S. W. 2d 579, and cases cited therein. In order for the possession of a tenant in common to be adverse to his co-tenants, knowledge of snch claim must be brought home to them directly or by such notorious acts of unequivocal character that notice may be presumed. Hildreth v. Hildreth, 210 Ark. 342, 196 S. W. 2d 353. We think the evidence insufficient to establish this notice.

Be that as it may, there is even a stronger reason why the deed and tax payments did not enhance the title of Pearl and R. E. Protheroe, or serve as the basis for a claim of adverse possession. We have already pointed out that Pearl Protheroe did not lose her homestead right in the property, but rather maintained same until her death. Accordingly, even without her status as a tenant in common, she had the absolute right to possession of the premises for life, and appellees and their assignors were without authority to demand, or to enter onto, the premises, until her death. In Ingram v. Seaman, 223 Ark. 414, 267 S. W. 2d 6 (1954), Ave said:

“But Mr. Ingram claims that the deeds he received from the State and the Improvement Districts set in motion the Statute of Limitations against the remaindermen. A widoAAr, having what is similar to a life estate in the homestead, has the duty to pay the taxes, and she cannot remain in possession and acquire a tax title adverse to the remaindermen. See Inman v. Quirey, 128 Ark. 605, 194 S. W. 858. Thus Mrs. Paralee Seaman Ingram could not have acquired a tax title adverse to the plaintiffs.”

Further, in the Opinion:

“In 41 C. J. S. 765, the rule is stated:
‘The purchase by a husband of an adverse claim to his wife’s land inures primarily to the benefit of her title, and to his benefit only so far as his marital interests are concerned. Thus a husband cannot acquire a tax title to his wife’s lands, * * V ”

Summarizing our views relative to appellants’ primary contention, we find that Pearl Protheroe not only held as a tenant in common, but also held the property as a homestead, and was entitled to its possession for her natural life; further, that since the tax title acquired by the Protheroes amounted to a redemption, the two year statute of limitations on tax sales has no application, Sanders v. Sanders, supra; nor could a claim of adverse possession for the seven year period be anchored on the tax title. The execution of the instruments did not constitute “such notorious acts of unequivocal character” that notice might be presumed, and there is no evidence that a claim of adverse ownership was “brought home” to the Locke heirs directly. The possession of the land by Pearl Protheroe was entirely consistent and in conformity with the rights and interest that she held.

In Watson v. Hardin, 97 Ark. 33, 132 S. W. 1002, we said:

“The testimony adduced upon the trial of the case proved that Rachel Watson retained possession of the land after the death of Steve Watson solely by reason of the fact that she was his widow. Her claim to the land was derived from Steve Watson, and was in recognition of his right and title thereto. Her claim was therefore in recognition also of the interest of the heir of Steve Watson, if he had an heir. In its inception her claim of possession of the land was not hostile to the right or interest of the heir of Steve Watson, but was perfectly consistent and in conformity with such right and interest. It is true that her claim and possession might have been of such a nature as to amount to an entire disseizion of the heir and an entire denial of his rights, so as to result in an acquisition of title by adverse possession; but, before her possession could become adverse, it was necessary for her to first repudiate the title of Steve Watson and to disavow any claim thereto as his widow; and it was also essential that notice of such disavowal by heir of title as widow should be brought home to the heir. If Rachel Watson acquired possession of the land as widow of Steve Watson, and therefore in conformity with the right and interest of his heir and not in opposition to such interest, then, in order to constitute possession that would he adverse, it was incumbent upon appellee to prove that she disclaimed title in Steve Watson, under whom she acquired the possession, and that she claimed actual possession thereof hostile to that title and to the heir, of which he had notice; * *

Let it be remembered that the Locke heirs had no right of action for possession of the premises in controversy until a termination of the homestead estate held by Pearl Protheroe. Davis v. Neal, 100 Ark. 399, 140 S. W. 278.

In view of the italicized language in the preceding paragraph, there was no.reason for appellees to assert a claim, and they are not affected by the doctrine of laches. Mr. Protheroe lived on the premises four years, following his wife’s death. The fact that no suit was instituted during that period does not call for an application of the doctrine. In Walker v. Ellis, 212 Ark. 498, 207 S. W. 2d 39 (1948), this Court said:

“Where there is no intervening equity which of itself requires application of doctrine of laches, a court of equity ordinarily will not divest the owner of his title to land for laches unless he fails to assert such title for a period at least equal to that fixed by the statute of limitations. ’ ’

Here, Protheroe suffered no loss because suit was not instituted; to the contrary, he was privileged to .live on the property. Appellants received reimbursement for improvements made by him. In addition, Protheroe was a co-tenant, and in Inman v. Quirey (cited in the quotation from Ingram v. Seaman, supra), we held that the possession of one co-tenant is the possession of all, and laches cannot bar the right of entry to a co-tenant until the latter’s disseizin has been effected by some notorious act of ouster brought home to his knowledge.

No reversible error appearing, the decree is affirmed.

Johnson, J., dissents.

       These brothers had been non-residents of the state for a long number of years.

       Subsequent to the filing of the suit, appellants obtained conveyances from the heirs of Pearl Locke Protheroe.


author: J. Seaborn Holt, Associate Justice. Jim Johnson, Associate Justice,

text:
    Ft. Smith Couch and Bedding Co. v. Jones.
    5-2057
    332 S. W. 2d 817
    Opinion delivered March 7, 1960.
    [Rehearing denied April 4, 1960]

      Shaw, Jones & Shaw, for appellant.

      David T. Westmoreland, Warren O. Kimbrough, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a Workmen’s Compensation case. Appellee, Mrs. William Adolph Jones, sought compensation for an alleged accidental injury to her husband on November 19, 1957, which she claimed occurred in Colorado Springs, Colorado, while he was in the employment of appellant, Fort Smith Couch and Bedding Company, and handling and unloading furniture for appellant. She further alleged that while so performing his work he “bumped his side or stomach,” causing an aggravation to a pre-existingdisease, a gangrenous appendix, which caused said appendix to rupture and later resulted in his death. Appellants denied that any accidental injury arose out of the course of Jones’ employment and denied that his death came from any cause relating to his employment. A hearing before the referee of the Workmen’s Compensation Commission resulted in a finding in favor of appellant, employer, and a denial of appellee’s claim. Upon a review of her claim before the full Commission, the findings of the referee were affirmed and compensation.'denied appellee. On appeal to the Sebastian County Circuit Court, Fort Smith District, the findings of the Commission were reversed and judgment was entered directing the Commission to allow appellee’s claim for compensation.

For reversal, appellant stoutly insists that the lower court erred in overruling the decision of the Commission. "We have concluded that appellant’s contention must be sustained.

In these compensation cases, we have consistently held that when we find any substantial evidence to support the Commission’s findings we must affirm those findings. We said in Springdale Monument Company v. Allen, 216 Ark. 426, 226 S. W. 2d 42: “The rule is firmly established that the findings of the Commission, which is the trier of facts, will not be disturbed on appeal to the Circuit Court if supported by substantial testimony. Act 319 of 1939, § 25b; (Citing many cases) ... In a long line of decisions since the passage of the act here in question, the rule has been clearly established that the finding of the Commission shall have the same binding force and effect as the verdict of a jury, or of a circuit court sitting as a jury, and when supported by substantial evidence, such findings will not be disturbed by the circuit court on appeal to that court or on appeal to this court. . . . The Commission had the right, just as a jury would have had, to believe or disbelieve the testimony of any witness”; and quite recently, on October 5, 1959, in White v. First Electric Cooperative Corporation, 230 Ark. 925, 327 S. W. 2d 720, we said: “Under our long established rule, if we find any substantial evidence in the record to support the findings and order of the Commission and the judgment of the trial court, we must affirm. Under our Workmen’s Compensation Law the Commission acts as a trier of the facts — i.e., a jury — in drawr ing the inferences and reaching the conclusions from the facts. We have repeatedly held that the finding of the Commission is entitled to the same force and effect as a jury verdict”, and again on November 9, 1959, we said: “But there is even a stronger rule, namely, our oft repeated holding that if there is any substantial evidence to support the findings of the Commission, we will not disturb such findings. This is the strongest rule in Compensation cases, and the one carrying the greatest weight.” Reynolds Metal Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489.

The facts here disclose that deceased, employee Jones, was employed by appellant as a cross-country driver — helper — on a furniture delivery van. He left Fort Smith with a companion driver on November 17, 1957, in a “sleeper van”, with a trailer loaded with furniture for delivery at various points west. Their first stop was at Rocky Ford, Colorado, where a part of their load was delivered at one stop; then on the 18th they made deliveries at three or four stops in Pueblo, then on to Colorado Springs where they spent the night and unloaded furniture there the next morning. During the night in Colorado Springs, Jones seemed restless and complained about a stomachache. They then went to Denver and after unloading, proceeded to Warner, Oklahoma where they met another company truck which had broken down and they took its trailer for delivery to Perryton, Texas, returning to Fort Smith on the 23rd. It appears that Jones complained intermittently of a stomachache but nothing to show any serious or disabling condition until the 21st. Ed Huggins, the other driver, testified, in effect, that Jones did his work with very little complaint through the 20th and “that Jones made no complaint to him that he had strained or hit himself and never told him about hitting his stomach.” -Their work consisted of taking-shifts with each other in driving- and assisting each other in unloading the furniture at the various stops. The furniture consisted of divans, couches, and chairs, the heaviest weighing not more than 120 pounds, and they would never lift more than 50 or 60 pounds apiece, Jones taking one end and he the other. Jones, according to Huggins testimony, did not work from the 21st until the 23rd when they returned- to Fort Smith, Arkansas. When they reached Fort Smith on the afternoon of Saturday, the 23rd, Jones was in such pain that Dr. Hawkins, a local surgeon, was called. He diagnosed appendicitis and operated, finding that the lower two-thirds of the appendix was gangrenous with a hole in it about one-half inch in diameter, and walled off a localized abscess. Following the operation, on November 28th, Jones died. The causes of death were given as pneumonia, wound evisceration, ruptured appendix and obesity. It was Dr. Hawkins firm opinion that the rupture of the appendix occurred sometime within the twenty-four hour period just before he operated. He testified: “. . . From the findings of the localized peritonitis and the amount that he had, it was assumed and I think corréctly so, that the perforation of rupture had occurred within a twenty-four hour period.” Dr. Olson, in effect, corroborated Dr. Hawkins, testimony. He testified: “Q. In other words, Doctor, in the instance described it is your opinion that the perforation or rupture occurred within a twenty-four hour period prior to the operation or prior to the examination by the physician the first time? A. Yes.” Thus it appears from substantial evidence that the perforation or rupture of the gangrenous appendix must have occurred from the inroads of disease and natural causes. It occurred at a time during the twenty-four hour period when Jones was performing no work for appellant whatever.

We conclude, therefore, that there was ample substantial evidence to support the Commission’s finding that appellee failed to show that Jones had sustained any accidental injury arising out of and in the course of his employment. The judgment is -reversed and the findings of the Commission affirmed.

Reversed.

Johnson, J., dissents.

Jim Johnson, Associate Justice,

dissenting. As I understand the Workmen’s Compensation Law, it was passed as a social measure providing that any workman, except in some enumerated circumstances, who suffers an accidental injury during the course of his employment shall receive compensation therefor. This law was supposed to have removed the necessity of proving that the injury was caused by some act or omission constituting negligence on the part of the employer.

As is true in most social legislation, certain of the employee’s rights were taken from him when he was given the right to collect for his injuries without proving negligence. The most notable of these rights relinquished was the right to sue an employer in a court of law for damages suffered by an injured employee. Another right relinquished was the right of the employee to have his case tried before a jury of- his peers and of course the greatest right relinquished was the right to sue for an unlimited sum commensurate with the injury. The Act limits the liability of the employer. In order to justify in some measure the rights taken away from the employee, the courts from the beginning have adopted the rule that the Act will be broadly and liberally construed in the light most favorable to the claimant and that doubtful cases should be resolved in favor of the claimant. Boyd Excelsior Fuel Co. v. Mckown, 226 Ark. 174, 288 S. W. 2d 614; Arkansas National Bank of Hot Springs, v. Colbert, 209 Ark. 1070, 193 S. W. 2d 806; Elm Springs Canning Co. v. Sullins, 207 Ark. 257, 180 S. W. 2d 113; Williams Mfg. Co. v. Walker, 206 Ark. 392, 175 S. W. 2d 380; Peerless Coal Co. v. Jones, 219 Ark. 181, 240 S. W. 2d 647. This, in my opinion, not only is, but by all rules of fairness and justice, should be the strongest rule in compensation cases. By the very nature of the law itself this rule deserves to carry the greatest weight of any rule in compensation cases.

The majority opinion restates the language used by this Court in Reynolds Metal Co. v. Robbins, 231 Ark. 158, 328 S. W. 2d 489, as follows: “But there is even a stronger rule, namely, our oft repeated holding that if there is any substantial evidence to support the findings of the Commission, we will not disturb such findings. This is the strongest rule in compensation cases and the one carrying the greatest weight.” I was a member of this Court on November 9, 1959, when the Reynolds Metal Company opinion, supra, was handed down. I agreed wholeheartedly with the results reached in that case. Belatedly, let me confess that I completely overlooked the attempt in that opinion to strenghen the “substantial evidence” rule. It was never my intention then nor is it my intention now to ever become a party to the making of such a rule. If this strengthened rule is allowed to stand, the right to appeal in compensation cases might just as well be abolished. I can think of only one step further in that direction that this Court can be asked to take and that is to contend that if a claim is controverted the mere denial of the claim would amount to such substantial evidence as to justify this Court in affirming the Commission. I cannot escape the feeling that there is something wrong with a rule of this Court that gives a politically appointed Commission’s findings so much greater weight than the findings of our learned Chancellors, equal weight with the circuit court and in the case at bar even greater weight than the verdict of a jury. I have been unable to find in the Workmen’s Compensation Law a single sentence relative to the construction of the law by this Court. I do find in Section 81-1325 (B) the rules set out by which the Circuit Courts must abide. The pertinent parts of that section are as follows:

“The Court shall review only questions of law and may modify, reverse, remand for rehearing, or set aside the order or award, upon any of the following grounds, and no other:
“1. That the Commission acted without or in excess of its powers.
“2. That the order or award was procured by fraud.
“3. That the facts found by the Commission do not support the order or award.
“4. That there was not sufficient competent evidence in the record to warrant the making of the order or award.”

With the authority thus given The Honorable Circuit Judge in the case at bar after a careful review of the record reversed the Commission. Certainly, he was not only justified but duty bound to reach the conclu-’ sion which resulted in his order as follows:

“I overruled the Commission in this case for the following reasons:
It was the claimant’s position that exertions of the deceased contributed to the rupture of his appendix and both the claimant’s doctor and respondent’s doctor agreed that exertion could contribute to cause a rupture. In line with this, our Supreme Court has recognized that the rupture of an appendix may constitute a compensable injury. (Bryant Stave & Heading Co. v. White, 227 Ark. 147 at page 152.) In its opinion the commission disposed of claimant’s contention that exertion was the cause of the rupture by stating that ‘We fail to find any testimony that would, indicate that decedent was palled upon to exert any unusual strain.’ (Underscoring supplied.) The view that unusual exertion is required is not the law. (Bryant Stave & Heading Co. v. White, supra.) And the statement in the opinion of the commission that they searched the record to find testimony that would indicate an unusual strain evidences that they placed upon the claimant an undue burden in this regard and that their opinion should therefore be set aside.
“Furthermore, the commission seemed to place the burden on claimant of proving that the rupture was due to lifting not less than a certain number of pounds and of establishing with precision the hour of this event both with relation to the time of the rupture and the time the deceased left his job to' go home. It is my understanding that the law does not require the claimant to establish his case with mathematical certainty. (Herron Lumber Company v. Neal, 205 Ark. 1093, and Williams v. Gifford-Hill & Co., Inc., 227 Ark. 340). Nor does he have to collapse on the jojb before being entitled to benefits. (Gunn Distributing Co. v. Talbert, the Law Reporter, 230 Ark. 442, 323 S. W. 2d 435).”

It is not necessary to review this case in the light most favorable to the claimant in order to reach the conclusion that the commission was justifiably reversed by the Circuit Court. I have not only been unable to find any substantial evidence to support the commission’s findings, I have been unable to find a scintilla of competent evidence to sustain the findings. It is undisputed that the deceased employee Jones left Ft. Smith with a companion driver on November 17, 1957, in a “sleeper van” trailer truck loaded with heavy furniture, that they were on company business and subject to call to duty constantly from the time they left Ft. Smith until they returned on November 23, 1957. That they spent most of this entire seven days in the truck either driving, riding or sleeping in the cab bunk. It is true that Ed Huggins, the companion of the deceased on this fateful trip, testified that the deceased was in such bad shape from his injury that he did no work from November 21st until they returned to Fort Smith on the 23rd. However, the “Log” kept by Huggins and turned in to the company reflected that on November 21, 1957, deceased was off duty only 3% hours out of 24 hours and drove 10% hours that day. On November 22, 1957, the “Log” reflected that deceased was off duty only 4% hours and on November 23rd, the day they returned to Fort Smith, deceased drove 1% hours and was on duty another % hour. These reports made by Huggins, therefore, appeared to neutralize Huggins ’ oral testimony. See: Bradham Drilling Company v. Powell, 231 Ark. 555, 331 S. W. 2d 35. Even if Huggins’ oral testimony could be accepted as true, can it be said that a man riding in the cab bunk of a jarring truck owned by his employer subject to call to duty while on a mission in the course of his employment and suffers a ruptured appendix, is not entitled to compensation. The majority opinion says yes. To the contrary, see.: Ark. Power & Light Co. v. Cox, 229 Ark. 20, 313 S. W. 2d 91. Also see: Larson’s'Workmen’s Compensation Law, Sections 12.20.and 38.20.

Dr. Hawkins testified that the deceased’s case history revealed that on the morning of November 23rd the deceased’s right side hurt to walk and it hurt to ride. The Company’s records reflect that the big truck on which deceased was working left Ponca City, Oklahoma at 9:00 a.m. and didn’t arrive in Fort Smith until 4:30 p.m. The testimony is undisputed that deceased was in great pain when he arrived at Fort Smith; he was operated on and died. On the day deceased was operated on he was on the job in or about his employers’ truck subject to duty some 7% hours and according to the company’s own “Log” he performed his usual duties that day. It is undisputed that deceased’s regular work included some heavy lifting. The employers’ doctor agreed with deceased’s doctor that “no one can refute that heavy lifting would increase the intra-abdominal pressure and, if gangrenous appendix was present and about ready to rupture, that such lifting* would certainly, in all probability, aid in rupture of that organ.” There was absolutely no testimony that riding in a large jarring truck, driving, shifting, breaking and double-clutching such truck, in addition to the lifting required to unload such truck, would not hasten the rupture of this admittedly gangrenous appendix. Certainly common sense dictates that it would. For a case almost on all fours with the case at bar, see: Clark v. Ottenheimer Brothers, 229 Ark. 383, 314 S. W. 2d 497. This case contains a masterful discussion of the law applicable to cases such as this. Following the law as set out in the Clark case, supra, is is impossible for me to see how it can be said that the circuit judge erred in reversing the commission. I cannot agree with the theory that our circuit judges are to be treated as mere rubber stamps in compensation cases. To completely ignore their conscientious efforts to correct wrongs of the commission is to ignore the clear language of the law itself. In the present case the Commission clearly erred as a matter of law by demanding of the claimant a greater burden than our law requires. Surely it cannot be said that the “substantial evidence” rule is now so strong as to erase errors of law.

For the reasons stated above, I respectfully dissent.


author: Sam Robinson, Associate Justice,

text:
    Watt v. Bryan.
    5-2091
    332 S. W. 2d 609
    Opinion delivered March 7, 1960.

      Sivitser & Switzer, for appellant.

      Joe P. Melton, Chas. A. Walls, Jr., for appellee.
   Sam Robinson, Associate Justice,

The issue here is whether the Probate Court of Lonoke County, or the Probate Court of Ashley County, has the jurisdiction to determine the domicile of Larry, Donna Gail, and David Richard Watt, minors. Both parents of the minors are deceased; appellants, R. M. and Maud Watt, the paternal grandparents, live in Ashley County; and Maude Bryan, the maternal grandmother, lives in Lonoke County. On July 24, 1959 thé paternal grandparents filed a petition in the Ashley Probate Court, asking that they be appointed guardians of the minors. On August 29, 1959 the maternal grandmother, Mrs. Bryan, filed in the Lonoke Probate Court a petition asking that she be appointed guardian of the children. The Watts filed in the Lonoke Probate Court a response, in which they allege that they were appointed guardians of the minors by the Ashley Probate Court on September 5, 1959. On September 25, 1959 the Lonoke Probate Court made a finding to the effect that the domicile of the minors is in Lonoke County.

The procedure for the appointment of a guardian in a case of this kind is regulated by statute. Ark. Stats. § 57-606 provides:

“The venue for the appointment of a guardian shall be:
(1) In the county of this state which is the domicile of the incompetent; or
(2) If the incompetent is not domiciled in this state but resides in this state, then the county of his residence; or
(3) If the incompetent is neither domiciled nor resides in this state, then in the county in this state in which his property, or the greater part thereof in value, is situated . . .
“If proceedings are commenced in more than one county, they shall be stayed except in the county where first commenced, until final determination of venue by the Probate Court of the county where first commenced. If the proper venue is finally determined to be in another county, the court shall transmit the original file to the proper county. The proceeding shall be deemed commenced by the filing of a petition; and the proceeding first legally commenced to appoint a guardian of the estate, or of the person and the estate, shall extend to all of the property of the incompetent in this state
J >

The Statute provides that “the proceeding shall be deemed commenced by the filing of a petition”. Here, the proceedings were commenced first in Ashley County by the filing of a petition in the Probate Court of that County on July 24, 1959. Hence, the proceedings should be stayed in Lonoke County until final determination of venue by the Probate Court of Ashley County. Prom the response filed in the Lonoke Probate Court by appellants, it appears that the Ashley Probate Court has already appointed them guardians, but that order may be vulnerable to attack by appellee herein.

Reversed.


text:
    Skelton Motor Co., Inc. v. Brown.
    5-2043
    332 S. W. 2d 607
    Opinion delivered March 7, 1960.

      John H. Joyce, E. J. Ball, Charles Bass Trumbo, for appellant.

      Dickson, Putman S Millwee, for appellee.
   George Rose Smith, J.

This' is an action by the appellant upon an installment note executed by the appellees in payment for motor vehicle equipment. The defendants demurred fo the complaint on the ground that the note appears on its face to be usurious. The trial court sustained the demurrer and dismissed the complaint.

It is conceded that the appellees’ original principal debt was $3,000.00. . To evidence this obligation the seller prepared a note for $3,322.08, dated February 23, 1957, .payable in monthly installments of $138.42 beginning on April 1, 1957, and reciting that the interest was prepaid until maturity. The court’s finding of usury was based upon, a statement by counsel that the matter had been submitted to an accounting firm “to determine whether or not $322.08 exceeded interest on $3,000.00 at the rate of 10 per cent per annum for a period of 24 months, interest and principal to be repaid in 24 equal installments of $138.42 each. ’ ’ The accountants reported that the charge exceeded 10 per cent per annum, though their computations are not in the record.

It is readily demonstrable that the accountants’ conclusion was incorrect, for the note is not usurious. A standard work on interest tables states that at 10 per cent interest vthe monthly installments upon .a loan of $3,000.00, payable in 24 months, should be $138.43. Lake’s Monthly Installment and Interest Tables (5th Ed.), p. 145. Here the amount of each payment was a cent less than the permissible maximum.

Furthermore, the fact that the first installment upon the note in controversy was not due until 37 days after the date of the note increases the margin by which the interest falls below the legal limit. If this installment note had been for $3,000.00, with interest at 10 per cent per annum, the payments called for would have been applied as follows:

It will be observed that an interest charge of $329.50 might have been made; hence the actual exaction- of $322.08 was not excessive.

Reversed, the demurrer to be overruled.

McFaddin, J., concurs.

Ed. F. McFaddin, Associate Justice,

(Concurring). I concur in the reversal of the judgment. It has always been my understanding that usury must be both pleaded and proved. Commercial Credit Co. v. Chandler, 218 Ark. 966, 239 S. W. 2d 1009; and Cox v. Darragh, 227 Ark. 399, 299 S. W. 2d 193. Usury is a question of fact; and, like limitations, cannot be claimed by demurrer unless the fact of usury clearly appears on the face of the complaint. 55 Am. Jur. 435, “Usury” § 162. In the case at bar, usury did not appear on the face of the complaint; and yet the defendant attempted to urge usury by demurrer. I think it was improper to sustain such demurrer. Court proceedings should not be “short-circuited”.

The majority opinion compounds the “short-circuiting” by finding, as a fact, that there was no usury. The majority may be correct pn such fact question; but I never reach that issue because I think the demurrer should have been overruled and the defendant allowed to -plead further.


text:
    Anderson v. Creswell-Keith, Inc.
    5-2049
    332 S. W. 2d 610
    Opinion delivered March 7, 1960.

      Shackleford and Shackleford, for appellant.

      Spencer <& Spencer, for appellee.
   Jim Johnson, Associate Justice.

This case involves an oil property transaction. It is primarily a suit in equity to recover $4,000 under the terms of a written instrument.

On November 27, 1956, appellant, W. S. Anderson, and appellee, Creswell-Keith, Inc., entered into the following agreement:

“AGREEMENT BETWEEN CRESWELLKEITH MINING TRUST and Mr. W. S. Anderson on his purchase of an undivided one-eighth (1/8) interest in the Moody Estate No. 1, we will hold his check in the amount of $4,000.00 in Creswell-Keith, Inc., office until Moody No. 1 is fractured and producing oil into tank, at such time Mr. Anderson will say if he wants to keep his interest or sign back to Creswell-Keith.
“Mr. Anderson will also have option to participate, at same price, at any time we decide to drill Moody Estate No. 2.
“Witness onr hands this November 27, 1956.”

On the same date the assignment of an undivided one-eighth interest in the Moody No. 1 well and the lease on which it was located was executed, acknowledged and delivered to W. S. Anderson.

On December 3, 1956, the $4,000 check was cleared through the Commercial National Bank of Little Rock. The Moody No. 1 well, according to the undisputed evidence, was fractured and producing oil into the tanks on December 10, 1956.

On December 19, 1956, nine days after the well was fractured and producing into the tanks, the assignment which had been delivered to the appellant, W. S. Anderson, on the 27th day of November was filed for record in the office of the recorder for Union County, Arkansas.

On January 15, 1957, the appellant, W. S. Anderson, exercised his option to participate in the Moody No. 2 well to be drilled on the same lease, purchased a one-half interest and paid to Creswell-Keith, Inc., the sum of $18,000, which consisted of a check for $6,000; a promissory note from appellant to Creswell-Keith, Inc., for $2,000; and the assignment of a note of $10,000 held by the appellant.

The record reflects that appellant, W. S. Anderson, has never assigned back to Creswell-Keith, Inc., the one-eighth interest in the Moody No. 1 well, has never tendered such an assignment and did not offer to assign this interest back in his intervention filed to recover the money paid for this interest.

s Based on the agreement set forth above, the appellant, W. S. Anderson, filed his intervention in which he alleged that the Moody No. 1 well had never been fractured and produced oil into the tanks, and that he had demanded his money back.

His testimony at the trial was to the effect that on January 15, 1957, 26 days after the time when ho had the option to assign back his interest, and 17 days after his assignment had been recorded, he demanded his money back.

On January 18, 1958, appellant filed his intervention for the $4,000 in other litigation not pertinent to the issues herein. A general denial was filed by appellee. Meanwhile, appellee filed a separate proceeding to recover for operating expenses on' the Moody No. 1 and other wells not involved herein. These causes were consolidated for trial on November 7, 1958. The court took the matter under advisement and on March 19, 1959, entered its order and finding that appellant was the owner of a 1/8 interest in the Moody No. 1, that he was liable for. operating expenses thereon to appellee, and dismissed appellant’s intervention for want of equity. From that decree comes this appeal.

For reversal appellant relies on the ■ following points:

1. Findings of Chancellor that appellant is owner of undivided 1/8 interest in Moody No. 1 is against preponderance of the evidence.

A. Undisputed evidence reflécts appellee breached agreement when check was deposited.

B. Preponderance of evidence reflects appellant exercised option.

2. In the álternative, appellee did not prove certain items charged-to be operating expenses and judgment of $400.69 is error.

In considering the first point urged for reversal we must agree with appellant that the cashing of the $4,000 check by appellee prior to the time the Moody No. 1 oil well was ‘fractured and producing oil into tank’ was a variance from the written agreement entered into by the parties on November 27, 1956. There can be no doubt but that if appellant had exercised his option to reassign the lease to appellee at the proper time, he would be entitled to have the cheek returned, or a refund of the money since the check had been cashed. Looking at this instrument in its entirety and viewing the record for testimony relative to the intention of the parties, we find the following testimony of Mr. Neville Keith concerning the January 15, 1957, meeting:

“Q. At that time did he make any demand for return of his money from Moody No, 1?
“A. No, sir, he sure didn’t.
“Q. What did he do at that time?
“A. He wanted to' participate with us in the drilling of the Moody No. 2 which we were preparing to drill. He stated he wanted a bigger interest because he thought it should be a bigger well than Moody No. 1.
“Q. How much interest did he have in the No. 1?
“A. An eighth.
“Q. How much did he want in Moody No. 2?
“A. He wanted a half interest.”

This testimony of Neville Keith is completely consistent with the deal that was made on the 15th of January 1957.

At that time the appellant admits he purchased a one-half interest in the Moody No. 2 well, which was to be drilled on the same lease by the same operator, Creswell-Keith, for the sum of $18,000.

To pay this $18,000 he gave his personal check for $6,000; his personal promissory note for $2,000; and assigned to Creswell-Keith another note for $10,-000. From this series of events we cannot escape the conclusion that appellant would not have done this had he been there demanding- the return of his $4,000. At the very least he would have deducted the $4,000 from the cost of the new venture.

Appellant testified under examination by his own attorney:

“Q. Mr. Anderson, are you the owner of a 1/8 interest in Moody No. 1¶
“A. I am.”

From what we have said above and other matters contained in the record we cannot say that the decree of the Chancellor on the first point urged by appellant was against the weight of the. evidence. See: Zachery v. Warmack, 213 Ark. 808, 212 S. W. 2d 706; and High v. Bailey, 203 Ark. 461, 157 S. W. 2d 203.

The second point urged for reversal presents an entirely different question. Since it is established that appellant is the owner of a 1/8 interest in Moody No. 1 well it must follow that the terms of the assignment instrument by which title to this interest was obtained controls.'

The assignment contained the following clause:

“That if the said well proves to be a producer of oil or gas, same shall be operated by assignors for the benefit of themselves and assignees, and in such event, assignee agrees after completion and equipping by assignors as hereinabove stated, that he will reimburse assignee for the 1/8 interest . '. .”

Following the clear terms of this assignment on trial de novo, without setting out in detail the testimony relative to all the expenses incurred in the operation of the well, we conclude that the judgment of the trial court for operating expenses in the amount of $400.69 should be reduced to the extent hereinafter indicated:

SWITCHER SERVICE

Testimony on July 15, 1959, taken by agreement of the parties, reflects that switcher service for the Moody No. 1 was charged at the rate of $75 per month between January 1957, and September 1957. Yet, thereafter, only $50 per month was charged. The testimony revealed that $50 was the standard price for switcher service. However, appellee attempted to reconcile this difference on the basis that the $75 per month included and was to cover administrative costs. We noted that on the statement of the period January 1957, to September 1957, the line following “Switcher Service” is “Administrative costs” at $15 per month. We find that the switcher service costs is excessive for this period and the item of Switcher Service should be reduced from $525 to $350, making total due on this statement of $163.32.

ELECTRICAL MOTOR

The testimony of July 15, 1959, reflects that the appellee changed from a gas-driven motor to an electrical motor. It did so without consulting any of the interested parties, and particularly without mentioning this to appellant. Further, it was shown by the testimony that this was an extravagant effort on the part of appellee, wholly without economic outlook, particularly when it was known the well would not produce. Figuring the costs of setting up the electric motor as reflected on Plaintiff’s Exhibit D, there was a charge of $472.35, composed of the following: Industrial Elec. Co., $343.71 and $90; Williamson Tool & Die Co., $29.06; and Arkansas Power & Light Company, $9.58. This statement should be reduced by $59.04, or a charge of $43.06.

COSTS OF LITIGATION IN HARRIS MATTER

This litigation involved an expense of $800 and was charged as an operating expense of the Moody No. 1. Even the appellee admits that this is not an operating expense of the well.

“Q. Is that an expense for operating the well itself?
“A. No, I wouldn’t think so.”

Further testimony was to the effect that the damage done, if any, to the Harris property was even before the well Avas drilled and while moving the rig in. We find that the statement Avith these charges is excessive by $100 and that expense should be eliminated.

As a result of the excessive charges hereinabove set out, the judgment for operating costs is reduced to $219.77.

From what we have said above, the decree of the Chancellor is modified only to the extent indicated and affirmed, and the cause is remanded with directions to enter an order consistent with this opinion.

Modified and affirmed.


author: ■ j. Seaborn Holt, Associate Justice. George Rose Smith, J.,

text:
    Poole v. James.
    5-2087
    333 S. W. 2d 833
    Opinion delivered March 14, 1960.
    [Rehearing denied April 4, 1960]

      Bon McGour-tney d Associates, for appellant.

      Frierson, Walker d Snellgrove, for appellee.
   ■ j. Seaborn Holt, Associate Justice.

This appeal arises out of a traffic accident under. our commonly called “Guest Statute,” 75-913 —15 Ark. Stats., and comes from a judgment entered on a verdict by the trial court, at the close of all the testimony, in favor of Orville James, appellee. . ,

At about 12:15 A.M. on the morning of March 1, 1959, appellee, James, while intoxicated, was driving his automobile west along Highway 140 in Mississippi County, Arkansas. Thelma Boat was in the front seat with James and appellant, Lorraine Poolé, and K. O. Smith were in the back seat. It appears undisputed that appellant, Thelma Boat and Smith were all guests of James and that all had, since about 9 P.M., beeii visiting a round of taverns drinking beer, dancing, and having a “good time”. The evidence shows that two officers, Sharpe and Amos, had stopped another automobile to check its occupants a short distance west of W.est Ridge on said highway and parked their car on the highway shoulder. When appellee, James, reached this point, he brought his car to a stop behind officer Sharpe’s car and in the right traffic lane of the highway, without leaving 20 feet [75-647 Ark. Stats.] of the paved part unobstructed. .Appellee had his headlights on. Officer Araos took James from his car, asked him to walk a straight line, then put him (James) in Sharpe’s car. Later, Shar.pe put K. O. Smith in his car also. After James’ car had been stopped on the highway as indicated, for about two and one-half minutes, a car driven by Troy Kennedy, who was also intoxicated, collided with the rear of James’ car, injuring appellant, Lorraine Poole, who had remained in the car.

Our Guest Statute provides: “No person transported as a guest in any automotive vehicle upon the public highways or in aircraft being flown in the air, or while upon the ground, shall have a cause of action against the owner or operator of such vehicle, or aircraft, for damage on account of any injury, death or loss occasioned by the operation of such automotive vehicle or aircraft unless such vehicle, or aircraft was wilfully and wantonly operated in disregard of the rights of the others.” Ark. Stats. 75-913. Therefore, before appellant, Lorraine Poole, could recover, the burden was on her to prove that her injuries were caused by James operating his automobile in a willful and wanton manner in disregard of appellant’s rights, and this we hold she has failed to do. “* * * Willful misconduct, or to operate an automobile in willful and wanton disregard of the rights of others, means something more than gross negligence”, and “* * * willful negligence is greater in degree than gross negligence; to be wilfully negligent one must be conscious of his conduct — that is, he must, in the light of surrounding circumstances, comprehend that his act will naturally or probably result in injury. Differently expressed, willful negligence ‘involves the element of conduct equivalent to a so-called constructive intent ’. ’ ’ Steward, Administrator v. Thomas, 222 Ark. 849, 262 S. W. 2d 901.

Appellant, Lorraine Poole, testified, in effect, that she was not intoxicated at any time while in James ’ ear: “Q. * * * I believe you said you found nothing at all wrong in the operation of Orville’s car and he parked his car in the same manner you would have? A. Yes.” Thelma Boat testified that she and Lorraine Poole drank some whiskey before they met up with appellee, James, and K. O. Smith; that they all, including appellant, drank beer at the Three-Way Inn and that each one had several drinks of beer. Appellee, James, testified: “Q. When you Avould drink one, Lorraine would drink one, Thelma would drink one and K. O. drink one? A. Yes. Q. And then order another round? A. Another round. Q. You kept that up until about 12:15? A. Yes. Q. Were you feeling pretty good when you left? A. Yes, all right. Q. Everybody else was feeling pretty good when you left? A. That’s right. Q. You all had that in mind, having a good time, when you left for Three-Way Inn? A. That’s right.”

Here the preponderance of the evidence, as indicated, shows that appellee, James, was drunk when he stopped his car on the highway. In Sparks v. Chitwood Motor Company, 192 Ark. 743, 94 S. W. 2d 359, in somewhat similar circumstances in which the court directed a verdict at the close of the testimony, we said: “* * * when a crowd of people go out together and all of them participate in drinking whiskey, and each one acquiesces in what the others are doing, all of them are guilty of negligence, and neither of them can recover against the other.”

The degree of care required not only of the driver of the car, but also the occupants, is such care as a prudent person would exercise under the circumstances. Blashfield Cyclopedia of Automobile Law, § 631. * * ’* “The driver of the automobile was under no greater obligation to exercise care than the appellant was. Every one is under the duty to exercise ordinary care for his own safety,” and in Lewis v. Chitwood Motor Company, 196 Ark. 86, 115 S. W. 2d 1072, we held: “A guest who is injured while riding with an intoxicated driver is precluded from recovery because of driver’s intoxication when it is established that the driver was intoxicated or under the influence of liquor to such an extent as to make him a careless or incompetent driver, that the guest knew or should have known that the driver was under the influence of liquor, but nevertheless rode with him, and that the intoxicated condition of the driver caused or at least contributed to the injury.”

Appellant testified and admitted that after appellee, James, had parked his car in a negligent manner, or in a dangerous position on the highway in question, and had gone with the officer, she, nevertheless, remained in the car for at least two and one-half minutes without attempting to remove herself from it before it was struck by Kennedy’s car. In the circumstances, we hold that it was her duty, as appellee’s guest, in the exercise of ordinary care for her own safety to have left the car during this two and one-half minute interval. We said in Beason v. Withington, 189 Ark. 211, 71 S. W. 2d 461, ‘ ‘ * * * The circumstances may. be such as to charge the occupant with negligence as a matter of law, where he unreasonably remains in the machine after adequate opportunity is offered for alighting, or, at least, where he fails to insist on leaving the car. But this duty is not absolute, the question- whether a failure to leave the vehicle is a want of ordinary care being dependent on the circumstances of the particular case.”- In Blashfield Cyclopedia of Automobile Law and Practice, No. 4, Part 1, § 2415, we find this statement of the law: “Where the road becomes dangerous, or the speed of the machine in which a passenger or guest is riding becomes excessive or unlawful, or the driver is otherwise careless or reckless in his conduct, and this is or ought to be known to the passenger, he is under the duty, in the- exercise of ordinary care, to protect himself from injury, to caution the-driver of the danger, remonstrate against it, and, unless the dangerous character of the surrounding, conditions or the dangerous manner of operation is altered in such a way as to lessen the grave potentiality of harm, to quit the car if that may be safely donej or to request the driver to stop the vehicle, and, when it has stopped, to get out of the car.”

In the present case, we hold that while the evidence might be sufficient to establish gross negligence on the part of James, it falls far short of being of that willful and wanton character, as above defined, to warrant a recovery against him by appellant undér our Guest Statute supra.

Affirmed.

McFaddin, George Bose Smith & Bobinson, JJ., concur.

George Rose Smith, J.,

concurring. I agree that the judgment should be affirmed, for want of any substantial evidence to show willful and wanton misconduct on the part of the appellee. He merely stopped his car on the traveled portion of the highway and left it there while obeying the instructions of the police. This conduct does not seem to me to involve anything more than simple negligence, and consequently the court properly directed a verdict for the defendant.

The majority opinion, however, does not stop at this point. It goes on to charge the appellant with an insurmountable degree of contributory negligence, for the reason that she rode with an intoxicated driver and failed to leave the car promptly when it was stopped on the highway. Both these points involve issues of fact upon which the evidence is in conflict. Since it is our duty, in reviewing a directed verdict, to consider the proof in the light most favorable to the appellant, I am unwilling even to intimate that these two considerations tend to support the action of the trial court; for upon those questions I think it would have been proper to submit the case to the jury, if any willful and wanton misconduct had been shown.

McFaddin and Bobinson, JJ., join in this opinion.