text:
    Burton v. Kemp.
    5-3259
    378 S. W. 2d 667
    Opinion delivered May 11, 1964.

      Griffin Smith, for appellant.

      Gus Causbie and Harry L. Ponder, for appellee.
   Jim Johnson, Associate Justice.

This suit originated with a boundary line dispute. On January 12,1962, Robert M. Burton and Marjorie R. Burton, his wife, appellants here, filed suit in Sharp Chancery Court, Northern District, case No. 1491, alleging that they owned a tract of land 25 by 35 feet which they acquired by purchase on January 6,1960, from appellees Dr. M. T. Kemp and Nordis C. Kemp, his wife. They further alleged that they, appellants, own the property lying to the east, that a woven wire fence was the agreed boundary,, as set out in the deed of purchase, that in January, 1962, appellee entered the land and removed the appellants’ fence, making some claim to the land. Appellants prayed that appellees be enjoined from interfering with appellants’ use and occupancy of the land (the 25 by 35 foot tract), that title be quieted in appellants, and that a mandatory injunction issue requiring appellees to restore the fence they removed. Appellees answered by general denial and counterclaimed, alleging that when 'they sold appellants the small piece of property they were defrauded, because appellants told them the, woven wire fence was their common boundary when in fact the fence was 25 feet inside appellees’ boundary, offered a corrected description by survey, alleging that they were entitled to re format: on of the description in the deed, and that title to the disputed land should be quieted and con-finned in appellees.

Appellants answered the counterclaim by general denial, then amended this answer by alleging that the property purchased by appellees was forfeited and sold for 1944 taxes to‘Miriam B. Norman, who in turn conveyed by quitclaim deed to appellants. Appellees relied to these pleadings by alleging that the property was redeemed by appellees from sale for the 1944 taxes by a clerk’s redemption certificate issued September 3, 1946.

The case came to trial before the chancellor on July 11, 1962. The court found in its decree that (1) the suit was originally instituted to quiet appellants’ title in the 25 by 35 foot tract conveyed to them by appellees and as described in that deed of conveyance, (2) that appellees admitted the conveyance but alleged that they executed and delivered the deed to appellants as the result of ap-' pellants’ fraudulent representation about the location of the boundary line, (3) that appellees’ allegation of fraud was not sustained by the proof and appellees’ counterclaim should be dismissed, and (4) that title to the 25 by 35 foot tract should be quieted and confirmed in appellants. The court then decreed that the title of appellants to the described property — and as described in their recorded warranty deed — was thereby quieted and confirmed in appellants. The court dismissed appellees’ counterclaim and assessed all costs against them. No appeal was taken from that decree.

Thereafter on July 5, 1963, appellants filed suit no. 1543 in Sharp Chancery Court, Northern District, against appellees, alleging that appellants are owners of certain described property in Sharp County, alleging that appellees have repeatedly trespassed on their property and recently erected a fence on appellants’ property and prayed for an injunction requiring appellees to cease further trespass and to remove the fence.

Appellees answered denying that appellants are owners of the property described in their complaint and further denying that they have at any time trespassed on any property belonging to appellants. On July 25, 1963, appellees filed an amendment to their answer alleging (1) their ownership of the described property by virtue of a recorded warranty deed of September 8, 1941; (2) whereas appellants’ claim to the property is based on a tax deed issued by the Commissioner of State Lands because of a tax sale for 1944 taxes; (3) that the tax deed is void because prior to its issuance the land was redeemed by appellees, on September 3, 1946, for which they received a clerk’s redemption certificate; and (4) that the subject matter of this suit was in issue in the prior suit and hence merged in that judgment. For their counterclaim, appellees further stated that the tax deed constituted a cloud on their title and should be cancelled and set aside.

In reply to the counterclaim, appellants alleged that the parties and the subject matter of the counterclaim were identical in the prior suit, that appellees urged the same rights to the same land, which relief was not accorded by the trial court in the prior suit and that the judgment in the prior suit is conclusive of their rights.

Case no. 1543 was brought on for trial before the chancellor on September 10, 1963, being submitted on all pleadings and exhibits, together with the entire record of the prior suit. The court stated in its order that each party had pleaded that the doctrine of res judicata barred the claim of the other, and that it was agreed that this issue was the only one to be considered by the court. The court then found that the claim of appellants was res judicata on account of the prior suit and judgment, and dismissed appellants’ complaint with costs.

Appellants’ appeal from the order of dismissal raises two points for reversal: “ (1) the trial court erred in dismissing appellants’ complaint in which they asked for injunctive relief, and (2) the trial court erred in failing to grant the appellants' the relief sought, for the reason that both parties interposed the plea of res judicata and not one iota of evidence was introduced in the present case which was not introduced in the former suit and it was considered and acted upon by the court and the court found all issues in favor of the plaintiffs [appellants]. ’ ’

At the outset this opinion may be somewhat clarified by pointing out that the complaint in the first case (prior to other pleadings) related to the 25 by 35 foot tract of land between appellants’ and appellees’ property, whereas in the second suit the complaint alleges that appellants omui the full half-acre claimed by appellees, which includes the 25 by 35 foot tract. Persistent and minute study of the brief transcript fails to reveal whether ownership of the balance of the half-acre of land, beyond the 25 by 35 foot tract, wás actually in issue in the prior suit. (Clearly, ownership and description of the 25 by 35 foot tract of land was adjudicated in the prior suit.)

A tax deed, redemption certificate, affidavit of the county clerk and other documents relating to the half-acre tract are in the record, but we are unable to determine whether they were in evidence in the first suit or merely exhibits to a pleading, in the second suit and therefore whether .ownership of the balance of the half-acre was an issue considered and determined by the court in the first suit. Thus we are unable to determine whether the doctrine of res judicata is here applicable. In Carrigan v. Carrigan, 218 Ark. 398, 236 S. W. 2d 579, this court again approved the rule of Russell v. Place, 94 U. S. 606, 24 L. Ed. 214, as quoted in McCombs v. Wall, 66 Ark. 336, 50 S. W. 876:

“ ‘It is undoubtedly settled law that a judgment of a court of competent jurisdiction upon a question directly involved in one suit is conclusive as to that question in another suit between the same parties. But to give this operation to the judgment it must appear either on the face of the record, or be shown by extrinsic evidence, that the precise question was raised- and determined in the former suit. If there be any uncertainty on this head in the record — as, for example, if it appear that several distinct matters may have been litigated, upon one • or more of which the judgment may have passed, without indicating which of them was thus litigated, and upon which the judgment.was rendered, — the whole subject-matter of the action will be at large, and open to a new contention, unless this uncertainty be removed by extrinsic evidence .showing the precise point involved and 'determined. To apply the judgment, and give effect to the adjudication actually made, when the record leaves the matter in doubt, such evidence is admissible.’ It further said in the same case 'to render the judgment conclusive, it must appear by the record of the prior suit that the particular matter sought to be concluded was necessarily tried or determined,— that is, that the verdict in the suit could not have been rendered without deciding that matter; or it must be shown by extrinsic evidence, consistent with the record, that the verdict and judgment necessarily involved the consideration and determination of the matter.’
“In Shaver v. Sharp County, 62 Ark. 78, it is said: ‘That which has. not been tried cannot have been adjudicated. * * * That which is not within the scope of the issues presented cannot be concluded by the judgment.’ ”

See also 50 C.J.S., Judgments, § 843; 30A Am. Jur., Judgments, § 468.

Accordingly, this cause is reversed and remanded for development consistent herewith.


source: Caselaw Access Project

author: Frank Holt, Associate Justice.

license: Public Domain

text:
    Wirges v. Hawkins.
    5-3262
    378 S. W. 2d 646
    Opinion delivered May 11, 1964.

      G. Thomas Bisele, for appellant.

      Gordon <& Gordon and Charles IT. Eddy, for appellee.
   Frank Holt, Associate Justice.

The principal issue raised in this appeal is whether the appellant’s complaint is subject to a motion for summary judgment.

The appellant, Gene Wirges, alleged in his complaint that the appellee, Rex Paul, secured a judgment against him in the sum of $11,187.72 in March, 1962, and caused execution to be placed in the hands of appellee, Marlin Hawkins, as sheriff; that notice was given that an execution sale of appellant’s newspaper plant was set for 9 A.M., July 5,1962; that on the day previous to this sale date the appellee and judgment creditor, Rex Paul, through his attorney, sold and assigned his judgment to Dr. Stanley Gutowski who delivered his check for $11,399.90 made payable to appellee Paul and his attorney for the full amount of the judgment plus interest; that this check was' then made available to appellee Hawkins; that the plaintiff-appellant had no interest in the said fund and was not a party to the said transaction; that on the morning of July 5, the appellee Hawkins, upon being advised of the sale and transfer of the judgment to Gutowski, refused to call off the foreclosure sale unless paid his statutory costs before the hour set for the sale, despite Gutowski’s instructions as the assignee of the said judgment; that appellant paid under protest the costs as claimed by appellee Hawkins in the amount of $528.45; appellant denied the legal right of the appellee Hawkins to collect $418.99, or the following cost items:

1. $341.99 3% commission for receiving and paying money on execution.

2. $25.00 Pee for Herman Hesson for services in making inventory.

3. $52.00 Notice published in the Morrilton Headlight. Appellant, in the alternative, sought recovery of the cost item of $341.99 from appellee Paul for making the Gutowski check available to appellee Hawkins in the event it is determined appellee Hawkins is entitled to this fee or commission. Appellees,.Paul and Hawkins, filed demurrers to this complaint. The trial court overruled their separate demurrers treating appellant’s complaint as a petition for retaxing the costs and giving each twenty (20) days in which to plead. Appellee Paul filed an answer alleging a misjoinder of the parties because he would not he a proper party in a petition to retax costs. Appellee Hawkins filed a motion for summary judgment, admitting that appellant’s complaint contained a true and correct statement of charges made for his fees. Therefore, appellee Hawkins asserted and now claims as a matter of law no genuine issue as to any material fact remains.

In response to appellee’s motion for a summary judgment the appellant filed an amendment to his original complaint questioning the good faith of appellee Hawkins in his collection of the questioned fees and sought recovery of a statutory penalty in addition to recovery of the fees in question. The appellant contended that appellee Hawkins’ admission of the collection of the questioned fees did not remove all of the factual aspects contained in his pleadings and, therefore, the motion for summary judgment should he denied. The trial court granted the motion for a summary judgment. For reversal the appellant first contends that the lower court was incorrect in granting appellee Hawkins’ motion for a summary judgment since genuine issues as to material facts exist-from his pleadings. We think the appellant is correct in this contention and, therefore, it becomes unnecessary to discuss appellant’s additional point.

By Act 123 of 1961 [Ark. Stat. Ann. § 29-211 (Repl. 1962)], the Summary Judgment Act, the Arkansas Legislature adopted Buie 56 of the Federal Buies of Civil Procedure. Therefore, we proceed to review some decisions construing the summary judgment procedure. In Sartor v. Ark. Gas Corp., 321 U. S. 620, 627, (1944) the court said:

“The Court of Appeals below heretofore has correctly noted that Buie 56 authorizes summary judgment only where the moving party is entitled to judgment as a matter of law, where it is quite clear what the truth is, that no genuine issue remains for trial, and that the purpose of the rule is not to cut litigants off from their right of trial by jury if they really have issues to try. American Ins. Co. v. Gentile Bros. Co., 109 F. 2d 732; Whitaker v. Coleman, 115 F. 2d 305.”

In Warner v. First National Bank of Minneapolis, 236 F. 2d 853, certiorari denied 352 U. S. 927 (8th Cir. 1956), we find this further definition in the application of a summary judgment:

“* =» * The court bas correctly stated that a motion for summary judgment is an extreme remedy, and should be granted only in the absence of a genuine material fact issue. The burden of demonstrating the' nonexistence of any genuine fact issue is upon the moving party, and all doubts shall be .resolved against him.” Citing cases.

In the recent case of Russell v. City of Rogers, 236 Ark. 713, 368 S. W. 2d 89, we said:

“ * * * It has been pointed out under the Federal Rule, that the theory underlying a motion for summary judgment is the same as that underlying a motion for a directed verdict. Moore’s Federal Practice (2d ed.), § 56.10 (10). Hence any testimony that is submitted with the motion must be viewed in the light most favorable to the party resisting the motion, with all doubts and inferences being resolved against the moving party.”

In Winter Park Telephone Co. v. Southern Bell Telephone & Telegraph Co., 181 F. 2d 341 (5th Cir. 1950) it was held that a summary judgment is not proper where:

“* * * facts and circumstances although in no material dispute as to their actuality, reveal aspects from which inconsistent hypotheses might reasonably be drawn and as to which reasonable men might differ.”

Also, see U. S. v. Dollar, 196 F. 2d 551 (9th Cir. 1952).

As previously stated, the appellees filed a demurrer to appellant’s complaint. The trial court then held that the complaint, in effect, is a petition for retaxation of costs, that it stated a cause of action, and is not subject to a demurrer. We agree that appellant’s complaint was not subject to a demurrer. We have said that a motion for a summary judgment is similar to a demurrer. Arkansas Airmotive Div. of Currey Aerial Sprayers, Inc. v. Arkansas Aviation Sales, Inc., 232 Ark. 354 335 S. W. 2d 813. There we said:

“* « * jrjw mof;ion for summary judgment may be likened to a demurrer to plaintiff’s reply, and it is plain enough that the pleading is not subject to demurrer.” [Emphasis added.]

In light of the foregoing decisions it is our opinion that justiciable issues exist in the case at bar in a proceeding to retax the costs and, therefore, the pleadings are not subject to a motion for summary judgment.

Judgment reversed and the cause remanded.


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

text:
    Wirges v. Bean, Judge.
    5-3183, 5-3242, and 5-3252
    378 S. W. 2d 641
    Opinion delivered May 11, 1964.
    [Rehearing denied June 1, 1964.]

      G. Thomas Eisele, for Petitioner-.
    No brief was filed for respondent.
   Ed. F. MoFaddin, Associate Justice.

These three cases all arise from the same incident and therefore have been consolidated in this Court. From the allegations in the various pleadings filed by Mr. Wirges, we understand that he, as plaintiff, had a case pending in the Conway Circuit Court; that on March 19, 1963, one of his attorneys moved for a continuance which was denied; that his said attorney then moved for a voluntary non-suit; that the Conway Circuit Court (Judge Wiley W. Bean, presiding) informed Wirges’ counsel that the Court wanted Mr. Wirges personally present in Court concerning the motion for voluntary nonsuit; that Mr. Wirges appeared in open Court, and in the course of granting the voluntary nonsuit the Court had Mr. Wirges sworn and asked him certain questions and made certain remarks to him; and then the Court granted the voluntary nonsuit, as prayed. What Mr. Wirges desires is a transcript of all that transpired while he was in the court room on March 19, 1963. Before proceeding to a decision, we identify these three cases by their numbers in this Court.

I.

Case No. 3183 is an original proceeding in mandamus, filed in this Court on October 11, 1963, by Mr. Wirges as Petitioner, against Hon. Wiley W. Bean, as Judge of the Conway Circuit Court. We are asked to issue a writ of mandamus against Judge Bean, requiring him to order his Court Reporter to file for the inspection of Mr. Wirges the transcript of the said proceedings of March 19, 1963. Mr. Wirges claims he wants this transcript so he can see exactly what the Judge said to him and about him at that time. Mr. "Wirges alleges that he asked the Court Reporter, Mr. Arrington, to furnish him the said transcript, and offered to pay for the same, but the said Court Reporter said he would not furnish the said transcript unless and until the Circuit Court ordered him to do so. Mr. "Wirges claims that he then asked Judge Bean to order Mr. Arrington to file the said transcript, and Judge Bean refused. On these allegations we are asked to issue a writ of mandamus against Judge Bean, requiring him to make the said order which Mr. Wirges desires. This case will be referred to as "the mandamus case.”

II.

Case No. 3242 in this Court will be referred to as "the ex parte appeal.” On August 30, 1963, Mr. Wirges filed a petition in the Conway Circuit Court, styled, "Ex Parte Gene Wirges.” The pleading was a motion, praying for ". . . an order directing the Reporter to transcribe and make available to the Petitioner a full and complete transcript of the proceedings of March 19,1963, referred to above.” There was no defendant in the case and no summons was issued on the Petition. The transcript reflects a docket entry of October 7, 1963: "Ex Parte motion for transcript of proceedings re Gene Wirges, March 19, 1963. Over-ruled.” It is apparent that this ex parte appeal case was a further effort by Mr. Wirges to get the transcript referred to in the mandamus case.

III.

Case No. 3252 is an original proceeding in this Court, filed January 8, 1964, styled, "Ex Parte Gene Wirges,” and is a petition praying that this Court issue a writ of Certiorari . . directing that the transcript of March 19, 1963 be brought up and made a part of the record herein, and, that upon examination thereof, said proceedings be quashed.” This Case No. 3252 is Wirges’ third attempt to put before this Court, in one form or another, his insistence that he is entitled to have furnished to him (for which he is willing to pay) a copy of what transpired concerning him in the Conway Circuit Court on March 19, 1963.

So much for the description of the cases. At the outset we mention that the thing which puzzles us in the consideration of all three of these cases is why Mr. Wirges insists so vehemently on having a stenographic transcription of what Judge Bean said to him and about him in his presence. Mr. Wirges and his attorney were both before Judge Bean and heard all that was said; and Judge Bean in his response to the petition for mandamus has attached as an exhibit a portion of Mr. Wirges ’ newspaper, “The Morrilton Democrat,” of October 10, 1963, in which appeared a full page article about what transpired in Judge Bean’s Court on March 19, 1963. Since Mr. Wirges heard all that Judge Bean said, and since one of his lawyers was present in Court and heard the entire matter, what does Mr'. Wirges need with the transcribed record of what was said! When the Court granted Mr. Wirges his desired voluntary nonsuit there was left no justiciable issue before the Court in that cause. Mr. Wirges’ explanation is that he needs the transcription to consider what he should do in other cases pending by or against him in the Conway Circuit Court. It occurs to us that proceedings in discovery in those other eases might be a more appropriate procedure. But, regardless of why Mr. Wirges wants the transcription, we reach the conclusión that he has not proceeded in the correct and approved way to get the said transcript: that is, he has not taken the approved course to get the transcript, even assuming — but not deciding — that he was entitled to it.

I. His first case here is the mandamus case. Mr. Wirges wants us to mandamus the Conway Circuit Court to in turn mandamus the. Court Reporter of the Conway Circuit Court (who has never been brought into Court) to furnish Mr. Wirges a transcript of what transpired in the Conway Circuit Court on March 19, 1963. We can mandamus a Trial Court to hear a case; but we cannot control the judicial discretion of the Court by telling the Court how to decide the case. Branch v. Winfield, 80 Ark. 61, 95 S. W. 1007; Maxey v. Coffin, 94 Ark. 214, 126 S. W. 729; Nixon v. Grace, 98 Ark. 505, 136 S. W. 670; Cantley v. Irby, 186 Ark. 492, 54 S. W. 2d 286. Mr. Wirges had a plain and adequate remedy against the Court Reporter who failed to furnish the desired transcription. The procedure in McCulloch v. Ballentine, 199 Ark. 654, 135 S. W. 2d 673, will be subsequently mentioned. Mr. Wirges cannot use mandamus as a substitute for such remedy. Basham v. Carroll, 44 Ark. 284; Automatic Weighing Co. v. Carter, 95 Ark. 118, 128 S. W. 557; and Snapp v. Coffman, 145 Ark. 1, 223 S. W. 360. So the mandamus proceeding in this Court must be denied.

II.

The second case is the ex parte appeal. The case of McCulloch v. Ballentine, supra, shows the procedure that Mr. Wirges should have pursued. When the Court Reporter, Mr. Arrington, was asked by Mr. Wirges to furnish the desired transcription, Mr. Arrington informed Mr. Wirges — as Wirges says — that he (Arrington) would not comply with Wirges’ request until the Circuit Court ordered him to do so. Mr. Wirges should then have filed an adversary mandamus proceeding against Mr. Arrington in the Circuit Court. Instead, Mr. Wirges elected to proceed ex parte; and that was an error in procedure. In McCulloch v. Ballentine, supra, we emphasized that the correct proceeding was against the Court Reporter:

"Upon the stenographer refusing thereafter to transcribe his notes and to furnish a transcription thereof, mandamus was prayed and granted by the circuit judge of that circuit requiring the stenographer to do so, and from that order is this appeal.”

Likewise, in Thornsberry v. State, 192 Ark. 435, 92 S. W. 2d 203, we pointed out the correct procedure:

“We note in the statement of the appellant that he moved the court to require the reporter to transcribe the testimony, and this motion was refused. Court stenographers are usually paid salaries which are supposed to compensate them for their duties in taking the testimony in criminal cases and preparing bills of exception. When they fail or refuse to do this the circuit court, on proper application, should compel the performance of this duty. This court has held' that application must be made first to the trial court for an order to compel the performance of the stenographer’s duty. Sutton v. City of Little Rock, 191 Ark. 603, 87 S. W. 2d 20. In this case, from the statement of appellant, it appears that he made this application, but his remedy, on the refusal of the trial court to compel the stenographer to perform his duty, was by application to this court for review of the action to the court below. We make these observations simply for the purpose of indicating that defendants, regardless of how poor they may be, are entitled to a record of the proceedings in the court below to the end that those proceedings may be intelligently reviewed by this court, and the remedy is ample to compel the court stenographer to prepare a bill of exceptions for authentication by the trial court.” (Emphasis our own.)

Likewise, in Sutton v. Little Rock, 191 Ark. 603, 87 S. W. 2d 20, the appellant had failed to obtain the proper record and had asked this Court to obtain it for him. Such relief was refused, and we said:

“Appellant’s only remedy in this case is by mandamus in the circuit court -and against the stenographer thereof to compel the stenographer to prepare and file a transcription of the proceedings had and done in the cause, and, since no such proceeding is before us for review, we pretermit any discussion of the merits of appellant ’ s contentions. ”

The language from Sutton v. Little Rock can admit of no misunderstanding: there must be a mandamus in the circuit court “against the stenographer thereof” to compel the stenographer to prepare and file the transcription.

So the ex parte appeal of Mr. Wirges presents no justiciable issue to us, since the necessary party' — i.e., Mr. Arrington, the Court Reporter — was not a party to the record below and is not a party on this appeal; and it is against him that the mandamus must be directed. But the dismissal of this ex parte appeal is without prejudice to Mr. Wirges ’ right to file a mandamus proceeding against the Court Reporter upon making the proper allegations for a cause of action.

III.

The third case is the certiorari proceeding; and we find that Mr. Wirges has misconceived the procedure. Certiorari cannot be used as a substitute for another adequate remedy. As we have already stated, Mr. Wirges’ remedy was to file a mandamus action against the Court Reporter in the Circuit Court. That remedy has not been pursued; and he cannot use certiorari as a substitute for that procedure. Merchants & Planters Bank v. Fitzgerald, 61 Ark. 605, 33 S. W. 1064; Stroud v. Conine, 114 Ark. 304, 169 S. W. 959; Kenyon v. Gregory, 127 Ark. 525, 192, S. W. 887; McElvain v. Border, 215 Ark. 626, 221 S. W. 2d 793. So the petition for certiorari is dismissed.

We have not overlooked Act No. 148 of 1953, even though it was not mentioned in the brief. Prior to the Act No. 148, we had uniformly held that the court reporter of the trial court was not subject to the direct order of the Supreme Court as regards the preparation and/or filing of the transcription of the testimony heard in the trial court. The case of Ex Parte Whitley, 113 Ark. 372, 168 S. W. 144, states the holding and the reasons for it. To simplify procedure after the Supreme Court had acquired jurisdiction on appeal, the Legislature of 1953 enacted the said Act No. 148, captioned and reading as follows:

“AN ACT to Clarify the Supreme Court’s Jurisdiction in Matters Affecting Appeals.
“Be It Enacted by the General Assembly of the State of Arkansas-.
“SECTION 1. Where the Supreme Court has acquired jurisdiction of a cause, hut it is made to appear that the record is incomplete for want of documents, exhibits, or a bill of exceptions, and the trial court has lost such jurisdiction, the Supreme Court or a judge thereof shall have power to direct a writ to any clerk, reporter, or other person charged with the duty of preparing the matter in question, and may require compliance with its discretionary orders.”

Thus, when a case has been appealed to the Supreme Court the court reporter of the trial court is now directly amenable to our orders in regard to preparing and/or filing the transcription of the testimony heard in the trial court. We recognized and applied the Act No. 148 in the case of Edwards v. State, 232 Ark. 748, 339 S. W. 2d 947. But the said Act No. 148 affords Mr. Wirges no relief in any of these three cases here involved. The mandamus case, as well as the certiorari case, is an original proceeding in this Court; and the Act No. 148 is limited to cases involving appellate jurisdiction. The caption so states. The ex parte appeal of Mr. Wirges is without a proper and necessary party — i.e., the Court Reporter —and, therefore, presents no justiciable issue.

The petition for mandamus is denied, as is also the petition for certiorari; and the ex parte appeal is dismissed.

In No. 3242, Justice Ward concurs because he believes there is no justiciable issue.

Harris, C. J., and George Rose Smith, J. dissent in No. 3242.

George Rose Smith, J.,

(dissenting). It seems to me that in Case No. 3242, the ex parte appeal, the majority are taking an altogether unrealistic position in holding that Wirges should have filed a conventional lawsuit against the court reporter, with a formal complaint, service summons, time for answer, and so forth. I find nothing in our prior decisions that lays down such a requirement.

Wirges filed a motion asking that the court reporter be directed to make available a transcript of the proceedings of March 19, 1963. In substance that motion amounted to exactly the same thing as an application for mandamus. The stenographer is, as we said in Bell v. Rice, 183 Ark. 105, 35 S. W. 2d 88, at all times amenable to the orders of the circuit court itself, acting under the supervision and control of the circuit judge. It would have been a simple matter for the court, in passing upon Wirges’ motion, to have conducted an informal hearing and given to the reporter whatever instructions were thought to be appropriate. To me it is unthinkable that this litigant, in order to obtain a record to which in my opinion he was entitled as a matter of right, should be required to file an adversary proceeding merely to convince the circuit judge that he should direct his own stenographer to transcribe his notes.

A comparable situation arises under our own Rule 5. This rule provides that if an appellant thinks that our clerk is in error in refusing to accept a tendered record he may file a motion for a rule to require the clerk to docket the appeal. It has never been suggested that we should have our clerk served with a summons so-that the dispute may be brought to an issue by written pleadings. In my judgment it is equally unreasonable to require this appellant to engage in formal litigation with a court stenographer as a condition to obtaining a transcript of the proceedings.

Harris, C. J., joins in this disent.


author: George Bose Smith, J.

text:
    City of Harrison v. Boone County.
    5-3260
    378 S. W. 2d 665
    Opinion delivered May 11, 1964.
    [Rehearing denied June 1, 1964.]

      Bill F. Bo shier, for appellant.

      Bruce Bennett, Attorney General, by John P. Gill, Asst. Atty. General, for appellee.
   George Bose Smith, J.

This is a suit by Boone county to enforce a contract by which it leased certain county property to the city of Harrison. The city defended the case upon the ground that the contract was invalid in its inception and imposed no binding obligation upon the city. The chancellor upheld the contract and accordingly awarded the county a judgment for past-due rentals. We think the court was right.

In 1949 the county owned a rectangular block of land within the city, the tract being occupied by the courthouse. The outer ten feet along all four sides of the block was separated from the rest of the tract by a curbing. This ten-foot strip had been paved for a number of years and was used for parking and as a street. The outer edge of the strip abutted city streets on all four sides.

In April of 1949 the city council adopted an ordinance providing for the installation of parking meters within the city. At the same time the council approved an oral motion “to have the city install parking meters on the ten foot strip of county property around the county square and used for parking purposes. The county to receive one half of the net proceeds from said parking meters, the city to provide for all servicing of meters.”

Thereafter the mayor and city recorder executed a contract with the county, hy which the city leased the strip upon the terms recited in the ordinance. The lease was to remain in force as long as the strip was used by the city for street purposes. The contract was duly approved by an order of the county court. The city installed parking meters along the curbing of the courthouse square and accounted to the county for one half of the net revenues until 1962. The city then took the position that the agreement was void and refused to make further payments. It insists, however, that it is entitled to maintain the meters upon the county property and to keep the entire revenue for itself.

We are of the opinion that the city is legally and morally bound by its contract. The city relies primarily upon Ark. Stat. Ann. § 19-3801 (Repl. 1956), which provides that the city council shall have the care, supervision, and control of public streets within the city. This strip, however, belongs to the county and has not been dedicated as a public street. Both the city and the county have the power to enter into contracts. Ark. Stat. Ann. § 19-2301 (Repl. 1956) and § 22-601 (Repl. 1962). There is no repugnance between the city’s permissive control of the strip and its obligation to repay the county for the privilege of maintaining parking meters thereon. In an analogous case we upheld the power of the county to lease two rooms in the courthouse to a city. Fayetteville v. Baker, 176 Ark. 1030, 5 S. W. 2d 302.

The city also contends that the execution of the agreement should have been authorized by a written resolution of the council. Ark. Stat. Ann. §§ 19-2311 and 19-2403. This is not a fatal defect, for the city did have the power to enter into a contract such as this one. Under the doctrine of Day v. City of Malvern, 195 Ark. 804, 114 S. W. 2d 459, and many similar decisions, the city ratified the agreement by performing its obligations thereunder for more than thirteen years.

Affirmed.


author: Paul Ward, Associate Justice. Carretón Harris, Chief Justice

text:
    McMillion v. Armstrong.
    5-3270
    378 S. W. 2d 670
    Opinion delivered May 11, 1964.
    [Rehearing denied June 1, 1964.]

      Loftin & Howard,by E. H. Herrod, for appellant.

      Wright, Lindsey, Jennings, Lester & Shults, for appellee.
   Paul Ward, Associate Justice.

This litigation grows out of certain alleged defamatory statements made by appellant, Dr. Stephen D. McMillion, about appellee, George V. Armstrong. The jury returned a verdict in favor of appellee and against appellant in the amount of $5,000 compensatory damages and $500 punitive damages. On appeal the principal issue is whether or not appellant’s statements were privileged. To clarify the issues later discussed wé think it expedient to set out below certain undisputed background facts.

Background. The North Little Rock Airport is a subdivision of the North Little Rock City G-overnment. The Airport is under the immediate control of a commission composed of five members. As of August 7, 1962, the members of the commission were W. F. Laman, Mayor; Harold Simons, Manager; Eddie Holland; S. W. (Bud) Bowker; and, C. F. Allen.

At times pertinent to this litigation the commission was considering the construction of an administrative building on the airport grounds, and Robert L. Moore, a •contractor, was figuring with the commission on constructing said building. While Moore was attempting to confer with Simons and Armstrong he got the impression they were proposing some type of unethical deal and he reported the “deal” to appellant. Appellant in turn reported the alleged “deal” to the Mayor, the members of the commission, and his alderman.

Pleadings. Early in 1963 appellee and Harold Simons filed a complaint (and an amended complaint) •charging appellant with making false and defamatory statements (on August 7, 1962) about Armstrong in words as follows:

“A contractor has been in touch with me and has told me that you tried to get some work done on your home and have the cost of the work included in the price •charged to the City of North Little Rock for the airport administration building. I believe the man, and I know you did it. I will not serve on the airport commission with a man of your caliber, and either you are going to resign or I am.”

It was also alleged that statements óf import were made by appellant on other occasions and to other people, and that snch defamatory statements were calculated to cause, and did in fact canse, great injury to appellee’s reputation. The complaint (and amended complaint) contained similar alleged statements by appellant against Simons, but Simons (for undisclosed reasons) later abandoned his part in the action.

To the above complaint appellant .entered a general denial, and also stated “that if any statements were made that referred to these plaintiffs in any manner, that the statements would be privileged communication and not subject to liability . . . [and] that if any statements were made they were the truth. ’ ’

Judgment was entered in accord with the jury’s verdict, and on appeal appellant relies on four separate grounds for a reversal. . However, under the view we take, it will be necesasry to discuss only one ground or point. It is our conclusion that the judgment must be reversed because of the error contained in Instruction Number I given by the trial court. The pertinent parts of the instruction read:

“Yon are instructed that as a matter of law that the communication involved in this action was not privileged, under all of the circumstances in evidence. Also, you are instructed that there is no evidence that would justify you in finding that the words spoken were true. Therefore, since there is no dispute as to the import ofi the words spoken by Stephen D. McMillion, you are instructed that they are actionable per se, and George V. Armstrong is entitled to compensatory damages as a matter of law.”

There are other portions of the instruction which need not be copied, but which may be referred to later.

At least two vices are apparent in the-court’s instruction which calls for a reversal. They are: (a) the court usurped the function of the jury and; (b) it deprived appellant of the defense of good faith and conditional privilege.

(a) Assuming for the purpose of this opinion only, that it was incumbent upon appellant to show appellee proposed an unethical “deal”, we think the testimony makes a jury question on that point. Since the jury has a right to accept or reject testimony, to believe or not to believe any witness, and to draw reasonable inferences, we refrain from setting out the testimony, but refer only to the portions favorable to appellant. Moore said he made two or three attempts to get the plans for the airport building from Simons, but that Simons failed to produce them — that finally Simons asked him to come to his house late one evening and get the plans ■ — ■ that when he arrived Simons did not produce the plans and showed no interest in them but pointed out certain work he wanted done on his house; then Simons (without any explanation) took him to appellee’s home where he (Moore) presumed the plans were located — that when he got there appellee (who was introduced by Simons as a commissioner but who in fact was not) proceeded to show him what he wanted done to his house — that appellee asked no questions about price but said the gate would be open for him to come and go when he pleased. From these facts and circumstances he concluded Simons and appellee wanted him (in order to get the contract) to repair their houses without cost to them. Moore met with the other commissioners on August 6 and talked to them by phone on August 7 (1962) and each time stated he thought an unethical “deal” was being proposed — he stated each time he didn’t remember what exact words were spoken but it all amounted to a “deal”. In the case of Thiel v. Dove, 229 Ark. 601, 317 S. W. 2d 121, we said:

“On the other hand, it is clearly improper for the court to tell the jury that a specific fact in evidence is sufficient to support an inference of guilt, negligence, or the like. Blankenship v. State, supra [55 Ark. 244, 18 S. W. 54]; Smith v. Jackson, 133 Ark. 334, 202 S. W. 227; Coca-Cola Bottling Co. of Southeast Arkansas v. Bell, 194 Ark. 671, 109 S. W. 2d 115. It is for the jury to say whether the particular inference should be drawn from all tlie proof in the case, and consequently the court comments on the weight of the evidence when it declares that a certain inference may be drawn from a specific fact.”

(b) In our opinion it was not necessary, however, for appellant to prove appellee actually proposed an unethical “deal” but only to show that he acted in good faith when he passed on to the other commissioners the information he had received from Moore. The record is replete with evidence that Moore meant for appellant to understand Armstrong was proposing an unethical “deal”. He made this clear to appellant (and to three commissioners) at the meeting on August 6 and also (over the phone) to the same people and the Mayor on August 7. Also, there is ample testimony in the record from which the jury could find that appellant acted only in good faith and for the best interest of the city and the commission when he talked about this matter to others. In most instances he was seeking advice as to what action should be taken by him. It was not until he was advised by his fellow commissioners to do so that he confronted appellee with the charge (at a meeting of the Mayor and the commissioners) on the night of August 7. In addition, we find nothing in the record to indicate that appellant mentioned the matter to anyone except to the other commissioners (including the Mayor) and to the alderman of his own ward. It is established by the record that the council appoints the commission members.

Under the facts and circumstances outlined above it was for the jury (and not the court) to say whether appellant acted in good faith. If appellant did act in good faith, he had a conditional privilege to convey the information to those with whom he was associated in a common cause. Rest., Tox’ts, § 596. In the case of Bohlinger v. Germaina Life Insurance Company, 100 Ark. 477, 140 S. W. 257, we said:

“A communication is held to be qualifiedly privileged when it is made in good faith upon any subject-matter in which the person making the communication lias an interest or in reference to which he has a duty, and to a person having a corresponding interest or duty, although it contains matter which, without such privilege, would be actionable.”

We recognize the possibility that appellant may have started out in good faith, but that he acted unreasonably later (in not apologizing to appellee) when he learned more about the facts, and thereby abused the conditional privilege which he enjoyed. However, that was also a matter for the jury and not for the court to decide. In Thiel v. Dove, supra, we also said:

“A conditionally privileged occasion is also abused if the speaker is motivated by malice rather than by the public interest that calls the privilege into being . . . We think the proof made the existence of malice a question for the jury.”

See also Rest., Torts, § 599. It is true that in this case (and in said Instruction No. I) the court permitted the jury to find whether or not appellant acted with malice, and it is also true that the jury found he did act with malice. Those facts do not, however, ciire the other errors in the instruction above pointed out. Had the jury found (if permitted to do so) that appellant was protected by a conditional privilege it might have found differently as to malice.

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

Reversed and remanded.

Harris, C.J., and Robinson and Holt, JJ., dissent.

Carretón Harris, Chief Justice

(dissenting). I am not in accord with the conclusion by the majority that this case must be reversed because error was committed in giving to the jury Instruction No. I, and I very much disagree with the finding that there was sufficient evidence to submit to the jury the question of whether the words spoken were true. The sole testimony relating to the contact between Colonel Armstrong and Robert L. Moore is as follows:

“Q. Now, Mr. Moore, can you tell the jury when you got out of the car and walked up to Mr. Armstrong’s, who introduced you?
A. Mr. Simons introduced me to Col. Armstrong as a member of the Airport Commission.
Q. Did you thinlc (my emphasis) at that time you were looking for building plans?
A. I thought we were going to the Airport Commissioner’s house to get a set of plans for the building.
Q. Who told you that?
A. I wouldn’t say that I was told. I wasn’t told why we were going there but since I had gone to Harold’s house in the first place to look at the plans and he didn’t show them to me there then I assumed (my emphasis) that'we.were going to Col. Armstrong’s house to see the plans.
Q. When you got to Col. Armstrong’s house what was said?
A. I was introduced to his wife and we went straight on out the glass doors to the back of the house to this sun deck or patio.
Q. What transpired when you got out there—
A. He said what I—
Q. Who said?
A. Col. Armstrong said ‘what I wanted was to take this hand rail off’ he said ‘I will probably use it later on another patio at the foot of the steps.’ He said, ‘I want a roof built over it and I want it screened in and fixed to where it will be a screened in patio.
Q. Did he tell you what kind of roof he wanted you to use?
A. I asked him specifically. I said, ‘What type structure are you talking about? I said, ‘Do you want wolmanized lumber, something of a lifetime construction or do you want to go the cheaper route or what do you want do you want fiberglass room or do you want shingles?’ and he said, ‘I am leaving all that up to you.’
Q. Then, what did you do ?
A. We went back through the house outside. He told us the side gate would be open that I could come and go and that if there was no one at home I could come and go and he went back in the house and we got in the car and left.”

This is all that is revealed by the transcript as to any contact between Armstrong and Moore; in fact, Mr. Moore stated that this was the only time he had ever seen Colonel Armstrong. Based on prior conversations with Simons (which were properly held by the trial court to be inadmissible) and the fact that Colonel Armstrong did not ask what the repair work would cost, Moore decided that he was being propositioned to do the work free of charge to Armstrong, (apparently the latter would use his influence as a member of the Airport Commission to assist Moore in being awarded the contract for the work at. the airport) and the private work for appellee would then be included in the bill to the city. Thereafter, Moore told Dr. McMillion, in effect, that appellee had tried to make a ‘ ‘ deal ’ ’ with him. This, then, is the sum total of the evidence upon which Dr. McMillion based his charge that appellee was dishonest, and appellant steadfastly refused to alter that opinion, although he had only met Armstrong, and knew nothing about him. One circumstance that makes the charge so “far-fetched” is that Armstrong ivas not even a member of the Airport Commission at the time that Moore went to the Colonel's home. The conversation at the home took place on April 19, 1962, and appellee became a member of the Airport Commission on May 10,1962. In fact, the work was done on appellee’s house by another contractor, and paid for, before Armstrong ever became a member of the Commission. The record reflects a check given by Armstrong to J. C. Cartwright in the amount of $280.00 on May 8, 1962. I think it can be said, without fear of contradiction, that if Colonel Armstrong had been convicted of soliciting a bribe on the basis of the testimony offered in this case, every member of this court would unhesitatingly have voted to reverse such conviction because of a complete lack of evidence.

Considering the fact that McMillion made his accusation concerning appellee to other members of the Commission individually, before making it at the Commission meeting, I have some doubt that he was entitled to the defense of "conditional privilege,” but even if entitled to that defense, it does not appear, under the circumstances, that the court’s instruction was prejudicial. I should mention one of the general rules relating to privileged defamatory communications. In Arkansas Associated Telephone Company v. Blankenship, 211 Ark. 645, 201 S. W. 2d 1019, this court, quoting 36 C.J., Page 1248, stated:

4 4 4 The protection of the privilege may be lost by the manner of its exercise, although the belief in the truth of the charge exists. The privilege does not protect any unnecessary defamation. In order for a communication to be privileged, the party making it must be careful to go no farther than his interest or his duties require. Where the party exceeds his privilege and the communication complained of goes beyond what the occasion demands that he should publish, and is unnecessarily defamatory of plaintiff, he will not be protected, and the fact that a duty, a common interest, or a confidential relation existed to a limited degree is not a defense, even though he acted in good faith.’ ”

In this state, the qualified or conditional privilege can be destroyed by malice, and the malice necessary to destroy a qualified privilege can, in addition to 4 4 malice in fact” (hate, vindictiveness, animosity) consist of such reckless disregard of the rights of another as to constitute the equivalent of ill will. Dun & Bradstreet, Inc., v. Robinson, 233 Ark. 168, 345 S. W. 2d 34.

Let it be remembered that the jury was not compelled by the instruction in question to establish damages of $5,500.00. A verdict for $1.00, or other nominal amount, could have been returned, but, in addition to fixing the sum of $5,000.00 compensatory damages, the jury returned a verdict of $500.00 as punitive damages, and, in doing so, necessarily found that Dr. McMillion had acted ivith malice. This meant that the jury found either that McMillion’s charge was wanton and reckless, or that he acted with actual malice. In Erwin v. Milligan, 188 Ark. 658, 67 S. W. 2d 592, this court said:

“The court submitted to the jury, in the case of Mrs. Milligan against the appellant, the question of punitive damages. Punitive damages are damages imposed by ivay of punishment, and are given for the loss sustained. It is generally said that punitive damages are awarded in view of the supposed aggravation of the injury to the feelings of the plaintiff by the wanton or reckless act of the defendant. ”

The finding of the jury in the instant case is not difficult to understand under the testimony presented. Even after the meager evidence (to my way of thinking, no evidence) had been discussed in the Commission meeting, appellant refused to “back up,” but continued to insist that, “I believe you did it,” and, “I still think it happened.” The doctor stated that he would not serve on the same commission with a man of Armstrong’s character, and that Armstrong would resign or he would resign, and if he (appellant) resigned, he would make known what had happened. In fact, at the trial,- the doctor stated that he still adhered to the view expressed.

Since the jury found malice to have existed, I cannot see how appellant was prejudiced by the instruction. The situation bears some similarity to our holding in Weatherford v. George, 229 Ark. 536, 317 S. W. 2d 147. In that case, involving a collision between vehicles, the appellant was found by the jury to be 100% negligent, and appellee accordingly guilty of no negligence. On appeal to this court, appellant vigorously contended that the trial court had erred in not submitting a particular instruction that he requested, relative to appellee’s negligence being the proximate cause of the accident. In rejecting this contention, we said:

“It certainly follows, that if the jury found George guilty of no negligence whatever, they would not have found that negligence on his part was the proximate-cause of the mishap. Accordingly, even if the failure to give the instruction was error, the verdict rendered by the jury had the effect of healing or remission. ’ ’

Under the same reasoning, even if appellant was entitled to have the defense of conditional privilege submitted to the jury, Such defense could have been of no aid, for the jury found malice — and awarded punitive damages — and when the jury found malice, the asserted defense of conditional privilege was wiped out. Of course, this finding "also nullified appellant’s contention of “good faith,” for irrespective of Dr. McMillion’s belief in the truth of his accusation, the jury found, at the least, that he had acted with conscious indifference and reckless disregard of the rights of appellee.

Solomon, reputed to have been the wisest man who ever lived, said, “A good name is rather to be chosen than great riches . . ,”

Aside from the fact that to accuse a man of a specific act of dishonesty, or a crime, is slander per se, the record establishes that McMillion’s charges raised doubts in the minds of some of his fellow commissioners as to appellee’s integrity. For instance, Commissioner Bowker stated, “It makes anybody stop and think * * * I am saying it makes you stop and wonder.”

Commissioner Allen testified:

“It is hard for anybody to set here and hear accusations made or remarks made about anybody without being impressed one way or the other. As to whether that caused me to say right away, ‘well I believe he is dishonest.’ No. Did it put a doubt in my mind whether he could have done it. Yes, but now whether to say he was dishonest just like Mr. Bowker said it makes you stop and think.” * * *
“Q. The only reason you could possible have for thinking he did do it was that Dr. McMillion had accused him of doing it and Mr. Moore said Lt. Col. Armstrong permitted him to look at his house?
A. That is about it. ”

Eddie Holland, Chairman of the Airport Commission, in response to the question as to whether he had any reason to believe Colonel Armstrong to be a dishonest man, stated:

“No, sir. I have no reason other than what I heard Mr. Moore say and being connected with the Airport Commission I was impressed and I felt like the commission should do something about it. I felt it had happened.”

The unfortunate aspect about an accusation that reflects upon one’s character, is that, even if totally untrue, and perhaps not really believed by the recipients of the information, such remarks almost invariably leave a question in the minds of the hearers, and every time the accused person’s name is mentioned, the accusation is remembered, and the mental reaction, consciously or subconsciously, is — “I wonder”.

As stated, I cannot agree that there is any testimony that would substantiate the truth of the charge, and the finding of malice cured any defect that might have existed under the court’s instruction.

I therefore respectfully dissent.'

Robinson and Holt, JJ., join in this dissent.

       Referring to Simons.

       Emphasis supplied.

      ‘Proverbs 22:1.


author: Carleton Harris, Chief Justice.

text:
    Ark. State Highway Comm. v. Sherry.
    5-3288
    381 S. W. 2d 448
    Opinion delivered May 18, 1964.
    [Rehearing denied September 14, 1964.]

      Marh E. Woolsey and Don, Langston, for appellant.

      James R. Hale and Lewis D. Jones, for appellee.
   Carleton Harris, Chief Justice.

This appeal arises from a decree of the Washington County Chancery Court, wherein that court enjoined the Arkansas State Highway Commission and Anchor. Construction Company from entering upon certain premises which the Highway Department contends have been dedicated to the public.

On April 17, 1947, C. F. Noel and wife owned a tract of land which they caused to be platted into lots. The plat was filed for record in the office of the Circuit Clerk of Washington County on April 17, 1947, and is properly recorded in one of the plat record books. Thereafter, Mr. and Mrs. Noel sold lots with reference thereto. (See attached plat.) This litigation arose in 1963 when the Highway Commission decided to reconstruct and widen U. S. Highway No. 71. On the basis of the plat, the Highway Department contends that Mr. and Mrs. Noel dedicated to the public 50 feet on the west side of the center line of the highway, and appellees contend that the extreme western 20 feet of the 50 is a part of their property. Accordingly, the sole question presented is whether the 20 foot strip abutting U. S. Highway 71 (Thompson Street) has been dedicated to the public, and it is more or less admitted by appellees that appellants are due to prevail if there is no ambiguity in the plat of the Noel addition; on the other hand, if there is any ambiguity, testimony was proper to determine the actual intent of the dedicators. This last (ambiguities) is the contention of appellees, and they stoutly argue that the evidence shows that the Noels never had any intention to dedicate the 50 feet to the public, and the decree should therefore be affirmed. "We cannot agree.

A stipulation entered into between the parties reflects that Mr. and Mrs. Noel would have, if present at the. trial, testified that they did not intend to dedicate the 20 foot strip to the public, and did not intend for the county surveyor to plat a 50 foot right-of-way for U. S. Highway 71. Appellant reserved the right to object to the competency of the evidence, did object and the court properly sustained the objection. In Poskey v. Bradley, 209 Ark. 93, 189 S. W. 2d 806, this court, citing an earlier decision, Frauenthal v. Slaten, 91 Ark. 350, 121 S. W. 395, said:

“While the fact of dedication depends upon the intention of the owner to dedicate, the intention to which the courts give heed is not an intention hidden in the mind of the landowner, but an intention manifested by his acts.”

Also, in Porter v. City of Stuttgart, 135 Ark. 48, 204 S. W. 607, the court said:

“That plat need not be made by the owner, and where he sells lots in conformity to the city map on which his property is laid out into blocks, streets, avenues and squares, such recognition of the plat is a dedication to public use; he adopts the map by reference thereto . . . A common law dedication does not operate as a grant, but by way of estoppel in pais. This doctrine is adopted from necessity for lack of a grantee capable of taking. The dedication, therefore, is regarded not as transferring a right, but as operating to preclude the owner from resuming his right of private property, or indeed any use inconsistent with the public use. The ground of the estoppel is that to reclaim the land would be a violation of good faith to the public and to those who have acquired private property with a view to the enjoyment of the use contemplated by the dedication, and, in case of sale with reference to plat, that the easement and servitudes indicated by the plat constitute a part of the consideration for which all conveyances referring to the plat are made, and therefore no person, while claiming under the conveyance can be permitted to repudiate them or deny that they exist where they are capable of existing.”

Likewise, in Incorporated Town of Mountain View v. Lackey, 225 Ark. 1, 278 S. W. 2d 653, we said:

“We have many times held that when the owner of land makes a plat thereof and sells lots with reference to it, this amounts to a dedication of the streets and public ways shown on the plat. See Hope v. Shiver, 77 Ark. 177, 90 S. W. 1003. In Frauenthal v. Slaten, 91 Ark. 350, 121 S. W. 395, the rule is stated:
‘The law bearing on the question of dedication of property to the public use is well settled by the decisions of this court. An owner of land, by laying out a town upon it, platting it into blocks and lots, intersected by streets and alleys, and selling lots by reference to the plat, dedicates the streets and alleys to the public use, and such dedication is irrevocable. He will also be held to have thereby dedicated to the public use squares, parks and other public places marked as such on the plat. The dedication becomes irrevocable the moment that these acts concur.’ ”

While Noel did not prepare the plat, he certainly approved and adopted.it by causing it to be filed, and by selling lots with reference thereto.

Though the dedication was in 1947, and was not accepted until the commission decided to widen the highway in 1962, the dedication is irrevocable, and the highway commission had the right to accept this dedication for the public use when the necessity should arise.

Appellees point out that the plat denotes the western line of the street as marked by a fence, and they apparently contend that this constitutes an ambiguity; also, they assert that' in comparing the Tontitown road on the north side of the plat with Thompson Street on the east side, it will be noted that the “boundary lines of Tontitown Eoad are clear and dark and show as boundary lines, while the fence line on the east side of the plat is not only marked with ‘x’s’ to indicate barbed wire, but the word ‘fence’ is written in between lots 3 and 4.” The record does not reflect when the fence was placed in its location, or who was responsible for having it done, but we do not think these facts are sufficient (under our decisions, heretofore quoted) to raise doubts as to the intention of Mr. Noel and his wife. It was stipulated that both would testify that they did not request that the fence be shown on tbe plat, though, it did, in fact, exist; also, that they did not instruct the county surveyor to draw a right-of-way line for TJ. S. Highway 71 or Thompson Street on the plat. The fact remains, as heretofore mentioned, that they did cause the plat to be filed, disposed of all of the property, and, in executing deeds, did so with reference to the plat.

Appellees further argue that the plat contains no dedicatory phrases, and was not signed by the owners. However, it is generally held that this is not essential to a dedication. In Fitzgerald, et ux, v. Smith, et ux, (Cal.) 271 P. 507, the California court held that where an owner of a subdivision of land records a map thereof without reservation, he thereby offers to dedicate streets and roads shown thereon to public use, even though there is no express declaration of dedication in the plat.

. Appellees have made valuable improvements on the 20 feet in litigation, and this is unfortunate, but the plat was on record when they purchased the property, and the deeds received by them had been executed with references to this plat. In Arkansas Fuel Oil Company v. Downs, 205 Ark. 281, 168 S. W. 2d 419, this court cited the rule as follows:

“ ‘The right of the public to use a highway extends to the whole breadth thereof, and not merely to the part which is worked or actually traveled; and consequently, an obstruction upon the untraveled part is a proper subject of complaint by the public or persons specially injured,’ and in American Jurisprudence, Vol. 25, p. 809, § 527, we find this language: ‘Even though the entire width of a highway is not prepared for travel, or although a bridge or culvert does not extend to its entire width, the public rights of passage are not thereby limited in favor of one who places an unauthorized or improper structure within the highway limits * * *’ ”

Title acquired by dedication to the public is an easement, with the fee remaining in the adjacent landowner (Arkansas Fuel Oil Company v. Downs, supra), and we hold that under the plat, there has been a valid dedication to the public of an easement for highway purposes of the 20 foot strip of land in dispute.

The decree is reversed, and the cause remanded for entry of a decree not inconsistent with this opinion.

       Appellees, the purchasers of part of the property involved in this litigation, are Hugh Sherry and Myrtle Sherry, and Kenneth Morris and Drucilla Morris, who were plaintiffs in the court below; also, Carlie Sutherlan, Thelma J. Sutherlan and John S. Glenn, interveners.

       In Gowers v. City of Van Buren, 210 Ark. 776, 197 S. W. 2d 741, we said: “In Paragould v. Lawson, 88 Ark. 478, 115 S. W. 379, this court said: ‘The equitable doctrine of laches cannot be successfully invoked to defeat the right of the city to open the street which was dedicated to that use . . . Nor is the city.estopped, on account of the inaction of its officers for a long period of time, to proceed to open the street . . . Beebe v. Little Rock, 68 Ark. 39, 56 S. W. 69. The owners of lots abutting on the platted street had notice of the dedication, and are presumed to have had knowledge of the city’s legal right to proceed in its own time to open the street. Brewer v. Pine Bluff, supra, (80 Ark. 489, 97 S. W. 1034). They could, therefore, build up no right to continued occupancy of the dedicated strip on account of delay in opening the street to public use,’ and in Little Rock v. Wright, 58 Ark. 142, 23 S. W. 876, it is said: ‘The city had the right to postpone the removal of the obstructions, and the opening of the streets, until such time as its resources permitted, and the public necessities demanded-.’ ”

       For that matter, the fence, which is shown to be 50 feet from the center line of Thompson Street (Springdale), does not extend completely across the east side of tract, but the line that is shown along and through the fence extends to the undisputed southern right-of-way line of the Tontitown road. The fence appears to stop at the southern edge of lot No. 1. Appellants also point out that the right-of-way line of Thompson Street directly connects and rounds off into the right-of-way line of the Tontitown road.


author: Ed. F. McFaddin, Associate Justice.

text:
    Southern Helicopter Service, Inc. v. Jones.
    5-3256
    379 S. W. 2d 10
    Opinion delivered May 18, 1964.

      Cockrill, Laser, McGehee & Sharp and Burl C. Rotenberry, for appellant.

      Tompldns, McKenzie & McRae, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an action for damages resulting from personal injuries sustained by a little girl when struck by the rotor blades of a helicopter. The plaintiffs recovered judgment, and the defendants prosecute this appeal. The plaintiffs are Mary Gen Jones, a little 3-year-old girl, and her father, Arvin E. Jones; and the defendants are Southern Helicopter Service, Inc. and its, employee, William F. Holland, who was the pilot of the helicopter.

Certain downtown merchants, desiring to stimulate business during the Christmas season, arranged to have “Santa Claus” arrive in Little Rock on Saturday morning, November 17, 1962. A helicopter, with “Santa Claus” aboard, was to land in a designated and roped off space on the southwest corner of Allright Parking Lot located between 6th and 7th Streets, and Center and Louisiana Streets, in the City of Little Rock. All-right Parking Lot occupies approximately two-thirds of the city block, the remaining or west third being occupied by the Downtowner Motel. A contract was made with the Southern Helicopter Service, Inc. to fly “Santa Claus” from the Little Rock Airport to the Allright Parking-Lot. Several days prior to the designated date, Mr. Holland went to the parking lot and selected a landing-site approximately 65 feet wide by 100 feet long in the southwest corner, and this space was roped off and policemen were present to keep people outside the landing area.

About ten A.M. on November 17th “Santa Claus” and Mr. Holland flew in a northerly direction over the designated landing place at an altitude of about 300 feet, and circled around for a landing in the designated space. "When Mr. Holland reached the parking lot the second time, he decided that the roped off area next to the Downtowner Motel was too small for landing, and he was then so low that he could not gain sufficient altitude for another circle, so he landed in the southeast corner of the parking lot, being east of the roped off area. Fortunately, no one was injured in this hazardous landing.

Present to see the arrival of “Santa Claus” were a number of children and adults. This crowd had gathered around the roped off area because there was a platform and a loudspeaker, and prizes were to be given away. But when the helicopter landed outside the roped off area, the crowd immediately raced over toward the helicopter to see “Santa Claus.” Mrs. Jones and her daughter, Mary Gen, with other companions, had been on 7th Street, and when they saw the helicopter land in the southeast corner of the parking lot they walked over to the helicopter to see “Santa Claus.” Mrs. Jones had Mary Gen in her arms.

When the helicopter landed Mr. Holland applied the brakes and stopped the rotor blades, but left the engine of the helicopter running, as he intended to resume flight as soon as “Santa Claus” was safely out of the helicopter. Mr. Holland assisted “Santa Claus.” in getting out of the helicopter and beyond the extent of the rotor blades; and by that time people had crowded so closely around the helicopter and under its blades that Mr. Holland saw it would be impossible for him to resume flight. Standing on the ground, he reached into the helicopter and turned off the engine 'switch, and when he did so, the rotor blades moved and Mary Gen Jones, being held up in her mother’s arms, was struck in the face by a rotor blade and seriously injured.

Mary Gen Jones was hospitalized for some time. Mr. Jones sued for the hospital and doctor bills which he paid; and Mary Gen Jones, by her father as next friend, sued for her injuries and damages. The claimed acts of negligence of the defendants were: (a) in landing the helicopter in an unprepared and unguarded section of the parking lot; (b) in failing to rope off the area where the helicopter was landed; (c) in leaving the motor running in the helicopter while “Santa Claus” was being escorted away from it; (d) in failing to warn people in close proximity to the motionless rotor blades that when the engine was cut off the blades might move; and (e) in failing to fully set the brake on the rotor blades. The case was tried to a jury and resulted in a verdict and judgment for Mr. Jones for $301.05 for doctors and hospital bills, and in $10,000.00 to Mary Gren Jones for her damages. From that verdict the appellants bring this appeal claiming errors in the giving of an instruction, in the refusing of instructions, and in the excessiveness of the verdict.

Although the cases involving helicopters and involving persons injured from airplane propellers are not numerous, nevertheless it is well recognized that in the absence of any special statute to a different effect, the general rules governing tort liability and negligence apply broadly in aircraft accident cases, including cases of death or injury arising from, airplane collisions or near collisions, and many of the principles relating to civil liability for motor vehicle accidents, including those as to agency, the measure of care required, and negligence, are equally applicable to civil liability for aircraft accidents. Webster’s Dictionary defines helicopter: “An aircraft whose support in the air is derived solely from the reaction of a stream of air driven downward by one or more lifting rotors turning about substantially vertical axes. ’ ’ The helicopter here involved had one vertical axis to which were attached three rotor blades, each ten feet six inches in length, thus making a circle in excess of 21 feet about the shaft. The three rotor blades were arranged on the shaft so that when the helicopter was at rest one blade was only four feet six inches above the ground, another five feet two inches, and the third five feet eight inches. The questions here in issue do not challenge the general rules of law governing aircraft, but relate only to specific instructions and to tbe amount of damages.

I. Instruction No. 12. Tbe Court gave tbe jury twenty-two instructions wbicb covered nearly every possible phase of law applicable to sucb a case : credibility of witnesses; negligence; contributory negligence; ordinary care; proximate cause; preponderance of tbe evidence ; burden of proof, concurring negligence; measure of damages, etc. Among tbe other instructions the Court gave its Instruction No. 12, as follows:

“You are told that it was tbe duty of tbe pilot of tbe helicopter to exercise ordinary care in tbe operation, landing, and attendance of bis plane to avoid injury to others if danger was apparent or reasonably to be expected. If you find from a preponderance of tbe evidence that danger to others did exist and was reasonably to be expected and further so find that Holland failed with respect to bis duties and that such failure, if any, on bis part, proximately caused the helicopter blade to strike Mary Gen Jones, then yon will find him guilty of negligence which was a proximate cause of the mishap.

In their brief the appellants say of this instruction :

“The Court’s instruction No. 12 furnished the jury absolutely no guides whatever, but truly left the jury to its own devices in determining just what the duties of appellant Holland were with respect to the operation and handling of the helicopter. To charge the jury that the pilot was required to ‘. . . exercise ordinary care in the operation, landing and attention of his plane . . . ’, as the trial court did, simply does not provide the jury with any legal yardstick with which to measure the pilot’s conduct in the context of the issues developed by the evidence. The terms, ‘operation,’ ‘landing,’ and ‘attendance,’ as used in the instruction, are so broad, general, and all encompassing, that the jury might have seized upon any number of real or imagined acts or omissions of the pilot as a basis for its verdict, irrespective of whether same constituted negligence or whether there was substantial evidence to support them.”

We find no inherent error in the instruction; and if the appellants had wanted to pinpoint the instruction to certain actions of the pilot, the appellants could have asked such a specific instruction. These generalized, or so-called ‘ ‘ Mother Hubbard, ’ ’ instructions are erroneous when there is no testimony offered to sustain every allegation of negligence as contained in the complaint. Graysonia Nashville Lumber Co. v. Hopkins, 113 Ark. 598, 168 S. W. 129; Wisconsin & Ark. Lumber Co. v. McCloud, 168 Ark. 352, 270 S. W. 599. But when, as here, there was testimony to support each and every allegation of negligence contained in the complaint, then the defendants should have offered a more definite instruction, if such was desired. No such definite instruction was offered by the defendants and, failing to do so, the-defendants cannot complain. In Queen of Ark. Ins. Co. v. Malone, 111 Ark. 229, 163 S. W. 771, we said: “It is true that the instructions given on this subject were general ones; but as the defendant failed to request correct instructions on the subject, it is in no position to complain because the instructions given by the Court were too general.” In Wallace v. Riales, 218 Ark. 70, 234 S. W. 2d 199, the appellant did not request the court to submit to the jury a specific instruction* and we said: “A party failing to request a definite instruction is in no position to complain that one was not given.” And in Capital Transportation Co. v. Alexander, 219 Ark. 419, 242 S. W. 2d 833, we said: “The issue of contributory negligence had been fully covered by general instructions, and the Court was not required to overemphasize this defense by devoting a separate charge to each act that might be thought to amount to negligence.”

The pilot, Mr. Holland, admitted on the witness stand that the safe procedure would have been to cut off the motor when he landed:

“Q. Well, if you had followed the safe procedure which you have outlined, and to which you have testified, then the motor would have been off; all of the switches would have been turned; the blades could not have turned, is that right?
“A. Yes, sir.
“Q. And that would have ended any question" about trouble, right?
“A. Yes, sir . . .”

The pilot admitted that he knew when he attempted to cut off the motor there might be a surge of power to affect the brake which had stopped the rotor blades; and he admitted that when he landed and pulled up the hand brake on the rotor blades he smelled the burning of the brake bands. All these admissions- — and there were others — were, in themselves, pinpointing of negligence; so we find no reversible error in the giving of Instruction No. 12.

II. Refusal To Give Defendants’ Instructions Nos. 8 and 9. These two refused instructions read:

“Instruction No. 8. You are instructed that you cannot find defendant Holland, pilot of the helicopter, guilty of negligence in landing the helicopter in the parking lot at the point where he did land the helicopter.
“Instruction No. 9. You are instructed you cannot find defendant Holland, pilot of the helicopter, guilty of negligence in failing to land the helicopter in the designated roped off area on the parking lot.”

The appellants’ argument on this point is two-pronged: (1) there was no evidence that it was negligence for the pilot to land where he did; and (2) even if the pilot was negligent in landing where he did, the action of Mrs. Jones in carrying the child under the extended helicopter blades was an intervening efficient cause of negligence which rendered remote the landing-in the wrong place.

As to the first point — negligence in failing to land in the roped off place — the pilot admitted: “A. . . . Anytime that you bring a helicopter in, you are going to have people around it. ’ ’ The fact that the pilot knew people would crowd around the helicopter when it landed, is a good explanation as to why the designated place was roped off, with policemen there to keep the crowd away from a point of danger. So we find no merit in the first prong of the appellants’ argument.

The second prong relates to the action of Mrs. Jones in carrying the child under the helicopter blades as an intervening efficient cause. Of course, any negligence on the part of Mrs. Jones cannot be imputed to the little child. The Court so instructed the jury; and as to that point there is no argument on this appeal. In Instruction No. 18 the Court, in effect, submitted to the jury the question of whether the act of Mrs. Jones was an efficient intervening cause of the injuries received by the little girl. This instruction read:

“You are instructed that even though you may find defendant Holland guilty of a negligent act or negligent conduct, if you further find that at the time of such negligent act or conduct, if any, on his part, plaintiff Mary G-en Jones was in a position of apparent safety and that she was placed in a position of risk, in which position she sustained injury by a negligent act or conduct on the part of her mother, not caused by or contributed to, but independent of any negligent act or conduct on the part of defendant Holland, then you are told that such negligent act or conduct, if any, on the part of defendant Holland would not be a proximate cause of the injuries sustained by Mary G-en Jones. If you so find from a preponderance of the evidence, you will answer ‘No’ to Interrogatory No. 2.”

The Interrogatory No. 2 read:

“Do you find from a preponderance of the evidence that William F. Holland was negligent, and if so, was such negligence a proximate cause of the mishap? This can be answered ‘Yes’ or ‘No’.”

The jury answered the Interrogatory No. 2, “Yes”; so the jury found that Holland’s negligence was the proximate cause of the injuries received by the little girl. In Walton v. Tull, 234 Ark. 882, 356 S. W. 2d 20, we quoted from Hill v. Wilson, 216 Ark. 184, 224 S. W. 2d 797, on this matter of an intervening act of a third person :

“ ‘The fact that an intervening act of a third person is negligent in itself or is done in a negligent manner does not make it a superseding cause of harm to another which the actor’s negligent conduct is a substantial factor in bringing about, if ... a reasonable man knowing the situation existing when the act of the third person was done would not regard it as highly extraordinary that the third person had so acted.’ ”

The pilot admitted that he knew- people were under the helicopter when he reached in to turn off the motor. Some of the people under the blades testified as to having to “duck” to avoid being hit; and one brave police officer grabbed the blades to prevent injury to others. There was evidence sufficient to support the jury’s finding that there was no intervening efficient cause: it was all one continuous procedure; a series of errors, in landing in the wrong place, leaving the helicopter unattended to escort “Santa Claus” away, leaving the motor running, failing to adequately set the rotor brakes, and turning off the motor without getting persons from under the blades. Which was the proximate cause? All of these acts blended together to produce the injury to this little girl; and there was no error in the Court’s refusal to give the appellants’ Instructions Nos. 8 or 9.

III. Excessiveness Of The Verdict. -Finally, the appellants argue that the verdict in favor of Mary Gen Jones for $10,000.00 is grossly excessive; and on this point we see no merit whatsoever. When she was struck she screamed and turned her face to her mother,, blood gushed from her mouth and nose, she was hysterical, and it was thought that she was bleeding to death. She was taken by ambulance to the hospital and given sedatives and a tetanus shot, her nose was stitched and packed. Finally, she recovered sufficiently to be taken to her home in Nevada County; but the doctor who treated her testified that she would always have scars on her nose, which is depressed on the left-side, and that she would always have black circles under her eyes. It was testified that as a result of the injuries she developed a nervousness, like biting her fingernails, which she had never experienced before. Discounting all the pain and suffering, this little girl has a flattening in the middle region of her nose, two scars on her nose, and a permanent discoloration under her eyes. If all this had happened to a little boy it might have been different; but where is the girl who does not want to be a beauty? Where is the little girl who does not aspire to be a Miss Arkansas or a Miss America? This little girl, with these scars and this discoloration, will go through life without the expectation that other little girls have in this regard. We refuse to say that the verdict is excessive.

Affirmed.

George Rose Smith, J., not participating.

        N. Y. Airways, Inc. v. United States, 283 F. 2d 496.

        Cape Charles Flying Service, Inc. v. Nottingham, 187 Va. 444, 47 S. E. 2d 540; Strong v. Chronicle Pub. Co. (Calif.), 93 P. 2d 649; Maryland Cas Co. v. Stewart & Sons (La.), 100 So. 2d 912; Shattuck v. Mullin (Fla.), 115 So. 2d 597. Attention is called to a series of annotations: “Negligence in operation of airplane on takeoff,” 74 A.L.R. 2d 615; “Negligence in operation of airplane in landing,” 74 A.L.R. 2d 628; and “Liability for injury or damage from taxiing aircraft,” 74 A.L.R. 2d 654. See also our case of Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889, 76 A.L.R. 2d 751.

        Wilson v. Colonial Air Transport, 278 Mass. 420, 180 N. E. 212, 83 A.L.R. 329; 8 Am. Jur. 2d, p. 685, “Aviation” § 64; “Aviation Accident Law,” by Charles S. Rhyne, p. 91.

       We copy a portion of the Court’s Instruction No. 1: “Members of the jury, you have followed closely the opening statements and the testimony in this case. Therefore you know what each side claims with respect to the cause or causes of the mishap and as to the alleged injuries. So it will not be necessary for me to recount in detail the respective contentions of the parties because they are revealed by the testimony, and well commented on in the opening statements.
      “Now, with some factual and legal situations in the case the jury is relieved of any responsibility. For example: at the time of the mishap, it is agreed that William F. Holland was in charge of the helicopter, the property of Southern Helicopter Service^ Inc., and was acting within the scope of his employment as its' agent, servant, and employee. This would make Southern Helicopter chargeable with the negligence, if any, committed by Holland.
      “Now, it is not claimed that the infant child was guilty of any negligence. As a matter of law she is too young to be charged with negligence. Any negligence on the part of Mrs. Arvin E. Jones is not chargeable to the father or the child, and would not affect any obligation which might exist on the part of the defendants to reimburse him for his medical expenses or to respond to the child for damages, unless you should find the mother’s negligence, if any, was the sole proximate cause of the mishap. So, the plaintiff’s legal right to recover depends on whether you find the defendant Holland guilty of negligence, if any, which proximately caused the injuries, if any, to the child.
      “Now, in this case, Gentlemen, there are six controverted or disputed questions for your possible consideration, and in a desire to be of assistance to you here are those questions or interrogatories you may be called upon to answer when you retire to deliberate: . . .” (Here followed six specific interrogatories.)

       The defendants’ objection to this instruction was: “Defendants object generally and specifically to Court’s Instruction No. 12 for the reason that it is abstract and misleading and gives the jury no guide or standard on which to base a finding of negligence; does not submit specific acts for the jury’s determination whether the same were negligence, and in effect gives the jury a license to roam at will among the allegations of the complaint and the proof in the case and consider acts as negligent when as a matter of law those acts should not be submitted to the jury for the reason that there is no substantial evidence upon which they could base a finding of negligence in the doing or failure to do those acts, and hence such as to permit the jury to answer an interrogatory finding defendant Holland negligent for an act or acts upon which there is no substantial evidence to base such a finding under circumstances that it would be impossible to determine what act or acts the jury found to be negligent and hence does not restrict the jury to consideration of only those acts upon which there is substantial evidence to submit to the jury the question as to whether same were negligent.”

       The pilot further testified: “Therefore, in the interests of safety is the reason I did that, plus an agreement to take the helicopter out of there once Santa Claus had got out. I didn’t want to stay there, because I’ve seen it happen before. I don’t know what it is, but anytime there is a helicopter down, they say they are not there to look at the helicopter, but the helicopter draws the biggest crowds.
      “Q. But as you testified before, the safe procedure could have been done in approximately one minute.
      “A. I would say not over two minutes.

        “Q. Now, that wasn’t followed; you took Santa Claus out of the plane, walked off and came back?

        “A. Yes, sir.”


author: Paul Ward, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Copeland v. Harness.
    5-3266
    379 S. W. 2d 1
    Opinion delivered May 18, 1964.

      N. J. Henley, for appellant.

      G. Byron Smith, Jr., for appellee.
   Paul Ward, Associate Justice.

This litigation is concerned with the interpretation of the last will and testament of W. B. Harness. The pertinent facts are not in dispute.

Background Facts. Harness died testate on May 12, 1961 seized of 200 acres of land on which he and his wife, Martha, had lived for many years. They had no children but Mr. Harness had several brothers, sisters, nephews and nieces — all of whom are parties herein. Harness ’ will (which was duly probated) in all material parts, reads as follows:

“Third . . . (a) It is my desire, will and direction that my said wife, Martha J. Harness, shall have and enjoy a life’s estate in all the lands of which I die siezed and possessed.
“(b) At the death of my said wife it is my desire that my Nephew, Elmo Harness, shall have and enjoy a life’s estate in said lands, and upon his death his son, Robert James Harness, shall succeed to a life’s estate in my lands.
“(c) Provided, that in the event that either the said Elmo Harness or his son, Robert James Harness shall fail, refuse or neglect to actually live on my lands and should further fail, refuse or neglect to farm and care for same in a careful and husbandlike manner, then, and in that event, it is my will and direction that all of my real estate shall descend to my next of kin then living according to the laws of descent and distribution according to the laws of this state.”

After the death of Martha on June 27, 1962 appellants (33 in number) filed suit on January 17, 1963 contending Elmo had forfeited his life estate by failing to live on and farm the land, and asking that the lands be sold and the proceeds divided among the heirs. The defendants (appellees here) were Sparlin Harness (a brother of the deceased), Elmo Harness (a nephew of the deceased), and Robert (a son of Elmo). Elmo contended he was living on and farming the land as required by the will, and Robert asked (if the court holds Elmo has forfeited his estate) that he be given a chance to live on and farm the land. All parties joined in asking the court to construe the designated portions of the will. At the close of a full hearing the court, in effect, held:

One. At Martha’s death Elmo received a life estate under subsection (b) of the will, and he has substantially complied with the terms of subsection (c).

Two. If, in the future, Elmo fails to comply with subsection (c) Robert will have the right to protect his father’s estate and his own interest.

Three. At Elmo’s death Robert will receive a fee simple title to all the lands.

One. After carefully reviewing the testimony of the several witnesses under the applicable rules for construing wills we cannot say the trial court was wrong on this particular point.

■ Tending to show a forfeiture on Elmo’s part, appellants’ testimony, in substance, showed: Elmo lives in Little Rock, and no farming has been done on the land since June 27, 1962; the fences are in bad shape. Also Elmo was heard to say he and his wife made too much money in Little Rock to leave their home there.

To the contrary, testimony on behalf of appellees was in substance, as hereafter set out. Elmo testified: I took possession of the farm on August 4, 1962 (after Mrs. Harness died on June 27, 1962), and I have done everything I could do to improve the place; I have cut hay, trimmed hedges, and built some gates; I cut and used about fifty posts in fixing tbe fences which were in pretty bad shape; with two exceptions I have been up to the farm every weekend and I consider the farm as much my home as my house in Little Rock. I have plans to farm this land in the future, and put cattle on it — and I have paid the taxes. Elmo’s testimony was corroborated by his wife and several other witnesses.

The rules for construing wills have been stated many times by this Court. They are well stated in Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584, where there appears the following rules:

1. ‘ ‘ ‘ The paramount principle in the construction of wills is that the general intention of the testator, if not in contravention of public policy or some rule of law, shall govern. ’

5. “ ‘Wills are liberally construed, and every legitimate conclusion is indulged in order to reach a just and equitable result. . . and in cases of doubt the construction should be in favor of the first taker because it is against the policy of the law to tie up property . . .’ ”

Applying these rules to the facts in this case and the Avording used by the testator, we think the trial court was correct in concluding the testator did not mean Elmo had to live continually on the land in order to enjoy a life estate. It appears from the record that Elmo has improved the property since he has had it in charge, and that the land is in better condition now than it was when Mr. Harness died. Also, we must assume Mr. Harness Avas aware of the fact that Elmo and his wife, made their living in Little Rock, and it is unreasonable to believe he expected them to give up their jobs and spend all their time on the farm. Moreover, Elmo testified he had certain plans regarding the farm in the future, and it seems only fair that he should be given a reasonable opportunity to perfect those plans. This suit Avas filed only a feAv months after Mrs. Harness died. What Elmo may of may not do in the future is not our concern at this time.

Two. We are unable to agree that Robert can “step in” and enjoy a life estate in the land — by complying with sub-paragraph (c) of the will — when and if Elmo forfeits his life estate. In a sense this question is not before us now because we are holding Elmo has not committed a forfeiture. We do consider the question however in an effort to prevent possible useless litigation in the future. It seems to us that the language in sub-paragraph (c) of the will is plain and unambiguous, and that the intent of the testator is un-mistakable. The language used, stripped of the irrelevant parts, reads: “. . . in the event . . . Elmo Harness . . . should fail, refuse or neglect (etc.) ... it is my will and direction that all my real estate shall descend to my next of kin then living ...” This language, in our opinion, clearly eliminates Robert’s life estate IF and WHEN Elmo forfeits his life estate.

Three. It is our conclusion that the trial court also erred in holding that, upon Elmo’s death, Robert would receive a fee simple title to the 200 acres of land. The principal argument advanced by appellees to support the finding of the trial- court is based on certain language us.ed in the case of Union Trust Company v. Madigan, 183 Ark. 158, 35 S. W. 2d 349. The language referred to (found at page 164 of the Arkansas Reports) reads:

“In construing wills, the general rule is that a gift for life without a limitation over passes a fee in real estate and an absolute interest in personalty, even though words denoting a life estate was intended were used.”'

Applying the above language to the facts in this case appellees very cleverly point out that (under the wording of the will) Robert is given a life estate “without a limitation over” and that, consequently he gets a fee. For several reasons we-are not convinced by this argument.

The above quoted rule is limited by the language which follows in the same paragraph and reads:

“However, a clear gift to one for life, without a limitation over, is held not enlarged to a fee by such •omission, unless a declared purpose is shown to dispose •of all the testator’s estate by will ...”

We find no such “declared purpose” in the will under consideration. In fact, just the opposite is shown, because in sub-paragraph (c) it is expressly provided that the estate ‘ ‘ shall descend . . . according to the laws •of descent and distribution ...” The Madigan opinion was cited in the case of Rufty v. Brantly, 204 Ark. 32, 161 S. W. 2d 11, where the language above discussed was quoted in full, and the Court made the following comment: “This is, of course, a mere rule of construction, to be applied only in the circumstances stated, without the application of which the testator’s intention may not be determined.” We do not think it is necessary to resort to this seldom used rule in order to determine the testator’s intention here. He used essentially the same words in giving Elmo a life estate that he used in giving Eobert a life estate, and yet no one would contend that Elmo got a fee. We believe the testator clearly intended to give Eobert a life estate only. Another circumstance .somewhat supports our belief. Mr. Harness clearly desired his land to remain as long as possible in the name and under the control of someone bearing the name of “Harness”. He knew this desire would more likely be fufilled if Eobert took a life estate. On the other hand, he knew that, if Eobert took a fee, he could dispose of the land at any time he pleased.

It is our conclusion, therefore, that the decree of the trial court should be, and it is hereby, affirmed in part . and reversed in part as heretofore indicated.

McFaddin, George Eose Smith, and Eobinson, JJ., ■dissent in part.

Ed. F. McFaddin, Associate Justice

(dissenting in part). I agree with all of the Majority Opinion except that part which says that Eobert would lose his life estate if Elmo’s life estate should be forfeited.

As I read the will, bearing in mind the rules of construction stated in such cases as Cross v. Manning, 211 Ark. 803, 202 S. W. 2d 584, and Thompson v. Ark. Natl. Bank, 220 Ark. 802, 249 S. W. 2d 958, I reach these conclusions: that if Elmo’s life estate should be forfeited, then Robert’s life estate would come into existence just the same as it would on Elmo’s death; and that on the death of Robert, or the forfeiture of his life estate, descent would then be cast to the heirs, at law of.W. B. Harness.

George Rose Smith and Robinson, JJ., join in this dissent.