author: Carleton Harris, Chief Justice.

text:
    Litman C. VICK v. Henry M. BERG
    5-5670
    473 S.W. 2d 858
    Opinion delivered December 13, 1971

      Wilton E. Steed, for appellant.

      Gaughan, Laney, Barnes &r Roberts, for appellees.
   Carleton Harris, Chief Justice.

Litman C. Vick, appellant herein, contends that he is the owner, by virtue of adverse possession, of certain lands in Ouachita County, Arkansas. Appellees, Henry M. Berg and wife, and Henry M. Berg as agent and attorney in fact for Gette Berg Jordan and Leah Berg Shyer, assert that they are the owners of the lands in question. On June 25, 1969, Vick filed a petition in the Ouachita Chancery Court alleging that he was the owner and in possession of the 58 acres of land, here under discussion; that he had acquired title by taking possession more than thirty years ago; that he has had color of title; that the lands had been under fence for at least thirty years, and he asked that title to the lands be quieted and confirmed in him. Statutory notice was given of the petition and appellees filed an answer asserting that they were the owners, and in possession of the premises. On trial, the court found that appellees were the record owners of the lands, and had paid taxes on said lands continuously since the early 1900’s; that Vick had never paid taxes and did not have color of title to any portion of the lands. It was further found that, with the exception of a quarter of an acre upon which Vick had built a home, that he had not had actual or pedal possession of the lands continuously for the statutory period. Title to all lands was quieted in appellees except the quarter of an acre, which is particularly described in the decree, and this was quieted in appellant. From the decree so entered, Vick brings this appeal. For reversal, two points are asserted, viz, that the court erred in finding that appellees were record owners of the land, and mainly that the court erred in finding that appellant did not have actual or pedal possession of all the lands in question continuously for the full statutory period. We proceed to a discussion of these issues.

As to the first point, we quickly find no merit. Apparently, though it is not entirely clear, counsel for appellees endeavored to establish the chain of title by simply making reference to the deed records. This, of course, was improper, but there was no objection from appellant nor any demand for the introduction of certified copies, or the instruments themselves. We have said that where there are no objections, the point is considered waived when the case reaches the Supreme Court. Allen v. Ozark Land Company, 55 Ark. 549, 18 S. W. 1042. Actually, it is likely that no objection was made because Vick really does not controvert the fact that appellees are the record owners of the lands. In addition, this suit was not instituted by appellees, but by appellant, and the burden is on him to establish his title, rather than rely on any weakness of the title of the Bergs. Rinke v. Shackleford, 248 Ark. 941, 455 S. W. 2d 83. Whether the decree properly quieted title in appellees as against the world is not a matter to concern Mr. Vick, since he is only interested in whether title was properly quieted as against him.

The property claimed by appellant was sometimes referred to in the trial of the case as three separate parcels, these parcels being identified with reference to three fences, and were termed the “outer tract”, the “inner tract”, and the “yard”. The “outer tract” was property inside the “outer fence” but outside the “inner fence”, and consisted of approximately 50.3 acres. The “inner tract” referred to land within the “inner fence” but outside the “yard fence” consisting of approximately 3.6 acres. The “yard” included the land inside the yard fence and the house occupied by appellant, and conn sisted of approximately M of an acre. The court ruled against Vick with respect to both the “outer” and “inner” tracts, but did quiet title to the “yard” in him, and this appeal relates only to the “outer” and “inner” tracts.

Vick stated that he moved to the property 33 years ago, built his house, and had lived there since that time. This was in conflict with a deposition earlier given when Vick said he lived away from the property for seven or eight years, but moved back about 1957; that he built the “yard fence” in 1953; according to the witness, a man named Daniels built the “inner fence” sometime after 1953. Appellant built the “outer fence” in 1961. In support of his claim, he mentioned that he had maintained camping facilities and a refreshment stand during the early years (this apparently being on the quarter acre where the house was located), had cut firewood and posts from timber on the entire tract, and had used the land for hunting and fishing.

In determining whether he has sufficiently supported his claim, we will briefly discuss these various facts. Let it be said at the outset that, though alleged, he had no color of title, and though having commenced living on the quarter acre some 33 years before the litigation, no claim to the land within the “outer” or “inner” fences was made prior to 1961. Using the lands for hunting and fishing really adds nothing to his claim for the evidence reveals that many other persons likewise used the lands, without objection from Berg, or without objection from appellant. In fact, the record reflects that numerous people, up and down the river built fishing or hunting shacks, the Bergs having no objection. George Bowers, an employee of the Bergs, testified that the land was used by appellees to grow timber, and that during his 52 years employment, timber had been sold twice from the tract, once in 1941, and once in 1966. He said that the policy of his employers had always been to let the people stay in the little houses on the river, more or less as a matter of good will. As far as the cutting of posts and firewood over the area, this is insufficient to constitute notice of a claim of ownership. Sanderson v. Thomas, 192 Ark. 302, 90 S. W. 2d 965.

Frank Landers, engaged in the timber business, testified that he bought timber from Berg in the spring of 1966, such timber being located within both the “inner” and “outer” fences, and started cutting it in the fall. He said that he discussed the matter with Vick on the morning he started in on the cutting. According to the witness, Vick asked if Landers were there to cut the timber and the latter replied that he had a deed and was going to cut it all, as well as some timber on other lands that he had bought from other parties. “He said, ‘I wish you wouldn’t cut this first.’ I said, ‘Why, this is the Berg’s timber,’ and he said ‘yes’.” The timber was cut, and Vick neither demanded nor received any money. Several witnesses who frequently had contact with Vick testified that he had never made any sort of claim to the land and Vick himself only mentioned one person that he said he had told of his claim.

Though Vick testified that he had built the “outer fence” in 1961, he did not appear to be at all positive about this fact. For instance, when asked about it during the taking of a deposition in January, 1970, he replied “Oh, it’s been several years ago that I put that fence up around it. * * * It’s been six or seven years ago.* * *” Subsequently, he reiterated a third time that the fence was put up “Six or seven years ago.” Of course, “six or seven years ago” would have only taken his claim back to 1963 or 1964, which would have been less than seven years before the commencement of the action. Other portions of his evidence are also rather in conflict with his claim of adverse possession. After he had taken the stand to testify in rebuttal, the record reveals the following on cross-examination:

“Q. Have you ever paid any taxes on this property?
A. No, I haven’t yet.
Q. Why haven’t you?
A. Well, it hadn’t belonged to me yet [Our emphasis].
Q. It doesn’t belong to you now, does it?
A. Well, I’m in care of it anyway [Our emphasis]. * * *
Q. How come you never did pay any taxes on this land?
A. Nobody never come down and I didn’t own it.
Q. And that’s why you didn’t pay taxes on it?
A. I didn’t own it at that time, no [Our emphasis].
Q. Do you own it now?
A. I figure I do.
Q. Have you paid any taxes on it?
A. No, but I am fixing to.”

In summary, while the record reflects that appellees had notice of Vick’s presence on the land, the record does not reflect that appellees had notice of his claim of ownership. In fact, it appears that Vick was under the impression that all he had to do was stay on the premises for more than seven years, and he would automatically come into ownership. This, of course, is not correct. To the contrary, he had to assert his claim of ownership against the world for more than seven years before that ownership would be established.

In Hill v. Surratt, 240 Ark. 122, 398 S. W. 2d 225, we pointed out that the quantum of proof necessary for a trespasser to establish title to a tract of land by adverse occupancy is greater where he has no color of title, and in such case he must show pedal or actual possession for the extent of the claimed boundaries for the required seven years, and in Lollar, et al v. Appleby, et al, 213 Ark. 424, 210 S. W. 2d 900, we likewise stated that where there is no color of title, the adverse possession is limited to the land actually occupied. It does appear that the quarter.of an acre-awarded Vick by the chancery court was actually occupied, but we agree with the chancellor that the proof relative to the rest of the land sought was entirely insufficient to establish the adverse claim.

Affirmed.

       Actually, it appears that the amount of land involved is something over 54 acres.

      Daniels, under a lease from Berg, constructed this fence for the purpose of holding cattle, and, according to the evidence, used it for approximately 10 years.

      There is a dispute in the evidence relative to when the fences were built, two witnesses testifying that the “outer fence” was not completed until 1968.

      From the record:
      “Q. When did you decide you were going to claim ownership of the land?
      A. Well, about the time I fenced it. I figured it wasn’t nobody coming, I was going to go ahead and fence it up. * * *

        Q. * * * When did you first decide you were going to claim that you owned this land?
      A. Well, 1 told you I put a fence on it when I figured it.
      Q. At the time you built the fence?
      A. Yes.”

      The northern boundary of the property was on the Ouachita River.

      Henry Simpson testified that he had a place about 2,000 feet up the river from Vick; that he knew Berg owned the property, and that he (Simpson) claimed no ownership interest, and that, as far as he knew the other fishing camps had the same status.


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Lon Earl MUNCRIEF, A Minor, by Mrs. George Young, His Mother and Next Friend v. William W. GREEN, Administrator of the Estate of John E. Stasick Deceased
    5-5665
    473 S.W. 2d 907
    Opinion delivered December 13, 1971

      Hobbs & Longinotti, for appellant.

      Cockrill, Laser, McGehee, Sharp ir Boswell, for appellee.
   George Rose Smith, Justice.

This is an action for personal injuries brought by the appellant, Lon Earl Muncrief, a minor. The defendant is the administrator of the estate of John E. Stasick, deceased. In the trial court the defendant successfully moved for a summary judgment, on the ground that a compromise judgment in prior litigation between the same parties was a bar to the maintenance of this action. The correctness of the summary judgment is the issue here.

On December 17, 1966, Lon Earl Muncrief and John E. Stasick, two 17-year-old minors, were involved in a one-car accident in which John was killed and Lon Earl was injured. After the accident Lon Earl .gave conflicting statements to his liability insurance company, first stating that he was the driver at the time of the accident and later stating that John was the driver.

The personal representatives of John’s estate brought an action for wrongful death against Lon Earl, whose mother was appointed as his guardian ad litem. The complaint charged that Lon Earl had been driving the car and had been willfully and wantonly negligent. The defense was handled by the liability insurance company, whose claims superintendent informed Lon Earl and his mother by letter that the case would be handled on the assumption that John had been driving (in which event there would presumably be no liability). The company, however, filed an answer containing only a general denial and pleas of contributory negligence and assumption of risk. There was no counterclaim nor any assertion that John was driving the car at the time of the accident.

The earlier case was compromised by the payment of $9,250 to the plaintiffs. On May 16, 1968, the probate court entered an order in the John E. Stasick administration proceedings, finding that the proposed settlement was to the best interest of the estate. On the same day the circuit court entered an order dismissing the wrongful dea.th action, with prejudice.

The appellee first contends that the appellant is pursuing the wrong remedy, in that he should have brought an action under the statute to vacate: the judgment after the expiration of the term. Ark. Stat. Ann. § 29-506 (Repl. 1962). We have held, however, that the statute does not apply to a void judgment. State v. West, 160 Ark. 413, 254 S. W. 828 (1923). That conclusion is in harmony with the general rule that a judgment void on the face of the record is open to direct or collateral attack. Woolfolk v. Davis, 225 Ark. 722, 285 S. W. 2d 321 (1955).

Whether the 1968 judgment was void must be determined on the basis of controlling precedents which provide the strictest protection for a minor in the compromise of litigation. The minor’s guardian can make no admission or concession to the minor’s prejudice. Since a compromise does involve a concession, it is the duty of the court to examine the merits of the case before approving such a settlement. Rankin v. Schofield, 71 Ark. 168, 70 S. W. 306, 100 Am. St. Rep. 59 (1902). In a later appeal in that case we said on rehearing that when the court makes no investigation to determine whether the compromise is a proper one, the judgment is void. Rankin v. Schofield, 81 Ark. 440, 98 S. W. 674 (1905). More recently we have said that such a judgment is void on its face and subject to collateral attack. Kuykendall v. Zachary, 179 Ark. 478, 16 S. W. 2d 590 (1929).

We turn, then, to the record in this case, bearing in mind that all doubts must be resolved in favor of the party resisting the summary judgment, here the appellant. Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89 (1963).

We first quote the 1968 circuit court judgment in its entirety:

On this day is presented, to the court the motion of plaintiffs to dismiss, their complaint against the defendant with prejudice, and from said motion and other matters and things before the court, this court doth find:
That the plaintiffs’ cause of action against the defendant has been compromised and settled in full and should be dismissed with prejudice.
It is, therefore, considered, ordered and adjudged that the plaintiffs’ complaint against the defendant be and the same is hereby dismissed with prejudice.

It will be noted that the judgment contains not one syllable to indicate affirmatively that the court considered the merits of the compromise settlement. The court’s sole finding of fact was that the plaintiffs’ cause of action had been compromised and settled. Thus the judgment appears on its face to be void, insofar as it represents a compromise of Lon Earl’s unasserted cause of action against the plaintiffs in that case.

The appellee argues, however, that since the judgment recites that the court considered the motion “and other matters and things,” we should assume, upon the authority of Swindle v. Rogers, 188 Ark. 503, 66 S. W. 2d 630 (1934), that the court went into the merits of the compromise and doubtless considered the findings made by the probate court on the same day. In the Swindle case the judgment recited that the court had heard the testimony of witnesses.

Construing the record strictly against the summary judgment, we cannot say that Lon Earl’s rights were properly protected in the earlier case. It must be remembered that the answer filed in Lon Earl’s behalf contained no intimation that John Stasick had been driving the car, nor was any counterclaim asserted. Both the petition filed in the probate court and that court’s order approving the compromise make reference only to the personal representatives’ cause of action against Lon Earl, for wrongful death. Evidently the personal representatives and the insurance company were all anxious for the probate court to approve the settlement. In the circumstances there is not the slightest reason to suppose that either the probate court or the circuit court had the remotest idea that a cause of action for personal injuries might exist in favor of Lon Earl. To the contrary, all inferences to be drawn from the record lead to the conclusion that Lon Earl’s possible cause of action was not considered by either court.

Alternatively, the appellee contends that the summary judgment should be upheld on the principle of judicial estoppel, by which a party may be prevented from taking inconsistent positions in successive cases with the same adversary. In support of this argument the appellee stresses the fact that Lon Earl’s mother appeared both as his guardian ad litem in the first case and as his next friend in this one.

Doubtless that contention would have much force if Lon Earl’s mother, an adult, sought to recover damages for herself personally in the case at bar. We fail to see, however, just how such an application of the doctrine of judicial estoppel, as applied to Lon Earl’s own cause of action, can be reconciled with our cases holding the earlier compromise judgment to be void. Obviously the same argument could have been made in the Rankin cases, the Kuykendall case, and our other cases to the same effect. To sustain such an argument we would in effect have to overrule those decisions protecting the rights of a minor in the compromise of litigation, for the guardian would then be able to bargain away the minor’s cause of action upon the theory of estoppel. Our established rule, however, is that the guardian can make no admission or concession to the detriment of the minor. Consequently we are unwilling to approve a theory that would nullify our controlling precedents of long standing.

Reversed.


text:
    Louise S. FERGUSON v. Fred W. FERGUSON
    5-5678
    473 S.W. 2d 869
    Opinion delivered December 13, 1971

      Paul F. Henson, for appellant.

      Tom Tatum, for appellee.
   George Rose Smith, Justice.

This is a divorce case in which the chancellor awarded the husband a divorce on the ground of personal indignities, settled the matter of child custody and support, and awarded the wife $2,000 as “temporary alimony.” Both parties have appealed.

On direct appeal Mrs. Ferguson contends that the appellee failed to prove any ground for divorce and failed to adduce sufficient corroborating testimony. We do not find the decree to be erroneous in either particular. Ferguson testified that Mrs. Ferguson had refused on many occasions to have marital relations with him and that she had repeatedly and falsely accused him of intimacy with other women. Mrs. Ferguson admitted that she had made such charges, stating on cross examination that she had accused him only of such affairs with other women as she knew about. She offered no convincing proof of the truth of her charges. Such accusations amount to personal indignities within the meaning of the statute. Relaford v. Relaford, 235 Ark. 325, 359 S. W. 2d 801 (1962). As to corroboration, a supporting witness testified that although Ferguson was kind and good to his wife, she resented him, did not have much to say to him, and would just turn away and ignore his suggestions. The witness characterized Mrs. Ferguson’s conduct toward her husband as being “real hateful.” There is evidently no collusion, for both parties are seeking a divorce. In the circumstances, the testimony satisfies the rule that only slight corroboration is required.

Although the chancellor, in orally announcing his decision, referred to the $2,000 award as temporary alimony, his remarks as a whole show clearly that he was in fact awarding Mrs. Ferguson an interest in her husband’s property in lieu of alimony. On this point the chancellor stated his intention:

Although the divorce is being awarded to Mr. Ferguson, the court still has discretion relative to the property and/or temporary or permanent alimony. I see no use, really, in taking this eighty acres and having it put up for sale and Mrs. Ferguson to receive a third for life due to its present value, reduced, that is, to its present value under our statutory table. Instead of going that route in awarding her some dower in part of the property, it’s going to be the order of the court that Mr. Ferguson pay her temporary alimony, and this is not permanent, this is temporary alimony, in the sum of $2,000 to be paid within sixty days.

We perceive no error. In Cook v. Cook, 233 Ark. 961, 349 S. W. 2d 809 (1961), we recognized the existence of some doubt in our cases about whether a chancery court has the authority to grant the wife an interest in her husband’s real property, as part of her alimony, when he secures the divorce. We set the question at rest by holding explicitly that such an award may be made when the equities call for it.

We find no inequity in the present award. Ferguson was not completely without blame in the failure of the marriage. He was shown to have had an interest in two pieces of real property, one of which had cost $4,750. Mrs. Ferguson, aged 45, was formerly self-supporting, but as a result of having been injured in a traffic accident she was at least temporarily unable to make a living and was dependent upon her brother for support. Upon the proof as a whole we discern no injustice in the chancellor’s disposition of the matter.

Affirmed.


author: Lyle Brown, Justice.

text:
    Bobby Joe HARRINGTON v. STATE of Arkansas
    5655
    473 S.W. 2d 911
    Opinion delivered December 13, 1971

      H. Allan Dishongh, for appellant.

      Ray' Thornton, Attorney General; James A. Neal, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

Appellant was convicted of attempted burglary, a felony, and appeals on one point of alleged error. On cross-examination appellant was asked about having committed other crimes. He moved for a mistrial and contends the refusal to grant the motion was error.

With regard to other crimes the following questions were asked and answers given:

Q. On June 2, 1971, were you guilty of the interstate transportation of stolen property* that property being a valuable coin collection?
A. No.
Q. Mr. Harrington, on October the 20th, 1969, were you guilty of the interstate transportation of stolen property?
A. No.

Following the propounding of each question there was an objection and request for mistrial.

The point for reversal is without merit. Our rule is clearly stated in Johnson v. State, 236 Ark. 917, 370 S. W. 2d 610 (1963):

When the defendant takes the stand, as in the case at bar, he is subject to the same rules of evidence as other witnesses, and for the purpose of throwing light on his credibility, he may, in good faith, be asked about other crimes he may have committed and other convictions, but he cannot be asked if he has been charged, indicted, or accused of other crimes.

In the recent case of Black v. State, 250 Ark. 604, 466 S. W. 2d 463 (1971), where questions of the same tenor were asked, we followed the holding in Johnson. In Black we said that on cross-examination the defendant may be asked if he was guilty of some particular offense. In Hughes & Bridges v. State, 249 Ark. 805, 461 S. W. 2d 940 (1971), Hughes was asked if he did in fact take some money from one Bobby Horne. We held the question to be proper, again reciting that on cross-examination the defendant may, in good faith, be asked about other crimes he may have committed and about other convictions.

With respect to good faith, first, it is not contended that the prosecutor manufactured the incidents which formed the basis of his two questions. Second, appellant’s credibility was a crucial issue in the case. Appellant contended the officers who testified that they saw appellant running from the direction of the building where the attempted burglary was committed, were lying. Appellant insisted that he did not go near the building. Belief of the appellant’s testimony would demand an acquittal, whereas the testimony of the officers, if believed, would establish a most essential point for conviction.

Affirmed.

Fogleman, J., not participating.


text:
    ARKANSAS STATE HIGHWAY COMM’N v Loyd COFFMAN et ux
    5-5666
    473 S.W. 2d 873
    Opinion delivered December 13, 1971

      Thomas B. Keys and James N. Dowell, for appellant.

      Cambiano ér Cree and Jones, Stratton ir Jones, for appellees.
   Lyle Brown, Justice.

This condemnation proceeding reaches us for the second time. See Arkansas State Highway Comm’n. v. Coffman, 247 Ark. 149, 444 S. W. 2d 689 (1969). The highway commission took 14.09 acres for Interstate 40. The strip taken traversed the entire southern edge of the Coffmans’ 50-acre tract. On appeal it is contended (1) that the value testimony of appellees’ appraiser contained an impermissible element of valúation, (2) that appellees’ appraiser gave no fair or reasonable basis for his opinion, and (5) that the verdict is not supported by substantial evidence and is excessive.

Turning to the first point, Loyd Pearce, the landowners’ expert appraiser, testified that the taking blocked the landowners’ ingress and egress to and from State Highway 247. It is true that the taking shut off such passageway which existed at the extreme southwest corner. Coming from Morrilton and in order to reach the remainder appellees will have to travel north on Highway 247 one-quarter mile and thence east one-quarter mile on a fifteen-foot undedicated county road. Pearce took that factor into consideration in arriving at damages. Appellant contends that damages are not allowable for circuity of travel, as evidenced by such cases as Risser v. City of Little Rock, 225 Ark. 318, 281 S. W. 2d 949 (1955), and Wenderoth v. Baker, 238 Ark. 464, 382 S. W. 2d 578 (1964). Among other things those cases hold that when a complainant’s land is not included in the taking and the alteration of a street or highway imposes circuity of travel on the general public, that imposition is not compensable. We have before us ¡an altogether different situation and a different rule has long been applied. When there is a partial taking of land and the condemnee is inconvenienced in the taking in his ingress and egress to the remainder, that inconvenience is a factor to be considered in assessing the landowner’s damages. Arkansas State Highway Comm’n. v. Union Planters National Bank, 231 Ark. 907, 333 S. W. 2d 904 (1960); Malvern & Ouachita River R. R. Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107 (1930); Springfield & Memphis Ry. v. Rhea, 44 Ark. 258 (1884); St. Louis, Ark. and Texas R. R. v. Anderson, 39 Ark. 167 (1882). The first point is withoi. merit.

Appellant’s second point — that the landowners’ appraiser gave no fair or reasonable basis for his opinion —appears to have two facets. First, it is said that the appraiser took segments of different values, averaged them, and applied the average to the entire parcel. We do not so interpret the testimony. The appraiser treated the entire fifty acres as a unit for valuation purposes and gave a before value of $500 an acre. He also said that “it could also be broken down in another way.” That procedure, he said, would be to fix a value of the ten acres fronting Highway 247 at $750 per acre; the fifteen acres fronting on the county road and north of Caney Creek, $500 an acre; and the twenty-five acres south of Caney Creek, $400 an acre. The witness said in substance that he considered the possibility of valuation by segments to prove up his overall value of $500 an acre. He definitely stated that he was using the unit rule: “Mr. Cambiano, that is based on a value of $500 per acre as compared with what lands in the area are selling for.” Actually the two methods of valuation reach the same total of value — $25,000.

The other facet of the second point is that the appraiser took the average of comparable sales prices as a guide to his valuation of the subject property. We are not cited to any portion of the record which reveals that the appraiser struck an average price on the comparables. The witness said he adjusted, on a plus or minus basis as the case might be, and when so adjusted, justified a valuation to the subject lands of $528 per acre. We assume he “rounded it off” at $500, or reduced it $28 as a precaution.

As to the third point we find the testimony to be substantial. Incidentally it is $10,000 under the award in the first case. Coffman described extensively the nature of the land and the cost of two dwellings and two modem chicken houses. Appraiser Loyd Pearce testified in minute detail about the land and improvements and related seven comparable sales. His testimony required twenty-three pages of abstracting. He recited outstanding credentials, with considerable experience in numbers of appraisals in the area of the subject property. With regard to the alleged excessiveness of the verdict it was $1,450 under Pearce’s appraisal. Improvements in the taking consisted of a residence, a modern poultry house, and a barn. Fifteen acres abutting Highway 247 were taken. Unquestionably the taking substantially damaged the remainder of the land and depreciated improvements not taken, including a second residence, a poultry house, a well house, and a storage building. We find the evidence supporting just compensation to be substantial.

Affirmed.


author: John A. Fogleman, Justice.

text:
    BIBLER BROS. LUMBER CO. and EMPLOYERS MUTUAL LIABILITY INSURANCE CO. v. Albert B. ALLEN
    5-5761
    474 S.W. 2d 116
    Opinion delivered December 13, 1971
    [Rehearing denied January 17, 1972.]

      Harper, Young & Smith, for appellants.

      James K. Young, for appellee.
   John A. Fogleman, Justice.

Appellee unsuccessfully contended before the Workmen’s Compensation Commission that he was permanently and totally disabled by a strangulated epigastric hernia and a back injury, both resulting from, or aggravated by, a fall arising out of and in the course of his employment. The commission found that appellee failed to meet two of the five statutory requirements to establish a claim for hernia, set out in Ark. Stat. Ann. § 81-1313(e) (Repl. 1960), and that appellee had not shown by a preponderance of the evidence that either injury arose out of and in the course of his employment. The commission specifically found that appellee was not worthy of belief. The commission then found that claimant had failed to show that his hernia immediately followed as a result of sudden effort, severe strain, or application of force to his abdominal wall or' that such pain caused the employee to cease work immediately. On appeal the circuit court found that a reasonable man could only come to the conclusion that appellee was injured as a result of a fall or of lifting lumber and that appellee did no work thereafter. We reverse because we find substantial evidence to support the findings of the commission.

Appellant relies upon the following well-established rules governing workmen’s compensation cases:

In reviewing the evidence it must be given its strongest probative force in favor of the action of the Workmen’s Compensation Commission. The findings of the' Commission have the same force and effort as a jury verdict and cannot be disturbed if supported by any substantial evidence. In order to justify a reversal of the Commission’s decision, one appealing must show that the proof is so nearly undisputed that fairminded men could not reach the conclusion arrived at by the Commission.
It is true that it is the duty of the Workmen’s Compensation Commission to draw every legitimate inference possible in favor of a claimánt and to give him the benefit of the doubt in factual situations. But it is not the province or duty of either the circuit court or this court to make a de novo application of this rule on review. Both courts are required to view the evidence in the light most favorable to the findings of the Commission and to give the testimony its strongest probative force in favor of the action of the full commission. Wilson Lumber Company v. Hughes, 245 Ark. 168, 431 S. W. 2d 487;
where fair-minded men might honestly differ as to the conclusion to be drawn from facts, either controverted or uncontroverted, the drawing of inferences and reaching of conclusions are for the commission, not the court. International Paper Co. v. Tidwell, 250 Ark. __(May 10, 1971), 466 S. W. 2d 488;
the question presented * * * is one of credibility and, thus, a matter within the exclusive province of the commission. Dacus Casket Co. v. Hardy, 250 Ark. __ (June 7, 1971), 467 S. W. 2d 713;
the burden was on the claimant to show that the injury arose in the course of the employment and grew out of or resulted from the employment. The findings of the Workmen’s Compensation Commission have the same binding force, effect and verity as the verdict of a jury and are treated in this court in the same manner as a jury verdict. In doing so we must accept that view of the facts which is the most favorable to the commission’s findings. We must also keep in mind that the commission must determine the extent to which credit is given to testimony, even when it is undisputed. Wilson v. U. A. W., 246 Ark. 1158, 441 S. W. 2d 475.

The commission determined that appellee was unworthy of belief, but we find, without regard to his testimony, that reasonable men could come to the conclusion reached by the commission.

There was testimony tending to show that:

Appellee was a night watchman at a mill operated by appellant. He said that he cleaned up'the mill and punched the clocks. He claimed to have been injured by a fall or by lifting while about his duties in the early morning hours of Friday, March 14, 1969, the last day he worked for appellant. The next night he was unable to work and on Saturday morning he went to his place of employment and reported his condition to Glen and James Bibler, owners of appellant. Allen did not téll them that he had been hurt. He only reported that a rupture or something that he had had in his stomach for years was bothering him. Glen Bibler had known that Allen had this trouble previously and that the rupture swelled up every once in a while. Allen had shown Glen Bibler a knot or swelling on his stomach on previous occasions, and it looked about the same when Allen showed it to his employers on this visit. Allen did not mention any back injury to them.
Allen attended church services on Thursday, March 13. Appellee’s 16-year-old niece, Caffie Allen, thereafter accompanied him on his work that night. She had previously noticed a bulge or swollen knot in the area of his stomach above the navel, and her uncle had frequently complained of it on many previous occasions when she accompanied him as he walked around the mill punching clocks. She had also heard him complain of his back. Allen asked her to go with him to his job whenever he was sick or hurting or when he had been awake all day and was sleepy.
Allen had once told James Franklin Martin, a fellow employee of appellant, of a hard place on his stomach. Dr. W. H. Lane, Jr., had treated appellee on several occasions. He found that Allen had an epigastric hernia on March 31, 1952, when the patient gave a history of it which dated back to 1946. This doctor then advised surgery, because he felt Allen could not otherwise continue to function as a laborer without trouble, and told Allen that the hernia would get worse, rather than better. Allen returned to him with the same problem in November 1954 and February 1959. This physician treated him in April 1962 for a right lumbosacral ligament strain, which was disabling for several weeks. This doctor was of the opinion that work consisting of lifting or straining would cause the discomfort and pain related to Allen’s hernia.
After Allen’s visit to his employers, he was first seen by Dr. Robert M. Franklin of the Millard-Henry Clinic at Russellville on the same day. No complaint about any back pain was made by Allen to this physician until the stitches from his hernia repair were being removed on March 24. Then Allen said that he had experienced intermittent back trouble for a long time. He did not, in any conversation with this doctor, relate his back problems to his alleged injury on March 14. In Dr. Franklin’s opinion, it was possible for Allen’s hernia to have become strangulated without regard to his activities at the time and acute pain from the strangulation could have caused his alleged fall, rather than having resulted from it. According to Franklin, there is no medical evidence that a fall or any kind of trauma will cause a hernia to strangulate. He felt that one with pain in the back and from a hernia, recurring over a long period of time, could become accustomed to it and adjust his activities accordingly.
Allen was referred to Dr. Bachman of the same clinic by Dr. Franklin on the same day. Dr. Bach-man’s diagnosis was that Allen had either an incarcerated or a strangulated epigastric hernia. He immediately performed surgery, and found the hernia to be strangulated. He had no way of knowing whether the hernia was fresh or preexisting. According to Bachman, it was possible for this hernia to have become strangulated either with trauma or with any activity on Allen’s part. Allen told this surgeon that he had experienced back pain for a long time. Allen did not then relate his back problems to his alleged fall. In Dr. Bachman’s opinion, if Allen began experiencing pain from the hernia immediately after his fall, the strangulation could have occurred an hour earlier.
Dr. Millard examined Allen on April 8, and found a herniated intervertebral disc with right sciatica. Allen then told this physician of his alleged fall, but had given a history of previous back trouble as much as 15 years earlier. This physician said that the disc problem could have existed since 1962 and that he had no way of knowing when it occurred or how long it had existed. In his opinion, one who had previous back problems could herniate a disc by such a simple movement as getting out of bed and an epigastric hernia could become strangulated by reason of anything causing increased intra-abdominal pressure süch as standing up or getting out of a church pew.

In view of appellee’s burden of showing that his disability was the result of an accidental injury arising out of or in the course of his employment, we cannot say that the Workmen’s Compensation Commission findings that appellee’s disability did not result from any work-connected injury and that the hernia did not immediately follow as a result of sudden effort, severe strain or the application of force to the abdominal wall did not have substantial evidentiary support. Appellee makes a forceful argument based upon other evidence in the case and draws other inferences which might well sustain a finding in his favor by the commission. The test on appeal, however, is not whether the evidence would have supported a result contrary to that reached by the commission. It is whether there is any substantial evidence to support the result reached. Wilson Lumber Co. v. Hughes, supra. On the basis of this test, the judgment of the circuit court is reversed.

      Citations omitted.


author: J. Fred Jones, Justice.

text:
    Michael SZKLARUK v. Olga SZKLARUK
    5-5677
    473 S.W. 2d 853
    Opinion delivered December 13, 1971

      Tackett, Young, Patton ir Harre Ison, for appellant.

      Henry C. Morris, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Michael Szklaruk from a decree of the Sevier County Chancery Court refusing to set aside a deed of conveyance from Michael Szklaruk to Olga Szklaruk and in impressing a trust on the land involved in favor of a daughter, Mary Jean Szklaruk. For convenience the principal parties will be referred to hereafter as the appellant and appellee. The appellant and appellee are naturalized Polish immigrants and met each other in a German concentration camp during the second World War. The appellant is unable to read, write or speak English and the appellee speaks very little English. Both of these parties had living spouses from whom they were not divorced when they met each other in the concentration camp. The appellant was married to Olga Szklaruk, who is still living in Poland or East Germany, and the appellee was married to John Topar, a Polish soldier who apparently was killed during the war.

When the appellant and the appellee were released from the concentration camp at the end of the war, they emigrated to the United States together as husband and wife and the appellee assumed the name of the appellant’s real wife, “Olga Szklaruk.'’ One child a daughter, Mary Jean Szklaruk now 16 years of age, was born to the appellant and appellee and they have lived together as a family unit in Sevier County for a number of years. Stanley Topar, the appellee’s son by her marriage to John Topar, also emigrated from Europe to Sevier County and lives near the appellant and appellee.

While living together as husband and wife in Sevier County, the appellant and appellee acquired 22 acres of land by deed to both of them as husband and wife. The purchase price of the land was $3,500 and the sum of $350 or $500 is still owed on the mortgage indebtedness. The parties also acquired seven head of cattle through the increase from one cow purchased by the appellee. Such was the background and situation when in September, 1970, the appellant and appellee ceased living together as husband and wife and the appellant indicated his desire to return to his wife in East Germany or Poland.

On September 18, 1970, the appellant and appellee went to the office of attorney John Hainen in DeQueen where the appellant signed a deed by his mark, transferring his interest in the 22 acres of land to the appellee. On September 25, 1970, the appellee filed suit in the Sevier County Chancery Court praying for a divorce from the appellant and for support money, mainly for their daughter. The appellant filed an answer and counterclaim. In his answer the appellant denied that he and the appellee were ever married to each other. He admitted the birth of their child and the appellee’s fitness to have custody of the child as alleged in the complaint. For his counterclaim the appellant alleged that the appellee knew he was unable to read, write or speak the English language, and through fraud, deceit and misrepresentation she obtained his signature or mark on the deed conveying his interest in their land to her, and that she did so for the sole purpose of depriving him of his property. The appellant prayed that the deed be set aside and that the court determine and award a reasonable amount for the support of the minor child.

From the evidence adduced at trial, the chancellor found that the appellant and appellee had never lawfully married and that the real property involved was owned by them as tenants in common rather than as an estate by the entirety. The chancellor further found that the deed of conveyance from the appellant to the appellee was not obtained by fraud or deceit, and that it was the intention of the appellant to convey the property to the appellee in trust for their daughter during her minority, with the title to vest in the daughter upon attaining her majority of 18 years. The chancellor further found the appellant to be the owner of the cattle involved, and he entered a decree as follows:

“It is, therefore, decreed that plaintiff owns one-half the involved lands in fee and as trustee for the daughter, Mary Jean, the other undivided one-half interest until Mary Jean is 18 years of age when it will vest in Mary Jean. In the interim, possession is awarded to plaintiff and Mary Jean. All the cattle except the one old cow are vested in defendant.”

On appeal to this court the appellant relies on the following points for reversal:

“The Court erred in finding that a constructive trust was created and intended by Appellant.
The Court erred in refusing to grant Appellant’s Counterclaim to set aside the deed from Appellant to Appellee because its execution was induced by fraud and a lack of consideration.
The Court erred in refusing to set aside the deed as it was not intended as a deed, but as a will.”

Since we do not agree with the appellant’s contentions under his second and third points, he is in no position to complain of the chancellor’s finding as set out in the first point.

Questions of fact based on the preponderance of the evidence were all that were before the chancellor in this case, and although we try equity cases de novo on appeal, we affirm the decree of the chancellor unless it is against the preponderance of the evidence in the record. Hunter v. Dixon, et al, 241 Ark. 725, 410 S. W. 2d 389. Only the two parties to this action and Attorney Hainen, who prepared the deed, testified in this case. The appellant and the appellee testified through an interpreter. The chancellor found that no divorce was involved and that' only the title to the land and cattle were before the court. The parties seem to agree with the chancellor on this point.

The appellee testified that their difficulty arose primarily because of the dislike the appellant and her son, Stanley, have for each other. She testified that the appellant executed the deed in Mr. Hainen’s office at the time he was planning to return to Poland, and that she asked the appellant to deed his interest in the property to her so “she wouldn’t lose it in case he got lost or killed down the road.” She testified that both she and Mr. Hainen explained to the appellant what the deed was. She says that she gave the appellant nothing in exchange for the deed and that he gave her nothing, since the land belonged to her as she had made all the payments on it. She testified that when the appellant was planning to go to Poland, she was afraid he would not come back and she wanted him to deed the property to her (interpreter’s quote) “so she wouldn’t get everything taken away from her, so that’s why he made the deed. She wanted it so the girl could have it.” In answer to a question as to why the appellant would give her the land, the appellee testified that the appellant asked her to borrow $1,000 from the bank because he couldn’t talk good and couldn’t read or write; that he asked her to borrow the money so that he could go to Europe, but she says she did not borrow the money because of her age. The appellee testified that she worked regularly and made all the payments on the land and felt that it actually belonged to her. She testified that the appellant paid nothing on the land nor did he help support her and the daughter. She testified that while she was living with the appellant she wanted to share everything equally with him.

The appellant testified that he paid one-half of the amount paid for the land and the appellee paid one-half. He testified that he did not know how much was still owned on the mortgage, but that when he left the home there was still $350 due on the mortgage. He testified that he recognized Mr. Hainen in court and that he first met him when the appellee picked him up on the street and told him to go to Mr. Hainen’s office. He testified that he did not know what the appellee wanted him to go to the office for, but that he did go to the office and signed the deed but that he did not know what he was signing. When asked what was told him when he signed the deed, the appellant testified- that the reason the appellee took him to the attorney’s office was that (as related by the interpreter) “in case of his death everything would go to her, and at her death it would go to him, and that would be left for his family. He says if both die the girl would get it.” When asked if he thought the instrument was a will, the appellant testified that he did not know; that the appellee just told him, “the reason he should sign over either on her or on him so they’s both have something to say. In case both of them died the girl would get it and her people in Europe wouldn’t come and get it.” The appellant testified that it is difficult for him to find work because he is unable to speak English, but when he was not working for someone else, he worked around the home. He testified that he works part time at a chicken hatchery but does not work much. Sometimes two days and sometimes a day and a half. He says that he is not supporting his daughter because he was in the hospital for awhile and does not make enough money to pay for her support. The appellant was unable to testify as to any specific amount he had earned or paid for the support of his daughter but said that he did what he could for her. He testified that he does not know what he paid on the property in money and work, but that he put in whatever he could. The appellant testified that the appellee purchased one cow and from that one cow they now have seven head. He says that the cattle belong to him.

Under questioning by the chancellor, the appellant testified as follows:

“THE COURT: Now, I’d like to ask him a question about this transaction concerning the last deed. Does he recall that meeting with Mr. Hainen? Does he recall executing the deed that Mir. Hainen prepared?
INTERPRETER: He says, ‘no.’
THE COURT: Nobody told him it was a deed?
INTERPRETER: He says ‘no.’
THE COURT: Did he think it was a will?
INTERPRETER: He says he don’t know nothing. They just called him in and told him to sign the paper.
THE COURT: Why did he do it?
INTERPRETER: He says she told him to go to the lawyer’s office. He didn’t know what he was going up there for. She told him to sign that paper and he didn’t know what it was for.
THE COURT: You ask him this. Was she with him at the lawyer’s office when he signed the paper?
INTERPRETER: He says the reason he didn’t know why he was going in there, she told him to a lawyer’s office, and she told him it was suppose to be a will. He asked what it is and said it was suppose to be a will. That’s what she was suppose to tell him, so he signed it as a will. He never know he signed a deed. He didn’t even know what he was signing.
THE COURT: Then why did he sign it?
INTERPRETER: He says because she begged him so somebody else couldn’t pitch in on it, so he signed it to keep it together.
THE COURT: Ask him if he told her he planned to go back behind the iron curtain into soviet territory.
INTERPRETER: He says he’s an American citizen and he ain’t going to leave the United States.
THE COURT: Had he ever told her he wanted to go back to Poland?
INTERPRETER: He says ‘no, sir.’ He told her he’d like to go up and come back.
THE COURT: For a visit?
INTERPRETER: Yes.
THE COURT: How was he going to pay for that visit?
INTERPRETER: He says he don’t know how much it will cost. He hadn’t tried it yet.
THE COURT: Did he have any money at the time he planned to make the trip?
INTERPRETER: He says ‘no.’ He said he would go to work and accumulate enough to go to work.
THE COURT: Did he ask her for any money?
INTERPRETER: He says ‘no.’
THE COURT: Did he try to obtain a loan from the bank?
INTERPRETER: He says he tried to get a loan from the bank.
THE COURT: What was the result of that application?
INTERPRETER: He says everything stopped. Nobody say nothing. She didn’t bother him and he didn’t bother her.
THE COURT: He didn’t go back to the bank and try to obtain a loan?
INTERPRETER: He says ‘no.’
THE COURT: He didn’t try to make another application?
INTERPRETER: He says ‘no.’
THE COURT: Was he working at the time he planned to make this trip?
INTERPRETER: He says at that time he did not work. He work around the house.
THE COURT: Did he earn any income? Did he make any money at that time?
INTERPRETER: He says ‘no.’
THE COURT: When did he plan to make the trip?
INTERPRETER: He says he can’t go unless he gets enough money to get there.
THE COURT: Why does he want to go back?
INTERPRETER: He says he wants to go see his wife and get his own wife here. He says he never got a divorce from his first wife and she knows he had a wife. He says she corresponded with his wife in Europe.
THE COURT: Did she get him to sign this deed or will as he understood it?
INTERPRETER: He says she told him it was just suppose to be him and her on that. Now he claims the whole family is on the deed. He don’t understand it.
THE COURT: He is saying under oath that this wasn’t done to secure $1,000.00 for fare to Europe?
INTERPRETER: He says he didn’t sign this for $1,000.00.
THE COURT: I have no further questions.”

Mr. John Hainen, the attorney who prepared the deed, testified that the appellant first appeared in his office alone; that after considerable difficulty in conversing with him, he concluded that the appellant was desirous of having a deed prepared, but that he did not have the description of the property to be included in the deed. He testified that the appellee then appeared in the office with the deed she and the appellant had obtained when they purchased the property. He testified that the appellant and appellee were obviously hostile towards each other and carried on a rather heated discussion with each other in Polish and occasionally in English he could understand. He says that he heard the amounts of $1,000 and $300 mentioned by the parties, and that two or three different times when $1,000 was mentioned, the appellee would state to the appellant, “I no give you a damn thing. * * * Sell yours cows and get a $1,000.00.” He says that the appellee then said to the appellant, “I no give you $300.00. Sell your cows.” Mr. Hainen testified that he had the overall impression from the demeanor of the parties that the appellant was leaving the appellee and was very anxious to get away. He says that in talking to both of them, both before and after the deed was prepared, he was convinced that the appellant wanted to make a deed to the appellee and he testified positively that the appellant knew that a will was not involved. He testified that the appellant seemed very anxious to get the whole matter settled and done with and that when the appellant signed or made his mark on the deed, he knew where to place his mark and it was not necessary to show him where to sign.

The appellant, upon recall, denied that he appeared in the attorney’s office before the appellee did, and he testified that it was the appellee who wanted the deed signed. He then concluded as follows:

“Q. Why did you sign it?
A. Interpreter: He says that she told him to go on and sign it over so they’d be fifty-fifty in it. Just like a will, not a deed.”

The deed in question is not in the record but it was apparently valid on its face as an absolute conveyance. We cannot say that the chancellor erred in holding the question of consideration immaterial. O’Connor v. Patton, 171 Ark. 626, 286 S. W. 822. The chancellor went to considerable length in questioning the appellant as to promised monetary consideration as an inducement for signing the deed, and we are unable to say that the chancellor’s finding in favor of the validity of the conveyance, under the deed, is against the preponderance of the evidence.

The appellant admitted that the appellee purchased a cow some years ago and that he had nothing to do with that purchase. He testified, however, that all of the cattle belonged to him and the appellee seems to agree with this contention. The chancellor might well have concluded that the parties had attempted to divide their property in contemplation of their separation. The appellant admits that he has been unable to support his minor daughter and there is no question that he is legally obligated to do so. In any event the chancellor’s decree does not appear inequitable.

Having concluded that the chancellor did not err in holding that the deed constituted a valid conveyance from the appellant to the appellee, we are of the opinion that the appellant is in no position to complain as to the trust impressed upon the land in favor of Mary Jean Szklaruk. The title vested in the appellee under the provisions of the deed, and the appellee has not appealed from that part of the chancellor’s decree impressing the trust on an undivided one-half interest in the property.

The decree is affirmed.


author: Conley Byrd, Justice.

text:
    ROCK STEEL BUILDING COMPANY, A Corporation v. R. D. ELGIN and Company, Inc., A Corporation
    5-5667
    473 S.W. 2d 871
    Opinion delivered December 13, 1971

      Fulk, Lovett & Mayes and Paul W. Hoover, Jr., for appellant.

      Smith, Williams, Friday, Eldridge if Clark and Jerry T. Light and James C. Clark, Jr., for appellee.
   Conley Byrd, Justice.

Appellant Rock Steel Building Company commenced this action against appellee R. D. Elgin and Company Inc., to recover under a stockholder’s contract certain “field costs” plus ten percent thereof. The trial court awarded judgment for $3,909.03. Appellant contends that the trial court erred in holding that it had failed to prove its claim for supervisory work in the amount of $6,266.12 plus ten percent and that it had failed to meet its burden of proving its claim for additional job costs in the amount of $5,886.00 plus ten percent.

The contract in so far as here applicable provides:

“On a project, each performing Stockholder subcontractor will guarantee to the Company that it will perform its portion of the work on the project for a designated field cost, plus 10% thereof. In the event the field cost is overestimated, then the performing sub-contractor will be paid the actual field cost, plus 10% thereof. In the event the field cost is underestimated, then the performing sub-contractor will be paid only the amount of its guarantee of field cost, plus 10% thereof. On any project, the nonperforming Stockholder sub-contractor of the same type will be paid 2% of actual field cost.
“At the end of the Company’s annual accounting period, to the extent that funds are available, each performing Stockholder sub-contractor which shall have underestimated a project during said period will be paid the amount of the field cost in excess of the estimate, plus 10% thereof. This payment to performing Stockholder sub-contractors shall be made before any of the Company’s funds can be distributed as bonuses, dividends or other extraordinary disbursements. If sufficient moneys are not available to satisfy all of the underestimates, plus 10% thereof, for the accounting period, then the performing Stockholder sub-contractors shall be paid a portion of the amounts due them hereunder on a pro rata basis, and any deficiencies shall be carried forward for payment as soon as funds become available.”

The controversy over the “field costs” for labor involves the labor of E. Miller. Appellant’s president testified that Miller was a field superintendent who went from job to job to expedite the work. Miller’s duties were in addition to those of a foreman and job superintendent kept on each job. On cross-examination the president stated that Miller performed the services which he and his son would have performed if they had not had so many jobs going at one time and that if he or his son had performed that labor, no “field cost” charge would have been made. Thus from appellant’s own testimony a fact issue was made as to whether Miller’s salary should have been included in the “field cost” contemplated in the contract. On this issue the trial court did not err in finding in favor of appellee.

Appellant’s second contention involves job costs which appellant alleges were for materials delivered to and used in construction of various jobs appellant performed for appellee. The proof on this issue was made by appellant’s president Leland B. Jones and Scott Lovett, a certified public accountant.

Jones testified that appellant’s books and records were kept under his supervision. Appellant operated on a purchase order system of record keeping. Nothing could be purchased for a job without a written purchase order. When the invoices came in the bookkeeping department correlated the invoice to the purchase and indicated on both records the job to which the purchase was to be assigned.

Scott Lovett testified that the items making up the $5,886.00 claim turned up in reviewing the different files. These items were not turned up in appellee’s original audit of the job costs. He did not know why they were not turned in, but some were on the wrong jobs on the books. His examination of the records and the tapes left from appellee’s audit showed that there were some fifty invoices not included in appellee’s audit. With reference to the allocation of an invoice to a particular job, Mr. Lovett stated that the invoices had a supplier’s indication and also a company notation that they were chargeable to a particular job. The company’s notation was handwritten by its bookkeeper if the supplier had not put on the invoice where it was shipped. Mr. Lovett thus had no personal knowledge of where the items were shipped and his calculations were based only upon the notations on the invoices.

R. D. Elgin, appellee’s president, testified that he had no way of knowing whether these particular payments by appellant were for materials used on appellee’s jobs. He could have called the supplier but did not do so. At this late date it would be impossible to identify materials that might be in a roof some place. He would have no objections to admitting that the items were obligations of appellee if it could be determined that the materials were used on appellee’s jobs.

Appellant had the burden of proving that its materials were used in appellee’s jobs. The proof here only shows that materials were purchased for and allocated on appellant’s books for use on appellee’s jobs. To make a prima facie showing of use in a particular job, appellant also had the burden of proving that the materials were delivered to the particular jobs, Stone Mill & Lbr. Co. v. Finsterwalder, 249 Ark. 363, 459 S. W. 2d 117 (1970). This it failed to do.

Affirmed.


author: Frank Holt, Justice.

text:
    Thelma Gay LOWREY v. Ollie Fred LOWREY and Leota Lowrey
    5-5654
    473 S.W. 2d 431
    Opinion delivered December 13, 1971

      Mobley & Bullock, for appellant.

      R. H. Hixson, for appellees.
   Frank Holt, Justice.

This appeal results from the chancellor’s imposition of an equitable lien on certain real and personal property. Appellant brought an action against appellee Ollie Fred Lowrey for divorce, child custody, maintenance, and a settlement of their property rights. Subsequently, appellee Leota Lowrey and her husband (who died before trial of the issues), Ollie’s parents, filed an intervention seeking to impress an equitable lien against certain property owned by their son and daughter-in-law. The lien was asserted against a filling station-grocery store-home combination. It was contended that the lien resulted from advancements or loans made to the Lowreys’ son and daughter-in-law. Appellant was granted a divorce, custody of their children, and child maintenance. When the parties could not agree upon their claimed property rights, the chancellor ordered the property in dispute sold at public sale. Appellee Ollie Fred successfully bid (for his mother) the sum of $19,000 for the 3 acres of land and building and $225 for the store inventory and fixtures at the commissioner’s sale. The court then awarded appellee Leota Lowrey, the intervenor, an in rem equitable lien to the extent of $10,200.00 against the proceeds of the real estate and an in rem equitable lien in the sum of $5,230.12 on any inventory proceeds. Appellant appeals from that part of the decree awarding these equitable liens. Appellee Leota Lowrey cross-appeals from that part of the court’s ruling that the intervenor was not entitled to an in personam judgment for the deficiency of the judgment on the inventory. On appeal the appellant first contends for reversal that the intervenor, Leota Lowrey, has no valid claim to an equitable lien. We think appellant’s contention is correct.

The mere loan of money for the purchase of property does not result in an equitable lien in favor of the lender. Hardin v. Hooks, 72 Ark. 433, 81 S. W. 386 (1904). Where the evidence does not show an agreement to give the lender a lien, or that the loan was acquired through trickery or fraud, then it is error to impress an equitable lien upon property as security for the loan. Hunter v. Johnston, 226 Ark. 792, 294 S. W. 2d 49 (1956). In the case at bar, the intervenor bases her claim for a lien upon an oral agreement.

The intervenor, Leota Lowrey, and her husband had owned and operated a grocery store for many years. Their son, appellee Ollie Fred, worked for his parents in the store before his marriage to appellant in 1960 and continued working for them until sometime in 1961 or 1962 when the entire store operation was turned over to appellant and Ollie Fred. This young couple continued the business at this old location until 1967 when the construction of the Dardanella Dam-Reservoir necessitated relocation. It was known in 1961 that eventually relocation would be necessary. In 1966 three acres of land were purchased in the vicinity at a cost of $1,500 and title to this property was conveyed to appellant and her husband as tenants by the entirety. A new building, consisting of a grocery store and home combination, was then built on the property at a cost of $12,379.23. The property was occupied by appellant and her husband in 1967.

The intervenor and her son, Ollie Fred, testified that the following items represented loans or “advancements” to Ollie Fred and appellant and by a “family agreement” constituted a lien against the couple’s jointly owned property: $5,230.12 in 1962 as the value of the inventory when the son and daughter-in-law took possession of the property; checks payable only to the son as follows:

March 1963 $ 150.00
July 1964 500.00
March 1965 400.00
July 1965 1,200.00
Nov. 1965 1,000.00
June 1966 1,400.00
Aug. 1967 3,000.00
Jan. 1968 300.00

Also claimed as a loan is a $4,000.00 cash item received by Ollie Fred from his father in March 1966.

Intervenor Leota Lowrey testified that the checks written to her son, as well as the cash item advanced to him, were for the purpose of establishing a “building fund” for the eventual relocation of the new store and for restocking it; that there had been a Lowrey Store at New Blaine, Arkansas for 100 years; and that she and her husband wanted to help their son keep a store at that location and he could repay the loans whenever, as the court found, the young couple “got on their feet.” She testified that appellant “knew all about it.” And when asked if appellant agreed to it, Leota Lowrey testified: “Well, she didn’t say yea nor nay — she knew what was going on. * * * She’s asked me on several different occasions if I had an interest in the store and I’d tell her I certainly did but she never did ask how much and I didn’t volunteer to tell her.”

Her son, appellee Ollie Fred, testified that the advancements were loans with the understanding they, would constitute a lien upon the property and that appellant was fully aware of the nature of these transactions and agreed to them. He and his mother testified that beginning in January 1968 (the couple separated in June 1968) he had consistently on the first day of each month for 14 months paid $100 in cash to his mother, such payments representing the $1,400 check advanced by his parents on the balance of the purchase price ($1,500) of the 3 acres. Each of these receipts were written by him and signed by his mother and each one had the words “Payment on lien on store bldg., stock and land” noted thereon. His mother testified that she had this money in “safekeeping” and. had not deposited it. After these 14 cash receipts, there followed “either 6 or 7 checks of $80” (he said 12 checks) which she said her son had given to her in additional payment of the “building fund.”

With respect to the $1,200 check, the evidence shows that on the same day it was issued it was endorsed by Ollie Fred and given in payment of a boat. His explanation was that the boat later sold for $1,100 and these proceeds went into the “building fund” which was also the personal joint bank account of himself and his wife. As to the $4,000 transaction, the son testified that this was a cash loan from his father to him and that his wife knew all about it and understood that it was a loan and subject to the asserted lien, as were all the other advancements. He testified, however, that after the $4,000 was deposited in their joint account, “I lived on it for 3 or 4 years.” His mother apparently was unaware of the $4,000 cash loan until her deposition was taken. Her intervention complaint was then amended to include this item. The $1,000 check was written to Ollie Fred when he was hospitalized. He says $800 of this check went into their joint account for the “building fund.” He testified that the $3,000 and the $300 checks, the last two enumerated, were advanced as loans at the time or a few months after the new store was completed and ooccupied: “I was just trying to pay all my bills off and clear it.” The checks were deposited to their joint personal account. However, he testified, and exhibited receipts, that he had paid most of the bills for labor and materials by cash. Most of the checks previously enumerated bore the notation “Savings for new store building.” Ollie Fred admitted that he wrote these notations on the checks at some time after he had received them. As previously indicated, all of the checks were made payable to him personally.

Appellant denied that she. at any time understood or agreed that any of these checks or the cash transaction was intended as a loan or “advancement” which would constitute a lien upon their jointly owned land and buildings. She only had knowledge of the existence of the checks for $1,400, $1,000 and $300. She was never aware of any repayments on the alleged loans being made by her husband to her mother-in-law. Although appellant worked in the store, they did not discuss business affairs with her nor was she permitted by her husband to transact any business. In fact, her mother-in-law agreed that appellant was not included “very much” in the business discussions. Appellant testified that her husband’s parents had given him money all of his life for whatever he wanted. There was also competent evidence that Ollie Fred’s parents had advanced money to his sister as gifts. Appellee Leota Lowrey testified that she and her son had discussed how to best preserve her interest in the store when he began repaying her at $100 per month in January 1968 and, further, that she did not know what a lien was prior to the timé the lawsuit was filed.

Even though it can be said that sums of money were advanced or loaned to appellee Ollie Fred Lowrey by his parents, we think the evidence falls far short of establishing by a preponderance of the evidence an oral agreement that these protracted loans would be secured by an equitable lien, or that appellant is personally liable for any of these transactions. Furthermore, appellant’s testimony is unrefuted that her marriage from the beginning was characterized by strife and discord, accompanied by threats of physical violence which resulted in three separations. It can hardly be said that such a marital climate was conducive to this asserted “family agreement.”

The appellant and Ollie Fred, who has now abandoned his appeal, agreed during the divorce action to divide various items of personalty. On appeal it is asserted that the court erred in failing to award appellant her statutory interest in certain other items of personal property. We agree with her only to the extent that she should have her statutory interest in the automobile which her husband owned at the time of their divorce.

Appellant’s counsel is awarded an attorney’s fee of $1,500 for services rendered on appeal to this court.

The decree imposing an equitable lien is reversed and remanded with directions to cancel the lien and for proceedings not inconsistent with this opinion.

Reversed and remanded on direct appeal; affirmed on cross-appeal.


author: Frank Holt, Justice. John A. Fogleman, Justice,

text:
    MACK TRUCKS OF ARKANSAS, INC. v. Walter YARBROUGH, et al
    5-5712
    473 S.W. 2d 889
    Opinion delivered December 13, 1971

      H. Derrell Dickens, for appellant.

      Spencer & Spencer, for appellees.
   Frank Holt, Justice.

The appellant instituted a replevin action to recover possession of a truck it had sold to appellee Walter Yarbrough who was in default on his payments. The appellant also sought judgment against him for the unpaid balance. A replevin bond was made by appellant in compliance with Ark. Stat. Ann. § 34-2105 (Repl. 1962). Appellee Yarbrough thereupon filed a redelivery bond for the purpose of retaining possession of the truck. Section 34-2109. However, the sheriff delayed redelivery of the truck to the appellee because he and the appellant were concerned as to the signatures of the sureties on appellee’s redelivery bond, as well as the sufficiency of the sureties with respect to the amount of the bond. Because of the delay and the refusal to redeliver the truck to Yarbrough, he filed a motion for a temporary restraining order to prohibit the sheriff from delivering the truck to anyone and, upon a hearing, that the sheriff be required to redeliver the truck to him. After a hearing, the court ordered that the sheriff should retain possession of the truck until he determined if the sureties signed the bond and were sufficient. The court further ordered; that in the event the sheriff was dissatisfied with respect to either contingency he should forthwith deliver the truck to the appellant; however, if the sheriff was convinced the signatures were proper and the security bond was sufficient, the sheriff was ordered to retain possession of the truck subject to the court’s further orders. On the same date of the hearing the sheriff made his investigation and notified the appellant and Yarbrough that the redelivery bond met with his approval.

About three weeks after the court’s order denying redelivery to Yarbrough, he filed an answer and counterclaim to appellant’s complaint and replevin action in which he alleged, inter alia, that he “is entitled to immediate possession of said truck as of the 19th day of September 1970 by virtue of a bond for redelivery filed with the sheriff” and “due to the fault of [appellant], said property has not been delivered to [appellee].” He also alleged that he was entitled to damages for being deprived of the use of the truck. Yarbrough renewed his request that he have immediate redelivery of the truck. The appellant, a few days later, filed its answer denying Yarbrough’s allegations and asked that his counterclaim be denied and that it should have “the relief prayed for in its original complaint,” which included the replevin action. About two months later the truck was substantially damaged by fire while it was in the sheriff’s possession pursuant to the original order of the court. Thereafter, following a trial on the merits of the issues, the court rendered judgment against appellee Yarbrough on the stipulated balance due on the indebtedness, plus interest and attorney’s fees, and ordered the truck delivered to thé appellant and that it be sold and the proceeds applied to the judgment. The court held that the sureties on Yarbrough’s redelivery bond were not liable and discharged them.

The only issue on appeal relates to the liability of Yarbrough’s sureties to appellant. Appellant asserts that the sureties on the redelivery bond should not be released merely because Yarbrough failed to regain possession of the truck; furthermore, the redelivery bond deprived appellant of repossession of the truck to which appellant was admittedly entitled; and that the court erred in holding that the sureties on the redelivery bond were not liable to appellant. In our view the trial court was correct in not imposing any liability upon these sureties.

The redelivery bond, entitled “Bond To Retain Property,” signed by the sureties, provided that “the defendant [appellee] in this cause, Walter Yarbrough, shall perform the judgment of the court in the above styled cause.” This is in accordance with the provisions of Ark. Stat. Ann. § 54-2105. The court found: “That such judgment should not be entered against these sureties for the simple reason that the redelivery bond did not effect the delivery. The sheriff did not give the truck to the defendant [appellee Yarbrough] and by court order has kept the truck himself.” In General Elec. Credit Corp. v. Bankers Comm. Corp., 249 Ark. 106, 458 S. W. 2d 143 (1970) we said:

“It must be remembered that an action in replevin is a special proceeding for the possession of property only, * * *. Our cases point out that damages for detention are but an incident to the right of return and that there cannot be a judgment for damages where there can be none for return. * * * Furthermore the cases point out that the sureties on a replevin bond can discharge their liability by returning the property to the person who was dispossessed.”

Ark. Stat. Ann. § 34-2109 provides that upon the execution of a redelivery bond, which was found acceptable by the sheriff in this case, “the sheriff shall restore the property to the defendant [appellee Yarbrough].” Here there was noncompliance with this statutory requirement.

In the case at bar the appellant caused possession of the truck to be removed from Yarbrough by a proper replevin bond. Yarbrough attempted to regain possession by a redelivery bond. Upon denial, he renewed his request in another pleading. In both instances it appears' that the appellant resisted his efforts. Thereafter, in holding Yarbrough liable to appellant for the unpaid balance on the damaged truck and that appellant couldn’t hold Yarbrough’s sureties liable, the court said: “So far as I can see it treats both of you exactly fair, it puts both of you in the same position. * * * As it turns out now, it perhaps would have been better for plaintiff [appellant] if the plaintiff had let defendant [appellee Yarbrough] take that truck under the redelivery bond and could now have judgment against the sureties, but at the same time he [appellant] didn’t want to do that.”

It follows that since the sheriff had possession of the truck and never restored it to appellee Yarbrough, from whom he took possession at the instance of appellant, the trial court was correct in discharging the sureties from any liability in the case at bar.

Affirmed.

Harris, C. J., and Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I respectfully dissent. In order to better demonstrate the reasons for my disagreement with the majority, it will be necessary that I first elaborate on the facts in the case.

The return of the sheriff on the original writ showed that Walter Yarbrough refused to deliver possession of the truck or to disclose its location, even though it was admitted when the case came on for trial that he was in substantial and material default on his enforceable security agreement with appellant. Only when a second order for delivery directed the arrest of this defendant and a codefendant, if the truck was removed or concealed, was the sheriff able to obtain possession. He then stored the truck at Southern Transport Company on September 18, 1970, apparently to afford Walter Yarbrough opportunity to make a bond and retain possession of the truck pursuant to Ark. Stat. Ann. § 34-2108 (Repl. 1962). The bond required by Ark. Stat. Ann. § 34-2109 (Repl. 1962) was dated September 17, 1970, the date the second order of delivery was issued. The sureties’ joint and several affidavit of justification was signed on September 19, the date Walter Yarbrough later alleged that the bond was filed. The record is not clear as to the date this bond was tendered to the sheriff.

The reasons for delay in release of the truck do not appear in the record except by inferences reasonably drawn from the court’s order on Walter Yarbrough’s motion. On September 22 Walter Yarbrough filed a motion in which he asked that the sheriff be enjoined and restrained from delivering the truck to appellant or any other person and asking that the sheriff be required to show cause why delivery to Walter Yarbrough not be ordered. Under Ark. Stat. Ann. § 34-2109, the sheriff, upon finding the bond sufficient, would have been required to restore the truck to Walter Yarbrough or to the person in whose possession he found it, except for the court’s order granting the exact relief sought by Walter Yarbrough.

Thus, it seems to me that the result reached is wholly unjust. There can be no doubt that possession of the truck was withheld from appellant, solely because of a sufficient redelivery bond signed by the sureties now before the court. Yet the result reached by the majority puts appellant in exactly the same position it would have been had it successfully obtained possession of the truck and had it been damaged before sale by reason of appellant’s own negligence. It is in the same position it would have been had the fire damage occurred during the statutory two-day period allowed for tendering a redelivery bond. And it is left in this situation in spite of the fact that the tender of a bond with sureties found sufficient was the sole reason it was prevented from taking possession. After the bond was found sufficient, there was nothing appellant could have possibly done to have obtained possession. It was the helpless victim of Walter Yarbrough’s actions, put in its status by the action of the sureties in tendering the bond. There was nothing it could do to alter the situation. Yet, the parties who kept it out of possession of the property are held to be without liability. If Walter Yarbrough did not avail himself of the opportunity to keep the truck afforded by these sureties, it was in no event the fault of appellant. Even if the temporary restraining order is considered as a barrier, this order was entered upon the request of Walter Yarbrough, based upon the bond in question, and granted the relief he sought. Timely notice of the approval or the bond was given to him by the sheriff.

We have held that one who keeps a plaintiff in replevin from obtaining possession of personal property by tendering a cross bond to retain possession is estopped from denying that he was in possession of the property at the time of the filing of the action. Hester v. Finigan, 223 Ark. 927, 269 S. W. 2d 698; Sibeck v. McTiernan, 94 Ark. 1, 125 S. W. 136; Strahorn-Hutton-Evans Commission Co. v. Heffner, 74 Ark. 340, 85 S. W. 784. Judgment against a surety on a bond to retain possession has been affirmed on the basis of this estoppel, even though the replevin defendant did not have possession of the property at the time the action was filed. Sibeck v. McTiernan, supra. The reason for the application of the estoppel doctrine can only be based upon the fact that the plaintiff is wrongfully kept from obtaining possession of the property by filing the bond. There is no recital in this bond as to who was then in possession of the property. There would not have been any restraining order had the bond not been tendered, and there would have been no question but that the property would have been delivered to the plaintiff. Ark. Stat. Ann. § 54-2109. Therefore, the same reasoning should operate to estop both Walter Yarbrough and his sureties from contending that possession was not in him. Nothing whatever appears as any impediment to his obtaining removal of any barrier to his possession by the temporary restraining order which he sought and obtained.

The effort of the appellees to equate the redelivery bond with a plaintiff’s replevin bond should certainly fail. Two entirely different situations exist. The plaintiff’s bond is executed so that one who claims the right of immediate possession may, before trial, take property from one who has the property or conceals it. Ark. Stat. Ann. §§ 34-2101, 2104, 2105, 2112 (Repl. 1962). It is conditioned upon prosecution of the action and return of the property if that be adjudged against the plaintiff in the action. The sureties may discharge their liability by returning the property to tbe person dispossessed. General Electric Credit Corp. v. Bankers Commercial Corp., 249 Ark. 106, 458 S. W. 2d 143. The redelivery bond has a twofold purpose. Keeping a plaintiff from obtaining possession is as much a purpose of the bond as enabling a defendant to retain it. Ark. Stat. Ann. § 34-2109. But the surety cannot discharge his liability by a re ¡.urn of the property. In McHaney v. Brown, 183 Ark. 201, 35 S. W. 2d 594, we said:

As we have already seen, the statute provides that the bond shall be conditioned that the defendant shall perform the judgment of the court in the action. Thus it will be seen that a redelivery bond in a replevin suit is not in the strict sense a substitute for the property released in pursuance thereof, nor has the surety on the redelivery bond the option to return the property. The condition of the bond is that the surety shall perform the judgment of the court in the action. It will be readily seen that in many cases the property, as in the case of automobiles, might be rendered valueless or at least materially diminished in value by the constant use of it from the time of the execution of the redelivery bond until the trial of the case.

The injustice of denying recovery to appellant, who was admittedly entitled to immediate possession of the property involved, from those whose actions kept it out of possession and without recourse seems so obvious to me that any argument to the contrary should be wholly foreclosed. Needlessly, I add that I would reverse the judgment.

I am authorized to state that Chief Justice Harris and Mr. Justice Jones join in this dissent.


text:
    Sam R. FLOYD v. ARKANSAS STATE BOARD OF PHARMACY
    5-5688
    473 S.W. 2d 866
    Opinion delivered December 20, 1971

      Harper, Young & Smith, for appellant.

      Warren ir Bullion, for appellees.
   Carleton Harris, Chief Justice.

As part of an investigative procedure, appellee, Arkansas State Board of Pharmacy, mailed two prescriptions to appellant, Sam R. Floyd. The prescriptions were entirely fictitious, but were filled by appellant and mailed to an Ethel Draper of Ferndale, Arkansas. Thereafter, Floyd was charged by the Arkansas State Board of Pharmacy with having violated the pharmacy laws of Arkansas, by selling Equanil to Mrs. Ethel Draper of Ferndale, Arkansas, without a valid prescription therefor on January 2, 1969, and by selling Dexamyl to Mrs. Ethel Draper of Ferndale, Arkansas, without a proper prescription therefor on January 6, 1969. After a hearing, the board found that Floyd was guilty of the violation of the pharmacy laws of the State of Arkansas, and “that such violation in the pharmacy laws of the State of Arkansas was sufficient to justify the suspension or revocation of Sam R. Floyd’s license to practice pharmacy in the State of Arkansas”. The board ordered that Floyd be suspended from practicing pharmacy for a period of 60 days. Appellant appealed to the Miller County Circuit Court, and that court found that the order of the board failed to separately set forth its findings of fact and conclusions of law as required by Ark. Stat. Ann. § 5-710 (Supp. 1969), and remanded the case to the board for the latter to reduce to writing its findings. Appellant attempted to appeal to this court from the ruling by the Circuit Court but we held that the order of remand was not an appeal-able order, and dismissed the appeal. See Floyd v. Arkansas State Board of Pharmacy, 248 Ark. 459, 451 S. W. 2d 874.

On remand, no further testimony was taken, but the board entered its findings of fact and conclusions of law as directed by the court and ordered that Floyd’s license be suspended for a period of 60 days. Findings particularly pertinent to this appeal are as follows:

“1. On or about December 31, 1968, Woodrow Little, Chief Inspector of the Arkansas State Board of Pharmacy, prepared a fictitious prescription for 30 unit dosages of Equanil, a prescription drug, purportedly signed by H. H. Chandler, M. D. and purportedly written for Ethel Draper of Ferndale, Arkansas and mailed the fictitious prescription to Gibson’s Pharmacy, Texarkana, Arkansas.

2. This fictitious prescription was one of many mailed as a part of a state-wide investigative procedure to determine the extent of illegal drug sales in Arkansas.

3. There was and is no physician licensed in Arkansas by the name of H. H. Chandler, which fact could have been ascertained by Sam R. Floyd on proper inquiry.

4. H. H. Chandler is an officer of the Arkansas State Police Attached to the Drug Abuse Control Division.

5. Ethel Draper was the maiden name of the wife of Woodrow Little.

6. Ferndale, Arkansas is not a regularly listed Arkansas Post Office.

7. The prescription contained no date.

8. The prescription contained no descriptive strength of the drug, which is made in several strengths.

9. The fictitious prescription was received by Sam R. Floyd on January 2, 1969.

10. Sam R. Floyd wilfully filled said fictitious prescription by placing 30 tablets of Equanil in a container and mailing same to Ethel Draper with a bill for the drugs and service in the amount of $2.62 on January 2, 1969.

11. Sam R. Floyd illegally, wilfully and wrongfully placed upon said prescription the designation '400 mg.’ thus selecting the strength of the drug.

12. Sam- R. Floyd admitted that he had sold the drugs without making any investigation as to the' existence of a physician named H. H. Chandler but only because he had a customer named Draper, not Ethel Draper, but with the last name of Draper.”

These findings all related to the sale of the tablets of Equanil and almost identical findings were made relative to the sale of 30 tablets of Dexamyl (except for selecting the strength) an amphetamine drug. The board then found that Floyd had “wilfully violated the pharmacy laws of Arkansas by selling Dexamyl and Equanil without a valid prescription therefor”. This order was appealed to the Miller County Circuit Court, and that court affirmed the order of the board. From this judgment of the circuit court, appellant brings this appeal. For reversal, it is first asserted that the trial court erred in attempting to remand the cause to the State Board of Pharmacy to correct its void order, and it is also urged that the action by the Board of Pharmacy was unsupported by laws or facts. We proceed to a discussion of these points.

In making his argument, appellant admits that he filled the two prescriptions but “that he had done this on the belief that he was rendering a service to a regular customer”. Ark. Stat. Ann. § 72-1040 (Supp. 1969) provides that the Board of Pharmacy may revoke an existing license of a registered pharmacist or practicing druggist or may suspend said license if he is found guilty by the board of any one of ten offenses which are specifically set out. Number 8, the offense here at issue, provides that the statute is violated if “said person has wilfully violated any of the provisions of the pharmacy laws of the State of Arkansas;”. The original order of the board only found that Floyd was guilty “of the violation of the pharmacy laws of the State of Arkansas”, and appellant’s argument is set forth in his brief as follows:

“Appellant contends that the court erred in attempting to remand the case to the Board for the reason that the Board failed to make a specific finding that Sam Floyd wilfully violated the pharmacy laws, and that said finding of no wilful violation does not warrant the suspension of Mr. Floyd’s Arkansas registration (license) to practice pharmacy within the State of Arkansas for a period of 60 days. * * * #

It is noted that the finding by the Board is void of any reference to a wilful violation of the pharmacy laws, nor does it find that Mr. Floyd ‘wilfully violated’ any of the provision of said pharmacy laws.”

It is urged that the original order of the board was void because of its failure to make the required findings of fact; that the trial court was empowered to remand the cause “for further proceedings”, meaning the taking of testimony, but could not remand for the simple purpose of having the board make findings of fact and conclusions of law on the testimony which had been previously taken. More specifically stated, appellant principally contends that the omission of the word “wilful” in the board’s first order had the effect of finding that the violation was not wilful; that the case could not be remanded simply to allow further and more specific findings and that his constitutional rights had been violated in that the procedure followed was a denial of due process. Though this last is not pinpointed, it is apparently appellant’s contention that the original order was void; that the court erred in remanding it, and that the board put the breath of life into a void order by its additional findings, which violated his constitutional rights.

We do not agree. Let it first be said that we completely disagree with appellant when he says that the board’s first order by failing to use the word “wilfully” had the same effect as a finding that it was not wilful. To the contrary, it would actually appear that the board’s finding “that such violation [our emphasis] of the pharmacy laws of the state is sufficient to justify the suspension” was intended to be a finding of a wilful violation. Be that as it may, it certainly did not have the effect of finding that it was not wilful. The complaints about the remand are pretty well answered by the case of Ford Motor Co. v. National Labor Rel. Bd., 305 U. S. 364. There, the remand of a case to the National Labor Relations Board for further findings was attacked. In holding the attack to be without merit, the Supreme Court stated:

“If findings are lacking which may properly be made upon the evidence already received, the court does not require the evidence to be reheard, [citing cases] If further evidence is necessary and available to supply the basis for findings on material points, that evidence may be taken, [citing cases] * * * *

There is nothing in the statute, or in the principles governing judicial review of administrative action, which precludes the court from giving an administrative body an opportunity to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in its record, or making additional findings where these are necessary, or supplying findings validly made in the place of those attacked as invalid.”

Numerous other cases, both State and Federal, are to the same effect. The general rule is found in 2 Am. Jur. Administrative Law § 764 p. 664, where it is stated:

“While some cases hold that a court which is restricted to review on the record may not, without express authority therefor, remand the case to the agency, pending the court’s determination of the validity of an order, for the taking of additional evidence, the general rule is that even in the absence of statute, a court which sets aside an administrative determination has the power to remand the case to the administrative agency where such power is necessary to effectuate the demands of justice, and statutes frequently grant such authority to the courts. The court does not encroach upon the administrative function by such procedure, and there is nothing in the principles governing judicial review of administrative acts which precludes the courts from giving an administrative agency an opportunity to meet objections to its order by correcting irregularities in procedure, or supplying deficiencies in its record, or making additional findings where these are necessary, or supplying findings validly made in the place of those attacked as invalid.”

It follows that we find no merit in this contention.

Appellant’s second point requires but little discussion. It is argued that Floyd did not “wilfully” violate the law. It is first stated that the inducement to appellant to fill the prescriptions was precipitated by the board, and its agent, Mr. Little. This same contention was advanced in Arkansas State Board of Pharmacy v. Patrick, 243 Ark. 967, 423 S. W. 2d 265, and rejected by this court. Floyd admitted selling the drugs but stated that it was because he had a customer by the name of Draper. Even so, there was still a violation. Again, see Arkansas State Board of Pharmacy v. Patrick, supra. There is no dispute, of course, but that Floyd wilfully and intentionally sent the drugs, after filling the prescriptions, to Ethel Draper. More than that, he even selected the strength of the Equanil sent since this was not shown in the prescription. In other words, he actually prescribed. We are unable to agree that Floyd’s violation of the statute was not “wilful”.

Affirmed.

      Examples of State cases are Hooper v. Goldstein, (Rhode Island) 241 A. 2d 809; State Board of Medical Examiners v. Gandy, (South Carolina) 149 S. E. 2d 644; State v. Haywood Electric Membership Corporation, (North Carolina) 131 S. E. 2d 865.