author: Paul Wakd, Associate Justice. Ed. F. MoF addin, Associate Justice,

text:
    Loe v. Hope Oil & Gas Co., Inc.
    5-1853
    328 S. W. 2d 74
    Opinion Delivered September 14, 1959.
    [Rehearing denied November 2, 1959]

      McKay, Anderson £ Grumpier, for appellant.

      Weisenberger £ Wilson, Graves £ Graves, for appellee.
   Paul Wakd, Associate Justice.

On this appeal we are called upon to decide the merits of several conflicting claims growing out of an oil and gas lease on forty acres of land in Lafayette County. A skeleton outline of the factual background will help to understand the issues hereafter discussed.

Prior to November 27, 1954, the Hope Oil and Gas Company, Inc. (hereafter referred to as “Hope”) was the owner of an oil and gas lease on the land in question and on which land there was a producing oil well.

On the above named date Hope executed an assignment of said lease to one A1 Johnson. The assignment appears to be absolute on its face but it is contended by some of the parties, including Hope, that said assignment was, in fact, an equitable mortgage. The assignment was filed for record December 1, 1954.

In September of 1955, Hope executed an assignment to each of several persons. These combined assignments conveyed 8/12ths of 7/8ths royalty interest on the land in question. All of these assignees will hereafter be referred to as the “Overtons.” Some of the assignments were filed as early as September 27, 1955.

On October 22, 1955, Johnson executed to Bert Loe and Glen D. Loe, appellants herein, an assignment conveying to them a $12,000.00 oil payment for which the Loes paid Johnson the sum of $6,000.00. The said $12,000.00 oil payment was to be paid at the rate of $200.00 per month out of the working interest of the production from the land in question. The assignment further provided that the oil payment was not a personal obligation of Johnson and that the monthly payments would be made out of the first oil produced, saved and sold without cost or expense to the Loes, but Johnson warrants to defend the title in that he has the right and authority to make the conveyance. It also further provided that the oil payments were secured by a lien on the personal property, equipment and fixtures now on and which may hereafter be placed on said premises.

On October 28, 1955, Johnson executed an assignment to Hope conveying back to Hope the same oil and gas lease first mentioned above, SUBJECT, HOWEVER, to the said $12,000.00 oil payment in favor of the Loes. Also in this assignment back to Hope, Johnson excepted l/16th of 7/8ths interest in favor of his wife and Wilmot McCain.

It should be noted that Hope’s oil and gas lease and also all of the other assignments mentioned above are subject to a l/16tbi of 7/8ths overriding royalty interest owned by the Carter Oil Company and the same interest owned by L. J. Peters, which interests were created some years previously and are not involved in this lawsuit.

On January 24, 1956, Hope filed in Chancery Court a petition against Johnson and the Loes to remove certain clouds from his title.

(a) It was alleged that the assignment to Johnson referred to above was, in fact, an equitable mortgage, that it was given to secure a debt which he owed to Johnson in the amount of $7,500.00; that said amount had been re-paid to Johnson; and that, therefore, said assignment was now null and void.

(b) It was alleged that Johnson had no right or authority to assign the $12,000.00 oil payment to the Loes and that said assignment should be removed as a cloud on his title.

(c) It was further alleged that Johnson, in assigning the lease back to Hope, had no right to reserve the l/16th of 7/8ths of the oil and gas lease in favor of Johnson’s wife and "Wilmot McCain but that same should be declared null and void. The prayer was in accordance with the above allegations.

Johnson, by his attorneys, answered the above petition stating:

(a) That Hope, by accepting the assignment from him on October 28, 1955, also accepted the provision which gave the $12,000.00 oil payment to the Loes, and that Hope is now estopped from denying the same.

(b) Further answering, Johnson says that if Hope refuses the claim under the above assignment that he is barred by the statute of frauds.

The Loes, represented by the same attorneys who represent Johnson, in their answer made the same claims as made by Johnson. The Loes further alleged that at the time they took the assignment of the $12,000.00 oil payment they had no actual or constructive knowledge of the dealings between Hope and Johnson, and were, therefore, bona fide purchasers for value. By the way of cross complaint the Loes alleged that no money had been paid to them as required by the terms of the $12,-000.00 oil payment; that they are entitled to a judgment against the leasehold interest for all money due them; and that if said money is not paid within thirty days a receiver be appointed to operate said leasehold interest and to distribute the money.

Hope, in an amended complaint, stated that if the Loes’ oil payments are found to be valid, then they ask judgment for $12,000.00 against Johnson or for damages against him because of non-operation of the oil well since 1955. Also, Hope, in replying to Loes’ answer, stated that it had no knowledge of the assignment of the $12,000.00 oil payment to the Loes; and that while it accepted the assignment from Johnson it does not recognize the assignment of the oil payment to the Loes.

The Loes filed an amended and substituted cross complaint bringing the Overtons into the litigation, alleging that their rights under the oil payment assignment were superior to the rights of the Overtons.

The Overtons entered a general denial, asserting that the assignment of Hope to Johnson was, in fact, a mortgage; that there was no consideration for the assignment of the $12,000.00 oil payment to the Loes; that the reservation of the l/16th of the 7/8ths interest to Mrs. Johnson and Wilmot McCain is void; and that the Loes and Hope are estopped from asserting any claim prior to theirs. By the way of cross complaint, the Overtons alleged that they are entitled to recover from Johnson the $8,000.00 which they paid for their assignments in the event said assignment is held to be void.

The trial court, after stating the facts, many of which have been set out above and after sustaining Loes’ demurrer to Hope’s complaint, decreed as follows:

(a) Hope’s complaint and the amendments thereto and Loes’ cross complaint and the amendments thereto are dismissed for the wart of equity;

(b) Tbe assignment of tbe oil payment from Johnson to the Loes is cancelled and set aside;

(c) The assignment from Johnson to Hope, dated October 28, 1955, is reformed so as to exclude any reference to and reservation of the said $12,000.00 oil payment;

(d) The Overtons’ title to 8/12th of 7/8ths working interest in said oil and gas lease together with all personal property, used or obtained in connection therewith, is quieted and confirmed in them (setting forth the interest of each individual as assignee), and said Overtons shall receive their interest'in the production from the SW1/^, SW%, NE% of said Section 13, cost free, until they have recovered the sum of $8,000.00. It appears also that the Overtons are granted a lien on the interest of Hope in said leasehold and personal property to guarantee the payment of the said sum of $8,000.00, and if Hope shall not begin operating said lease within sixty days and continue to operate it until the Overtons have received therefrom, free of cost, the sum of $8,000.00, then they may foreclose said lien on the interest of Hope.

(e) The l/32nd of 7/8ths overriding royalty interest reserved to Wilmot McCain and the same interest reserved to Mrs. Johnson is quieted and confirmed in them;

(f) The balance of the leasehold (except the overriding royalty interest of the Carter Oil Company and L. J. Peters, aforementioned) is quieted and confirmed in Hope.

After a careful consideration of the entire matter, we have concluded that the basic question to be decided is whether appellants, the Loes, are innocent purchasers for value, and we have reached the further conclusion that the record before us shows them to be such. The findings of the trial judge show that he had a full and accurate grasp of the complicated factual situation and we agree with him on many of the conclusions which he reached therein. Most of these conclusions, however, were based on his determination of the basic question mentioned above, and that is where we think he fell into error.

In the court’s findings, reference is made to a letter which Johnson wrote on October 10, 1955, to the Over-tons (actually it was written to their agent, Henson) wherein, among other things, he stated: “The deal has gone through. In fact Mr. Davis has paid me for it and you will have possession as of the first of this month together with all the oil it is now making.”

Following this the trial court found: ‘ ‘ The defendant, A1 Johnson, and his grantees, the Loes, are bound by said letter, and the sale to the Overtons, defendants, and to the plaintiff, Hope Oil and Gas Company, Inc., was paid for and consummated before the purported assignment of the oil payment to the defendants, Bert and Glen D. Loe; ’ ’.

In two respects we think the court was in error. First, we find that the assignment from Johnson to Hope was not consummated before the assignment of the oil payment to appellants. The record reflects that the former assignment was made October 28, 1955, while the latter assignment was made October 22, 1955. Secondly, while we agree that Johnson was bound by his letter, we do not agree it follows that appellants were bound by the letter, which, of course, was not a matter of record. That brings us now to a consideration of the principal or basic legal question involved, that is: Were appellants innocent purchasers for value?

Since the record reflects that Hope (the common source of title) assigned to Johnson and that Johnson assigned to appellants, and since it also reflects that appellants paid $6,000.00 for their assignment, it follows that appellants are innocent purchasers for value, unless (a) they had actual notice or (b) constructive notice of the previous assignment and reservations made by Johnson.

(a) We find nothing in the record which would justify us in holding that appellants had actual notice. In fact, there is nothing more than a suspicion that such was the case. It is not significant that appellants paid only $6,000 for the $12,000 oil payment, because its true value depended largely on the success of an oil well which is usually a matter of speculation. Moreover, the burden to establish such notice was on Hope and the Overtons. See White v. Moffett, 108 Ark. 490, 158 S. W. 505, where the court, at Page 197 of the Arkansas Report, quoted: “ ‘"When a party relies upon the defense of being a bona ficle purchaser and shows that he has paid a valuable consideration, the burden of showing that he purchased with notice is upon the party alleging it or who relies on the notice to defeat the claim of the bona fide purchaser.’ ”

(b) After a careful search of the authorities, in the light of the facts disclosed by the record here, we are driven to the conclusion that appellants did not have constructive notice of said assignment.

Hope and the Overtons forcefully call our attention to the facts that after Hope assigned to Johnson (while the record title was still in Johnson) it executed an assignment to the Overtons for which, they paid $8,000 and further, that this was done with full knowledge and cooperation on the part of Johnson. Then, they rely strongly on the case of Vaughan v. Dossett, 219 Ark. 505, 243 S. W. 2d 565, (together with other authorities) for the proposition that appellants had constructive notice of the Overtons’ assignment (which was of record), and that they are estopped because Johnson was (concededly) estopped. We do not agree, however, that the Vaughan case of any other citation offered sustains that view.

Although there are some isolated statements in the Vaughan case which appear to sustain appellees contention, we think a brief review of the essential facts in that case clearly indicate otherwise. Hoekett was the common source of title from which Vaughan and Dossett each claimed; Hoekett executed a deed August 5, 1955, to one Deloach which was never recorded, and on the same day Deloach gave Hoekett a deed of trust securing the purchase price which was recorded; on December 28, 1936, Hockett, with Deloach’s consent, deeded to one Carter who knew all the above facts; on November 14, 1946, Deloach quitclaimed to Vaughan; the next year Carter deeded to Dossett. This court held that Dossett’s title prevailed over Vaughan’s title although he received his deed before Dossett did. It appears to us that the essence of the decision is that when Dossett received his deed he was not charged with constructive notice of the deed from Deloach to Vaughan because it was not in his chain of title and conversely that Vaughan was charged with Hockett’s deed to Carter because it was in his chain of title. The language in the opinion concerning estoppel was in reference to Vaughan and Deloach. Relating the facts of that case to those in the case under consideration, the Overtons stand in the position of Vaughan and appellants stand in the position of Dossett.

We cannot agree with appellees’ contention that the assignment from Hope to Overtons was in the line of appellants’ title and that it was constructive notice to them. The reason we do not agree is that Hope had already conveyed to Johnson when it conveyed to the Overtons, hence, their assignment was not in the line of appellants’ title nor was it constructive notice to appellants. The law which we think applies in this situation is clearly stated in 92 C.J.S. at Page 260 where it is stated: “A purchaser is required to search the records as against each prior owner of the property only for the time such prior owner had the title.” The same principle is stated in different phraseology in 55 Am. Jur. at Page 1085 where it is said: “Moreover, to require a purchaser to take notice of a prior deed or recitals therein, the deed must lie in the chain of title; that is, it must be such that if the title deed to support the grantors’ title were produced it would disclose the deed in question.”

Since we have concluded that appellants had no actual or constructive notice of any of the prior conveyances of Hope or Johnson, and since they paid a valuable consideration for their oil payment, it follows that the cause must be reversed. Due to the fact that the interests of several parties are involved and since it is important to all parties that the oil well be kept in operation, perhaps nnder the direction of the conrt, it is deemed advisable to remand the canse for farther orders of the trial coart. Also, in order to assist the trial coart in its farther orders and to avoid farther annecessary litigation we give it the benefit of these farther findings and directions.

(a) For the same reasons that appellants prevail over the Overtons in priority they will also prevail over Eaby Cobb Johnson and Wilmot McCain in respect to their assignment from Johnson.

(b) As between the Eaby Cobb Johnson and Wilmot McCain assignment of a l/16th interest they will be given preference over the Overtons becaase it appears to as that the Overtons had a mach better opportanity to protect themselves than the said Johnson and McCain had. The Overtons knew when they took the assignment from Hope that it did not have the record title bat that it was in Johnson. On the other hand there is no showing that said Johnson and McCain had any reason to think their assignment or reservation was not good.

(c) The Overtons are entitled to jndgment against Johnson in the amoant of $5,000.00 which he received from them throagh Hope. Whatever money they receive from the oil rans, sabject to the rights of appellants and said Johnson and McCain, shall be applied as a credit on sach jndgment.

(d) Hope is not entitled to any interests from the proceeds in the lease antil all other claims mentioned above, inclading the $8,000.00 paid oat by the Overtons, have been fnlly paid.

We have not andertaken to decide if Hope is entitled to a jndgment against Johnson as prayed for, bat are leaving that matter for the farther consideration and determination by the trial coart. We are doing this for the reason that the record does not appear to be safficiently developed for as to make a fall determination, particularly in respect to the amoant of the award, if any is made.

We deem it unnecessary to discuss other issues raised by the parties except to say that Hope, by further participation in the trial, waived its right to stand on its exception to the action of the trial court in overruling appellants’ demurrer to its testimony.

Therefore, the decree of the trial court is reversed and the cause is remanded for further proceeding consistent with this opinion.

Harris, C. J., MoF addin J., and Robinson, J., dissent.

Ed. F. MoF addin, Associate Justice,

(Dissenting). The point to which I direct my dissent is the decision of the majority to allow the Loes to prevail over the Overtons. I am convinced that all of the equities are in favor of the Overtons. Their assignments were prior, both in time of execution and in time of recording, to the Loe assignments; and the Loes had notice of facts and circumstances which put them on inquiry, and they are bound by all the knowledge that such a reasonable inquiry would have disclosed. We have a long line of cases in Arkansas so stating such rule. See Bland v. Fleeman, 58 Ark. 84, 23 S. W. 4; Waller v. Dansby, 145 Ark. 306, 224 S. W. 615; Jordan v. Bank of Morrilton, 168 Ark. 117, 269 S. W. 53; and Richards v. Billingslea, 170 Ark. 1100, 282 S. W. 985.

Glen Loe was the only one of the Loes who testified. He said Johnson came to him in need of cash and offered to sell a $12,000 oil assignment for $6,000. Johnson had the assignment with him. Here is the record:

“Q. Who drew this assignment?
A. I don’t know, sir.
Q. Did he just show up with an assignment there to you?
A. Yes, sir.
Q. And said ‘I want $6,000 for this’?
A. Yes, sir.
Q. And you had never seen it or heard of it before ?
A. I had heard of it, yes, sir.
Q. When did you hear of it ?
A. Oh, probably that morning.
Q.....Anyhow you heard of it that morning and closed it during the day?
A. Yes.'
Q. Without any effort to determine whether it was good?
A. Well, he told me that he had an oil payment for $12,000 and he would take $6,000 for it, and I had seen the equipment on his well, and I thought it was worth $6,000. And I didn’t see how I could lose, because he incorporated the lien on it.
Q. You say you have known Mr. Johnson a long time?
A. Yes, sir.
Q. If you had come up to Lewisville or had your attorney come up here and check the record, he would have found these assignments to the Over-ton defendants which had been on record for over a month when you paid out this money or first heard of the deal?
A. I wouldn’t know; I haven’t checked the records till yet.
Q. You don’t know yet?
A. No, sir.
Q. But if they were recorded in September you would have found them, wouldn’t you?
A. If I had been looking for them I probably would.
Q. Or if your attorneys had been looking for them?
A. Yes, sir.
Q. Do you have an attorney ?
A. Sure I have an attorney.
Q. Who?
A. Herrott and Ritchey.
Q. They are available to you at any time ?
A. Yes, sir, they get $200 a month for looking after my business; I hope they are available.
Q. You expect them to ?
A. Yes, sir.”

When we look at the $12,000 oil assignment from J ohnson to Loe, we see that the instrument which Loe took specifically stated, “It is understood that the payment of no part of said $12,000 is a personal obligation of the assignor herein but that said sum shall be due and payable to the said Bert and/or Glen I). Loe only out of 7/8ths of the first oil produced, saved, and sold ”. I maintain that when a man comes in with an instrument already prepared reading like the foregoing and offers to sell $12,000 worth of oil for $6,000, the purchaser is put on notice that there is something’ “fishy” about the deal. In the normal course of business a man just does not sell $12,000 for $6,000. The very way in which the transaction was handled between J ohnson and Loe was sufficient to put Loe on notice, and Loe has himself admitted that if he had pursued such notice he would have learned of the Overton assignments.

Under these facts and circumstances, I cannot see how the majority can overrule the Chancellor’s finding of facts. He is what the Chancery Court found as regards the Loe assignment:

“. . . . that the said assignment above described from A1 Johnson and wife to the Loes is null and void and should be cancelled and held for naught, and that all reference to, and the reservation of, said oil payment ... is invalid.... and said assignment should be reformed to exclude any reference to said oil payment .... ”

The Chancellor saw the people who testified. Glen Loe and J ohnson were the only two people who testified as to the good faith of the Loes. They were both interested parties and their testimony stands contradicted as a matter of law. The Chancery finding, as previously copied, shows the Chancellor’s reaction. I maintain that when Glen Loe made the admissions and testified as he did the Court was justified in believing that he shut his eyes to material facts of which he had notice. The Trial Court was justified in holding that the equities were in favor of the Overtons; and the Chancery decree should be affirmed.


source: Caselaw Access Project

author: Sam Robinson, Associate Justice.

license: Public Domain

text:
    Malvern Brick & Tile Co. v. Lowery.
    5-1883
    327 S. W. 2d 87
    Opinion Delivered September 14, 1959.
    Workmen’s compensation — injury in course of employment, weight and sufficiency of evidence. — Commission’s finding, that claimant’s loss of sight in one eye was caused by injuries suffered in the due course of his employment, held substantiated by the evidence.

      Wooten, Land & Mattheivs, for appellant.

      James G. Cole, for appellee.
   Sam Robinson, Associate Justice.

This is a Workmen’s Compensation case. Appellee, Arvel Lowery, an employee of the Malvern Brick & Tile Company, lost the sight of an eye. The Workmen’s Compensation Commission awarded compensation, the circuit court affirmed the award, and the Brick Company has appealed.

There is no controversy about Lowery’s having lost the sight of one eye. The only issue is whether there is any substantial evidence that such loss of sight was caused by injuries suffered by Lowery in the due course of his employment. Of course, if there is such evidence, according to many decisions of this Court, the judgment must be affirmed.

Lowery went to work for the Brick Company in September, 1954. At that time he was examined by a doctor for the company. Nothing was found to be wrong with Lowery’s eyes. The preponderance of the evidence shows that in May, 1955, while on the job he was struck in the eye with a large clod of dirt, and although he did not at that time require the services of a doctor, he did receive first aid and as a result of the injury he was off from work for about a day and a half. The preponderance of the evidence also shows that on May 1, 1956, while on the job, and while operating a cutting torch, he got two pieces of hot metal in his eye. At this time a doctor removed the metal from the eye. On June 22nd, after having got the metal in his eye on May 1st, he complained of not being able to see out of the injured eye. The appellant sent him to Dr. James L. Smith, an eye specialist in Little Rock. Dr. Smith determined that Lowery had lost the sight of the eye. Later, in connection with the claim for compensation by Lowery, Dr. Smith testified that in his opinion the loss of sight was due to an injury, but that the injury occurred a long time prior to May, 1955, when, according to the evidence, claimant was struck in the eye with the clod of dirt while at work. Dr. Smith stated his reasons supporting his opinion, but the Commission did not.accept that theory. Lowery testified positively while at work in May, 1955, he was struck in the eye with a clod of dirt. He named the time and place and pointed out an employee of appellant sitting in the courtroom as the person who threw the clod.

Apparently there is no serious dispute about his having got two pieces of hot metal in his eye while at work on May 1, 1956. On June 22, 1956, he complained for the first time of not being able to see out of the eye, and he testified that he had been unable to see out of his eye since that date.

Taking all the evidence into consideration, we cannot say there is no substantial evidence to support the finding that Lowery lost the sight of his eye from an injury received in due course of employment.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Woods v. Pearce.
    5-1896
    327 S. W. 2d 377
    Opinion delivered September 21, 1959.

      McMillen, Teague <& Coates, by: Eugene F. Mooney, Jr., for appellant.

      Odell Pollard,, for appellee.
   Carleton Harris, Chief Justice.

This is an appeal from a judgment entered in the White Circuit Court against appellants in a personal injury and property damage action, arising from a collision between appellants’ truck and appellee’s automobile, occurring on highway No. 67 in White County on the morning of November 10, 1957. Appellee, Quenten C. Pearce, accompanied by his eight year old son, Randy, was driving south on the highway, and about three miles from Bradford, started to execute a left turn into a dirt road which crosses the highway at that point. Appellants’ truck, driven by R. W. Plerry, which had been following behind the automobile, in endeavoring to pass, collided with the car, the extreme left front of the truck striking the right rear of appellee’s vehicle. The car was damaged, appellee suffered some injuries, and Randy received a broken leg. Complaint was subsequently filed, seeking $1,465 for damages to the automobile, $2,500 for injuries sustained by Pearce, and $15,000 for injuries sustained by the child. Appellants denied liability, alleging that the collision and injuries resulting therefrom were “solely and directly caused and contributed to” by the negligence of appellee, in that “the plaintiff carelessly, negligently, and without giving any signal of any kind, began to angle his car across the center line of the highway to the left. Defendant Plerry gave loud and continuously warning by his horn but plaintiff Pearce carelessly and negligently continued to angle left across highway and failed to yield the right-of-way to the overtaking vehicle on audible signal, as required by § 75-609, Ark. Rev. Stats. * * *” On trial, the jury found that Plerry was guilty of negligence which proximately caused the injuries, and that Pearce was guilty of contributory negligence in a percentile of 25%. They found that Pearce suffered $1,800 damages, and his son $7,500 damages. Judgment was accordingly entered for a total of $8,850, apportioned $1,350 to Quenten C. Pearce and $7,500 to Pearce as father and next friend of Randy Pearce. In seeking a reversal, appellants rely on three points, as follows:

“I.
Giving Plaintiff’s Instruction Number Pive Was Reversible Error Because It Is A Binding Instruction and Inherently Erroneous.
II.
It Was Prejudicial and Reversible Error to Admit the Opinion Testimony of the Policeman as to the Course and Location of the Truck at the Point of Impact.
III.
The Verdict was Grossly Excessive and Should be Beduced or Set Aside Because Not Supported by the Evidence and Fixed Through Jury Prejudice.”

We proceed to a discussion of each point.

I.

Flerry and Pearce gave conflicting versions of the manner in which the collision occurred. Pearce testified that he saw the truck from his rear view mirror before making the left hand turn. He testified that Flerry was in the right hand lane at all times, and that he (Pearce) had turned on his left blinker light about 150 yards before reaching the turning point. To the contrary, Flerry testified that he was in the act of passing, and was already even with the left rear fender of appellee’s automobile at the time the turn was started, and further, that he sounded his horn before starting to pass; that he saw no signal for a left turn, and was only 12 or 15 feet behind Pearce, and entirely in the left hand lane, when the brake light of the automobile came on. The instruction complained of reads as follows:

“You are instructed that if you find from a preponderance of the evidence that the plaintiff gave a proper signal for a left hand turn for the last 100 feet prior to entering the intersection and you further find from a preponderance of the evidence that defendant, B. W. Flerry, was not then in the act of passing plaintiff, then you are instructed that plaintiff had the right-of-way and that defendant was under a duty to yield the right-of-way to plaintiff.”

Appellants contend that this was a binding instruction, and inherently erroneous. We do not agree. The proof showed that the highway, at the point where the collision took place, was a straight, level highway, and there was no traffic approaching from the opposite direction; nor was there traffic on the dirt road which crossed the highway at the point of collision. It is also undisputed that the weather was clear. Since these matters were not in controversy, it was unnecessary to include in the instruction any reference to other traffic. Specifically, appellants complain that the instruction ignored the statutory requirement that the turn be attempted only if it could be made with reasonable safety. They contend the instruction “binds” the jury to return a verdict based only on that particular instruction, and disregards other factors which could have occasioned the collision.

Black’s Law Dictionary (4th Edition) defines a binding instruction as ‘ ‘ one in which jury is told if they find certain conditions to be true to find for plaintiff or defendant as case might be.” In our own case of Reynolds v. Ashabranner, 212 Ark. 718, 207 S. W. 2d 304, we defined a binding instruction as ‘ ‘ one which tells the jury that, if only the conditions stated in that one instruction are found to exist, then the jury will determine the case. In other words, the instruction in effect ‘binds’ the jury to return a verdict based only on such instruction.” While a binding instruction is generally concluded with the phrase “you will find for the plaintiff” or “for the defendant,” we concur with counsel for appellants that the mere absence of the phrase itself does not necessarily keep an instruction from being binding. We are of the opinion that this instruction is awkwardly worded, but we do not agree that it is either binding or erroneous. The instruction states the law as to right-of-way, but there is nothing in the instruction which says that the failicre to yield the right-of-way ipso facto establishes defendant’s liability, or that such act was negligence per se. The failure to yield the right-of-way (if found to be true) was only a circumstance to be considered in determining whether appellants’ driver was negligent. The jury was not foreclosed, by this single instruction, from examining all the facts and circumstances, and it is apparent from the verdict that it did examine all the circumstances. Among other instructions, the court instructed the jury that “no person shall turn a vehicle from a direct course upon a highway unless and until such movement can be made with reasonable safety * * #,” and the first instruction given was “you are not to single out any one of these instructions and consider it alone, but you are to take them all together, and consider them all together, as one harmonious whole, and as the law in this case.” The fact that appellee was found guilty of contributory negligence in a percentile of 25% clearly proves that additional instructions were considered. While surmising as to a jury’s reasoning is always speculative, it would certainly appear from the verdict that the jury found the signal was given by appellee more than 100 feet before reaching the intersection, at a time when Flerry was not attempting to pass, and further, that Flerry negligently attempted to go around appellee before the intersection was reached, but that appellee, in making the turn, was also negligent to a degree, in failing to ascertain that the truck had approached so closely behind him. Be that as it may, the jury obviously gave consideration to appellants’ version of the manner in which the collision took place. We are unable to agree with counsel that the giving of Instruction No. 5 constituted reversible error.

II.

G-erald Harris, a state policeman, who investigated the collision, told the jury where he found the vehicles located after the occurrence, described the damage to the automobile and truck, and testified there were no skid marks. He then, without objection, gave his opinion, from the physical facts, as to where the impact took place. Following Flerry’s testimony, Harris was called back for re-examination, and was asked:

“Q. You have just heard Mr. Flerry’s testimony to the effect that the impact, at the time of the impact, he too agreed that the Pearce vehicle was leaving the highway at somewhat of a 45 degree angle, but that his vehicle, instead of being straight down the highway as it is drawn there, that he was in the passing lane and was cutting back into the south bound lane; did you hear or understand him to so testify?
A. Yes, sir.
Q. In your opinion, Mr. Harris, had the truck have been coming from the passing lane at an angle over into the south bound lane at the exact instant of the impact, and leave the car at the same angle you stated it was, what effect would that change of the angle of the wreck have had on the path the car would have followed?
Counsel for appellants: I object to that for the reason that it does not describe the angle Mr. Plerry said he was traveling.
The Court: The objection is overruled. ’ ’

Appellants say that this testimony had the effect of permitting Harris to give his opinion on the truthfulness of Plerry’s testimony, and that this was highly improper and prejudicial. It is not necessary for us to consider this assertion, since no objection was made on that basis. The sole objection was simply that the question did not accurately state Plerry’s testimony. As long ago as 1898, this Court, in the case of Kahn v. Lucchesi, 65 Ark. 371, said:

“But the making of the objection specified had the effect of waiving all other objections, and hence there was no error in not' rejecting the evidence on other grounds not specified in the objection made.”

See also Cooper v. Chapman, 226 Ark. 331, 289 S. W. 2d 686, which, as here, dealt with the sufficiency of the objection to certain evidence given by a state policeman.

III.

It is finally urged that the judgment given appellee as father and next friend of Randy Pearce in the amount of $7,500 was excessive. The evidence reflects that Randy suffered a great deal of pain, and the medical evidence was to the effect that a fracture, of the nature involved, is extremely painful. Medical expenses for the hoy amounted to $740; he spent two weeks in the hospital, four months in bed with a cast on his leg, and there was evidence that he was unable to place full weight on his leg until over nine months after the injury was sustained. The testimony reflected that a six or seven inch incision was made, and the bone put back in place, after which a metal plate was placed over the bone, by means of inserting four screws into the latter, which was for the purpose of holding the bone in place. It was the opinion of Dr. M. C. Hawkins, Jr., that the plate would have to be removed at some time in the future, and the Doctor testified that this would require hospitalization for a period of a week or ten days, and the boy would probably be inactive for an additional three weeks; the expense of such operation was estimated at $300 to $350. Though it appears there is no permanent injury, in view of the facts outlined in this paragraph, we are unable to say that the verdict is excessive.

Finding no reversible error, the judgment is affirmed.


author: J. Seaborn Holt, Associate Justice. Ed. F. McF addin, Associate Justice,

text:
    Mo. Pacific Rd. Co. v. Emberton.
    5-1890
    327 S. W. 2d 726
    Opinion Delivered September 21, 1959.
    [Rehearing denied October 26, 1957]

      Pat MeHaffy, B. S. Ciarle, for appellant.

      Tom Gentry & William M. Dabbs, Jr., for appellee.
   J. Seaborn Holt, Associate Justice.

Appellee sued appellant railroad company to recover damages resulting when one of appellant’s freight trains struck an automobile driven by-C. C. Bell (her then husband) at its street crossing in the city of Pine Bluff. A jury trial resulted in a verdict in favor of appellee for substantial damages and from the judgment is this appeal. For reversal appellant cites five alleged errors as follows: “(1) The Defendant’s Motion for a Directed Verdict Should Have Been Granted. (2) The Court Erred in Allowing Counsel to Argue Existence of Warning Devices at Other Crossings. (3) The Court erred in Not Declaring a Mistrial because Plaintiff Injected Insurance Coverage. (4) The Court Erred in Giving Plaintiff’s Instructions Nos. 1, 3 and 6. (5) The Court Erred in Not Granting Defendant’s Motion To Set Aside The Verdict and Dismiss.”

After a careful review of the record presented, we have reached the conclusion that the trial court erred as alleged by appellant in allowing Mr. Gentry, appellee’s attorney, to argue to the jury the existence of certain warning devices at the Cotton Belt railroad crossing at 3rd and State Streets, a block away from the 4th Street crossing here, after the court had refused to allow him to introduce in evidence photographs showing the condition of the Cotton Belt crossing and the existence of certain warning devices thereon. But for this error we would affirm since we find no other error.

Appellee based her suit on the following alleged acts of negligence on the part of the appellant railroad: failure to keep a proper lookout, failure to blow the whistle or ring the bell, operating the train at an excessive and unlawful rate of speed, and failure to provide a “signal device operated mechanically or otherwise at the crossing of 4th and State Streets to identify said crossing, or warn the deceased or others using the street, of an approaching train.” The record shows, as indicated, that Mr. Gentry offered in evidence certain pictures of the 3rd Street, or Cotton Belt crossing, which was one block distant from the Missouri Pacific crossing in question at 4th and State Streets. On appellant’s objection to their introduction for any purpose, the trial court properly sustained appellant’s objection and the pictures were not introduced. Appellee’s purpose in offering these pictures in evidence was stated in chambers by Mr. Gentry, outside of the presence and hearing of the jury, in this language: “I desire to introduce the photographs of the intersection of 3rd and State, which has been or will be identified as a crossing similar to the one at 4th and State and that the traffic is approximately the same at 3rd and State as at 4th and State. I desire to introduce the photograph because the photograph reflects that the Cotton Belt Railroad, whose tracks pass the intersection of 3rd and State, has constructed flashing lights, and flashing stop signs and railroad crossing signs and a gong to warn motorists passing over their tracks at 3rd and State that there is a train coming and it is dangerous to cross the intersection. It will be developed that these signals are automatic and my purpose of introducing this is to show that in contrast with what the Missouri Pacific Railroad Company, the defendant in this case, has done at 4th and State, not even showing by a simple cross-arm that there is a railroad crossing there, that an ordinary prudent person acting under like and similar circumstances would have placed gongs and warning devices and other mechanical means of warning motorists on this heavily traveled street in Pine Bluff that a train is approaching.”

It appears to us that Mr. Gentry’s obvious purpose of showing the similarity of the two crossings was that since the Cotton Belt had seen fit to install signal lights and warning devices at its crossing, that this was evidence of negligence on the part of appellant, Missouri Pacific, for failure to do the same. The record shows that although the court properly excluded these pictures in evidence, it allowed Mr. Gentry, over appellant’s objection, to argue to the jury the evidence that these pictures so graphically portrayed.

The record also shows that while Mr. Gentry was making his closing argument the following took place: MR. GENTRY: “Don’t you think they ought to put a $2.00 sign down there when at least, in other words, they ought to do just like the Cotton Belt has done down here on Third, (interrupted) MR. CLARK: Tour Honor, I object to that. MR. GENTRY: Put a gong and lights and stop signs to give warning to those people, (interrupted) MR. CLARK: Mr. Gentry should he admonished for bringing that up before the jury because that is not admissible.here. It has been ruled out here. THE COURT: It is a matter of argument. Go ahead. MR. GENTRY: They ought to do just like they did down, the Cotton Belt did down on Third and State— they have got a big gong, you know what they have got down there, they have got a gong, a big gong and lights flashing on them when a train is coming, it gives them plenty of notice, off and on, off and on, then it says stop right along down the pole there and the bell is ringing. Then they have got crossarms in addition to that that says ‘railroad crossing.’ They did not even put up a $2.00 sign, if you please.”

It appears to us that appellee did succeed in getting before the jury, in effect, all that the excluded pictures showed relating to the 3rd Street (Cotton Belt) crossing. While it would have been proper for appellee, in the circumstances, to have argued to the jury as evidence of appellant’s negligence that it had failed to erect at its 4th Street crossing cross-arms on an upright which are generally used by railroads at crossings, it was highly improper for him to argue to the jury, over appellant’s objection, that the Cotton Belt Railroad at its 3rd Street crossing had, in addition to the cross-arms, provided many other protective and warning devices and therefore, that appellant, by its failure to provide similar warning devices, in addition to cross-arms, at its 4th Street crossing, was guilty of negligence.

One act of negligence cannot be proved by another, Coca-Cola Bottling Company of Helena v. Mattice, 219 Ark. 428, 243 S. W. 2d 15. In the case of Atchison, Topeka & Santa Fe Railway Company v. Aynes, 271 P. 2d 312, 46 A.L.R. 2d 930, the Oklahoma Supreme Court, in a somewhat similar situation as here where it appeared that two railroad crossings were three blocks apart, that court held: “In an action for bodily injuries received in a railroad crossing collision in which a principal claim of negligence was the failure of the crossing signal to work, and in which defendant introduced evidence to show the reliability of the signal system, but conceded the possibility of failure of such a device, reversible error is committed in admitting in rebuttal evidence concerning operating failure of the same type of signal at a different crossing and at an indefinite time.”

For the error indicated, the judgment is reversed and the cause remanded.

McFaddin, Ward & Johnson, JJ., dissent.

Ed. F. McF addin, Associate Justice,

(Dissenting). The majority is reversing the judgment in this case solely on alleged improper argument; and I think that in so doing the majority is reversing on a point that was not duly preserved of record. In order that my dissent may be understood I copy in full Pages 322 and 323 of the transcript, which are the only pages involving this matter of argument.

(Beginning of Page 322 of Transcript.)

‘ ‘ Thereupon, Mr. Gentry, in his opening argument TO THE JURY, AMONG OTHER THINGS, MADE THE FOLLOWING ARGUMENT TO THE JURY, to-WÍt: “Mr. Gentry: ***Now, let’s look at these pictures. When you drive along there a stranger in town that has never been across that crossing before can not even tell that is a railroad crossing. That is Exhibit No. 2. There is not a way in the world you can tell that is a railroad crossing as one drives up there until they get right up there and you see the tracks. Wouldn’t it have been simple and easy to put a little sign right up here, just a simple crossing marker, you have seen them at every country crossing in the State of Arkansas. They have got signs on railroad crossings way out in the country that you don’t go across I reckon once a day. You will see at least other signs that say railroad crossing - wouldn’t an ordinarily prudent person at least say on a $2.00 sign that it is a railroad crossing? They do at every place else. They have done it so much that the, well, you remember the old riddle, ‘Railroad crossing, look out for the cars, let me hear you spell that without any R’s’, you remember that old riddle, but on your city, in your streets in the City of Pine Blnff they don’t even think enough about safety situation on your streets to put a $2.00 sign down there - it is not there, ladies and gentlemen of the jury, don’t you think they ought to put a $2.00 sign down there when at least, in other words, they ought to do just like the Cotton Belt has down here on Third, (interrupted)
(End of Page 322 of Transcript.)
(Beginning of Page 323 of Transcript.)
‘ ‘ MR. CLARK: Your Honor, I object to that.
MR. GENTRY: put a gong and lights and stop signs to give warning to those people, (interrupted)
MR. CLARK: Mr. Gentry should be admonished for bringing that up before the jury because that is not admissible here. It has been ruled out here.
THE COURT: It is a matter of argument. Go ahead.
MR. GENTRY: They ought to do just like they did down, the Cotton Belt did down on Third and State - they have got a big gong, you know what they have got down there, they have got a gong, a big gong and lights flashing on them when a train is coming, it gives them plenty of notice, off and on, off and on, then it says stop right along down the pole there and the bell is ringing. Then they have got crossarms in addition to that that says ‘railroad crossing’. They did not even put up a $2.00 sign, if you please.
‘ ‘ MR. CLARK: The defendants move for a mistrial on the ground that counsel for plaintiff went outside of the record in his closing argument concerning crossing signals and warnings at other crossing which have no bearing on this lawsuit whatsoever.
THE COURT: Motion overruled.
MR. CLARK: Note our exceptions.”
(End of Page 323 of Transcript.)

I have copied exactly the entire two pages. I call particular attention that on top of Page 322, the reference is to opening argument; and that on Page 323 the motion for mistrial refers to something that occurred in the closing argument. The reference to the Cotton Belt Railroad crossing was made by Mr. Gentry in his opening argument to the jury. And after he made that reference to the Cotton Belt Railroad crossing there was no objection made or exception saved. After he concluded his opening argument, there is a line across the page, and the motion for mistrial was because it was claimed Mr. Gentry went outside the record “in his CLOSING argument”. Mr. Gentry, as attorney for the plaintiff, in the summation to the jury made the opening argument, the railroad company made its argument, and then Mr. Gentry made the closing argument. It was in the opening argument that there was a reference to the Cotton Belt Railroad crossing; and after that reference there is no objection made or exception saved, according to the record in this case. It was only in regard to something that Mr. Gentry said in his closing argument (and what he said is not disclosed), that there was a motion made for a mistrial and the exception saved. I cannot see how the majority finds any reversible error duly preserved.

There is another reason why I think this case should not be reversed on the point with reference to the railroad crossing: that is because the case was tried in Pine Bluff, Arkansas, and it is reasonable to presume that the people on the jury knew something about the railroad crossings in Pine Bluff. The condition of those railroad crossings was a matter of common knowledge; and a lawyer in arguing to a jury can bring in matters of common knowledge, even though they have not been developed in the evidence. In 53 Am. Jur. Page 388, “Trial” § 481, in discussing the argument of counsel to the jury, this appears:

‘ ‘ Matters of General Knowledge. - Even though evidence of such facts has not been formally introduced, it is proper for counsel to argue to the jury matters of common knowledge or matters of which the court will take judicial notice, . . . .”

To the same effect see 88 C.J.S. Page 355, “Trial” § 181, wherein the text states: “Counsel may properly argue and comment on self evident facts and matters of common knowledge outside the record”. Surely the people on the jury knew something about the Cotton Belt Railroad going through Pine Bluff; and all Mr. Gentry said was, that the Cotton Belt had a warning bell and crossarms at its street crossing. I think what he said was a matter of common knowledge.

But, at all events, the reference to the Cotton Belt crossing was in the opening argument, and no objection was made or exception saved to the remark at that time. The only reference to a mistrial and the saving of exceptions is to something that occurred in the closing argument and which is not stated in the transcript.

■ I respectfully dissent from the reversal; Justices Ward and Johnson join in this dissent.


author: J. Seaborn Holt, Associate Justice.

text:
    Midwest Timber Products Co., Inc. v. Self.
    5-1898
    327 S. W. 2d 730
    Opinion Delivered September 21, 1959.
    [Rehearing denied Oetober 26, 1959]

      Parker & Mobley, for appellant.

      Donald Poe, for appellee.
   J. Seaborn Holt, Associate Justice.

This case involves a suit to set aside a default judgment. The record shows that on November 5, 1958, at a regular term of the Scott County Circuit Court at Waldron, Arkansas, Circuit Judge Paul Wolfe, after hearing evidence, granted and entered a default judgment against appellant, Midwest Timber Products Company, Inc., for $3,000.00 as damages for the alleged taking and misappropriation of certain timber belonging to appellee, A. A. Self. At this hearing, appellant was not present either in person or by counsel. From this judgment appellant has appealed and for reversal alleges that the trial court erred in refusing to set aside this judgment on the ground that appellant had no notice that the case had been set for November 5,1958, and would be tried on that date. Further, that it had a valid defense, that “for unavoidable casualty or misfortune, defendant was prevented from appearing and defending the action,” and that appellant’s present attorneys, Parker and Mobley, after their employment by appellant, had “used due diligence in the prosecution of appellant’s cause.”

A brief history of the proceedings reflects that the complaint was filed on October 9, 1957, for appellee by his attorney, Mr. Poe, and an answer was filed by Bob Bailey, Sr., for appellant on October 28, 1957, and default judgment was rendered on November 5, 1958, more than a year later. On October 22, 1957, the clerk of the Scott County Circuit Court sent the following letter to Bob Bailey, Sr.: “Be: A. A. Self vs. Midwest Timber Pro Co 2763. The court has requested me to advise you that all cases on the Civil Docket of the Scott County Circuit Court will be called at 9:00 A.M. Tuesday Nov. 5, 1957, for the sole purpose of disposing of any non-jury issues requiring disposition. All civil cases at issue will be pre-tried during the week of Tuesday, Nov. 12th and will be set for trial during tbe week beginning Nov. 25th. Respectfully /s/ Norman Goodner Clerk.”

October 26, 1957, Bailey, Sr., sent a letter to the Circuit Clerk at Waldron stating that due to a conflicting engagement in Federal Court at Little Rock, he could not try the “A. A. Self v. Midwest Timber Products Company, Inc.,” case the week of November 25, 1957. Copies of this letter were sent to Judge Paul Wolfe and Mr. Poe, appellee’s attorney. On December 23, 1957 Mr. Bob Bailey, Sr., died, and there is evidence that Bob Bailey, Jr., took his father’s place of representing appellant. Thereupon Mr. Poe sent a letter dated August 16, 1958 to Bailey, Jr., stating that he wanted to try the case as soon as possible at the court’s convenience. On this same date, Poe wrote Judge Wolfe requesting him to set a trial date of the case and a copy of this letter was sent to Bailey, Jr.

There was another letter from Poe to Judge Wolfe on September 6, 1958, requesting the trial as soon as possible. A copy of this letter was also sent to Bailey, Jr. September 8, 1958, Judge Wolfe sent a letter to Bailey asking him when he would like to try the case. October 15, 1958, there was a letter from Judge Wolfe to Poe stating that the trial date would be November 5, 1958, and that he was sending a copy of the letter to Bailey, Jr., with the request that Bailey forward it to new counsel. October 16, 1958, Poe wrote Judge Wolfe stating that Bailey had advised him the new counsel would be Richard Mobley. On October 22, 1958, Richard Mobley (who is not the same as the Mr. Mobley in the firm of Parker and Mobley, present attorneys for appellant) wrote the following letter to Mr. Poe with copies to Judge Wolfe, Bob Bailey, Jr., and appellant, Midwest Timber Products Company, Inc.: “Re: A. A. Self v. Midwest Timber Products Co. (2763) Gentlemen: The defendant in the above styled case has obtained other counsel. Accordingly, I will not be in court for trial November 5th as directed. By copy of this letter I am advising Midwest and the Court. Yours truly /s/ Richard Mobley RM/rt en c.c. Judge Paul Wolfe, Fort Smith, Arkansas c.c. Mr. Bob Bailey, Jr., Russell-ville, Arkansas e.c. Midwest Timber Products Co., Olla, Arkansas.”

Thereafter, it appears that the attorneys who succeeded Richard Mobley were appellant’s present attorneys, Parker and Mobley, and they say that they were not employed by appellant until November 3,1958, before the default judgment of November 5, 1958.

It is undisputed that the default judgment here was taken at a regular term (November term) of the Scott County Circuit Court (Sec. 22-310 Ark. Stats. Anno.) and that appellant’s motion to vacate and set said judgment aside was filed on November 14, 1958, well within the regular term at which said judgment was rendered. In these circumstances we have consistently held that the action of the trial court here, refusing to set said judgment aside was addressed to its sound discretion. We said in 192 Ark. 603, McDonald v. The Olla State Bank, “The law is that motions to vacate judgments or decrees filed within the term at which such judgments or decrees are entered are addressed to the sound discretion of the trial courts, and need not conform to statutes relating to vacating of judgments and decrees after the expiration of the term of court at which they were rendered. Ashley v. May, 5 Ark. 408; Campbell v. Garven, 5 Ark. 485; Wells Fargo & Company v. W. B. Baker Lbr. Co., 107 Ark. 415, 155 S. W. 122.” After a careful review of all the evidence, we have concluded that no abuse of this discretion on the part of the trial court has been shown.

It was the duty of appellant’s various attorneys to keep appellant advised as to the progress of this litigation and any failure or neglect on their part, to keep their client (appellant) abreast of all proceedings, must be imputed to appellant, and that it had knowledge of the acts of its attorneys. In 197 Ark. 373, 122 S. W. 2d 589, White v. Milburn, we said: “* * * We have followed that line of authorities which hold that the neglect of counsel or attorney must be imputed to his client.”, and what we said in 104 Ark. 45, 148 S. W. 262, Blackstad Mercantile Company v. Bond, applies with equal force here: “They employed the attorney to attend to this particular ease, and are bound by any negligent act of his in failing to appear and make defense. There is no testimony indicating fraud in procuring the judgment, nor that there was any design on the part of the appellant, or its attorneys, to practice deception either upon the court or upon appellees in taking judgment. The judgment was entered on the eighth day of the term, which gave appellees abundant time to prepare their defense. Negligence on the part of one’s own attorney is not sufficient to justify setting aside a judgment.”

We find no merit to appellant’s claim of unavoidable casualty or misfortune as would prevent its appearance and defense, if any, on November 5, 1958, when judgment was entered. In Parker v. Sims, 185 Ark. 1111, 51 S. W. 2d 517, we said: “It is the duty of a litigant to keep himself informed of the progress of his case, and a party seeking relief against a judgment on the ground of unavoidable casualty or misfortune preventing him from defending must show that he himself is not guilty of negligence, and he cannot have relief if the taking of the judgment appears to have been due to his own carelessness.”

Appellant’s attorneys, Parker and Mobley, came into this case by their own admissions at least two days before the judgment in question was rendered and at a time when appellant knew, or should have known, what its previous attorneys knew who had represented it up to the moment it employed its present attorneys, Parker and Mobley, and that was that the case had been set for November 5, 1958. Had appellant given its new attorneys this information or if they already knew it, they should have been present at the trial on November 5, 1958. Appellant, therefore, cannot have relief when the taking of the judgment appears to have been due to its own negligence or that of its attorneys.

Other alleged errors have been given careful consideration and found to be without merit.

Affirmed.


author: Ed. F. MoFaddin, Associate Justice.

text:
    Ark. State Highway Commission v. Bollinger.
    5-1892
    327 S. W. 2d 381
    Opinion Delivered September 21, 1959.

      W:R. Thrasher and Ed H. Boyett, for appellant.

      Dale L. Bumpers and Mark E. Woolsey, for appellee.
   Ed. F. MoFaddin, Associate Justice.

By this appeal appellant challenges the correctness of the Chancery Court decree which awarded, appellees, Bollinger and wife, the $2,500.00 which appellant had deposited in the Chancery Court under the terms of a chancery decree of April 30, 1957.

This is the second appearance of this case in this Court. Bollinger v. Arkansas State Highway Commission, 229 Ark. 53, 315 S. W. 2d 889 (hereinafter referred to as the “first case”), contains a detailed recital of the facts, which briefly were: that in 1927 the County Court of Franklin County made an order widening the highway, but the right-of-way was never cleared insofar as concerns the property of the appellees. These lands remained under fence and there was no action taken by the County or the State to remove the fences and obstructions ; and the same situation continued to exist over the years. In December 1956 the Arkansas State Highway Commission filed the “first case” in the Franklin Chancery Court, seeking a mandatory injunction to require the Bollingers (present appellees) to remove the obstructions from the right-of-way, as had been designated in the 1927 court order. The Bollingers claimed that the 1927 order was void for reasons as discussed in our opinion in the first ease.

The Chancery Court held — in the first case — that the 1927 County Court order was valid, and that the County would be liable for Bollingers’ damages for the lands taken. The decree entered by the Chancery Court in the first case stated:

“ (4) The Court further finds that while said Court Order of December 19, 1927 included and embraced the particular lands in question, that is that part of Defendants ’ lands upon which are now located said pump island, gasoline pumps and sign, and was a valid condemnation of said particular lands for highway purposes, the Highivay Commission has not heretofore taken actual physical possession of that particular part of Defendants’ lands and has not actually used same for highway purposes. . . .
“. . . The Court further finds that this $2,500.00 deposit is to be held in such a state of deposit as a cash bond to guarantee payment of these Defendants’ damages, if any, occasioned by this mandatory decree if such damages, if any, are not paid after being ascertained in the proper manner and as provided by law. . . .
£ £ The Court further retains jurisdiction of said cause for such other orders as may be necessary.”

The Arkansas Highway Commission did not cross appeal from the Chancery decree in the first case: rather, the Commission acquiesced in the decree and deposited the $2,500.00 in the registry of the Court under the above recited conditions. The Bollingers appealed in the first case, contending, inter alia, that the 1927 order was indefinite and void. We denied that contention, and thus concluded the first case.

In keeping with the Chancery decree of April 30, 1957, the Bollingers filed claim with the County Court and the claim was allowed by the County Court of Franklin County on May 4, 1958 in the sum of $3,241.00; but the County Court found:

“The court further finds, however, that while said claim is just and correct and that no part thereof has been previously paid, same cannot be paid by the county for the reason that the county does not have funds available with which to pay said claim, or any part thereof, under Amendment No. 10 to the Constitution to the State of Arkansas and that the payment of said claim, or any part thereof, would be in excess of the revenues of Franklin County for the present fiscal year.”

The County Court then remitted the Bollingers to their relief in the Chancery Court. We come now to the present case. The Bollingers filed the County Court orders in the Franklin Chancery Court and asked that they receive the $2,500.00 in the registry of the Court. The Arkansas State Highway Commission resisted, and asked that the $2,500.00 be returned to the Highway Commission. Under date of December 8, 1958 the Franklin Chancery Court entered a decree awarding the $2,500.00 to the Bollingers, saying:

“That the purpose of said deposit was as security to protect the defendants in event it should later be found by the county court or by the circuit court on appeal that they had been damaged by reason of the taking of their lands for highway purposes and by reason of being required to remove said encroachments from the right-of-way.
“That pursuant to said decree, said deposit was made by the plaintiff; and defendants have complied with said original decree.
“That on appeal to the Supreme Court by the defendants, said cause was affirmed without modification and that same is now the law of this case.
“That the county court has found that defendants were damaged in the amount of $3,241.00, that same constitutes a just claim against Franklin County; but that the county does not have funds sufficient to pay said amount, and that the only funds available are the deposit of $2,.500.00, which claim has been duly allowed by the County Court of Franklin County in that amount and in open Court defendants waive any damages in excess of $2,500.00; that in conformity with the original decree of this Court, which was affirmed by the Supreme Court and has now become the law of the case, defendants have established in the manner provided by law their claim for damages in the amount of $2,500.00; that Franklin County does not have funds with which to pay said claim; and that the fund now on deposit in the registry of this court should be paid to the defendants.”

We conclude that the Chancery Court was correct. The Bollingers filed their claim in the County Court and obtained an award of damages, as hereinbefore recited. The County stated that it was without funds to pay the award. The condition of the deposit of the $2,500.00 in the Chancery Court in the first ease, was:

. “That the mandatory injunction will become effective on the date that plaintiff shall place and deposit in the registry of the Chancery Court of. the Charleston District the sum of $2,500.00 . . . to be held in such a state of deposit as a cash bond to guarantee payment of these defendants’ damages, if any, occasioned by this mandatory decree, if such damages, if any, are not paid after being ascertained in the proper manner and as provided by law.”

This was not an ordinary injunction bond, but it was on a specific condition. If the Highway Commission bad been dissatisfied with the condition it should have cross appealed in the first case. Instead, it agreed, and made the deposit; and cannot now be heard — after having lulled the Bollingers into a feeling of security — to say that their claim is barred. If the Highway Commission was dissatisfied with the allowance of the Bollinger claim in the County Court, the Commission should have resisted the claim by appeal to the Circuit Court. The Commission cannot now indirectly attack the County Court allowance.

"We therefore conclude that the Chancery decree should be, and is, hereby affirmed.

       The Chancellor said, as copied in our first opinion: “‘We have several Supreme Court decisions, all holding that when the county condemns land, the county is liable for the damages. The land mark case is Arkansas State Highway Commission v. Palmer, 222 Ark. 603, 261 S.W. 2d 772. * * * It seems to me in a ease like this one where the county condemns the land and the property owner is suffering damages and didn’t get around to doing anything about it until this, late date, that the county would be the party that might be liable for the damages. * * * So, as I see it, the thing to do here — the practical approach — is to enter this injunction . . . and allow Mr. Bollinger to file a claim against the county. If the county does not allow his claim, he can bring it up in the Circuit Court and have a jury trial. * * *’ ”

       The County Court order said in part: “. . . the Chancery Court of Franklin County, Arkansas, Charleston District thereof, in its decree . . . required that said Arkansas State Highway Commission deposit in the registry of said Chancery Court of Franklin County, Arkansas, Charleston District thereof, the sum of $2,500.00 to be held as a cash bond to guarantee payment of the damages which the defendants, John Bollinger and Gladys Bollinger, who are claimants herein, might sustain by reason of the mandatory injunction granted by said chancery court, after such damages had been ascertained in the proper manner and as provided by law. That said sum of $2,500.00 is now held by the clerk of the Chancery Court of Franklin County, Arkansas, Charleston District thereof, and is a fund available for the payment of claimants’ damages as found by this court . . .”


author: George Rose Smith, J. Paul Ward, Associate Justice,

text:
    Ark. State Highway Commission v. Cochran.
    5-1834
    327 S. W. 2d 733
    Opinion Delivered September 21, 1959.
    [Rehearing denied October 26, 1959]

      W. B. Thrasher, Dowell Anders <& Wendell Hall, for appellant.

      Ben M. McCray, Mehaffy, Smith & Williams by: B. Ben Allen, for appellee.
   George Rose Smith, J.

This is a proceeding by the Highway Commission to condemn 2.038 acres of land, owned by the appellee Cochran. The parcel being condemned is part of a three-acre tract, all of which is subject to a mineral lease executed by Cochran to the other appellee, Hogan & Company. The jury fixed the appellees’ compensation at $10,140.00 for Cochran’s ownership and $2,127.50 for Hogan’s interest as lessee. The Commission contends that the verdicts are excessive and that erroneous rulings were made during the trial.

Cochran’s mining lease to Hogan authorized the latter to remove from the three acres what is referred to as “select material,” for which Cochran was to receive a royalty of ten cents a cubic yard. Select material is a porous sand that is used by Hogan and other road contractors in the construction of paved highways. Exploratory drilling upon the Cochran tract shows that select material exists to an average depth of twenty-one feet throughout the three acres. Upon this basis the appellees’ witnesses estimated the total deposit as being 101,400 cubic yards, which at ten cents a yard would be worth $10,140.00 to Cochran. Since that is the exact amount of the verdict awarded to Cochran it is evident that the jury accepted the appellees’ testimony as being true.

In the particular circumstances of this case the appellees’ proof was competent. As a general rule the market value of a tract of land cannot be determined simply by estimating the amount of stone or other mineral that it contains and then multiplying that estimate by a fixed price per unit. Orgel, Valuation Under Eminent Domain (2d Ed.), § 165; Hollister v. Cox, 131 Conn. 523, 41 A. 2d 93, 156 A.L.R. 1412. But it has been correctly pointed out that such testimony should be received when, as here, the owner has already leased the property for a per yard rental. Winner, Rules of Evidence in Eminent Domain Cases, 13 Ark. L. Rev. 10, 20. Here there is testimony that Hogan would have mined and used the 101,400 yards of select material if Cochran had been allowed to keep the land. In view of this evidence the appellees’ computations of value were admissible.

We do not regard this case as falling within the principle that a condemnor should not be required to pay an enhanced price which its demand alone has created. See United States v. 620 Acres of Land, D. C. Ark., 101 P. Supp. 686; Hoy v. Kansas Turnpike Authority, 184 Kan. 70, 334 P. 2d 315. In the Hoy case, for example, the land being taken for highway purposes was underlaid with ordinary rock similar to that to be found within much of the entire eastern third of the state of Kansas. The court held that in the absence of any showing that a market existed for the rock the condemnor should not be charged an increased price simply because the highway construction project had created a limited demand for rock. In the case at bar it is shown that select material suitable for highway construction is hard to find and exists only in isolated spots. The lease between Cochran and Hogan was executed more than six months before this eminent domain proceeding was filed. No doubt Hogan intended to use the select material on the Little Rock-Benton highway, in connection with which Cochran’s land is being taken; but the proof does not show that the value of Cochran’s select material is attributable solely to the present construction project. To the contrary, the testimony indicates that a royalty of ten cents a yard is customarily paid to the owner of select material, wherever it may be found.

Upon another ground, however, we consider the award to Cochran to be excessive. The material underlying his entire three acres has a royalty value of $10,140.00; but the Commission is. taking only 2.038 acres, which according to the appellees’ method of calculation contain 69,047 cubic yards of select material, having a royalty value of $6,904.70. Although the appellees’ proof indicates that it is not at present-practical to mine the small parcel that is not being taken, we still cannot sustain Cochran’s contention that he should therefore be awarded the royalty value of the select material in that untaken parcel. Cochran’s home and workshop are situated on the land he is retaining, and obviously he could not keep those improvements if the property were excavated to a depth of twenty-one feet. If by any chance the value of the house and shop is less than the royalty value of the unminable select material Cochran has not met the burden of proving his net loss in that respect.

Nor can we sustain Cochran’s suggestion that the jury might have found that the deposit of select material extends to a depth of thirty-five feet, so that there is a sufficient quantity in 2.038 acres to support the verdict. In the first place, there is nothing in the record to indicate that the layer of select material averages thirty-five feet in thickness; that is merely the maximum depth, with twenty-one feet being given as the average. Secondly, the appellees’ witness Cobh, who alone testified about the maximum depth of thirty-five feet, admitted on cross-examination that the necessity of sloping the sides of the excavation offsets the fact that the select material extends at some points to a depth of more than twenty-one feet.

We conclude that the testimony as to the value of Cochran’s ownership does not support an award in excess of $6,904.70, the figure we have mentioned. The judgment is affirmed in that amount on condition that a remittitur of the excess he entered within seventeen calendar days; otherwise the judgment will he reversed and the cause remanded for a new trial.

The Commission’s contention that Hogan’s verdict for $2,127.50 is excessive narrows down to an insistence that Hogan produced no competent evidence whatever to establish its loss. It may be observed at the outset that the mineral lease to Hogan conveyed an interest in the land, even though the lessee did not have title to the mineral itself. Standard Oil Co. of Louisiana v. Oil Well Salvage Co., 170 Ark. 729, 281 S. W. 360; Quality Coal Co. v. Guthrie, 203 Ark. 433, 157 S. W. 2d 756; case note, 11 Ark. L. Eev. 186. The question is whether Hogan offered any admissible testimony about the worth of its interest.

As we have said, select material is not easy to find. It does not seem to have an established market price, as its value varies according to its proximity to road construction projects. In this instance Hogan had been awarded extensive road contracts and would have used the select material in the construction of the highway that Hogan had hound itself to build. It is shown without contradiction that the nearest known alternative supply of select material is near Bauxite and would involve increased hauling costs amounting to $34,476.00. On this basis one of Hogan’s witnesses testified that its interest in the Cochran lease had a market value of $34,476.00; but the jury, as we have seen, made an award of only $2,127.50.

We are of the opinion that the evidence is sufficient to support the verdict. The Commission offered no testimony to dispute Hogan’s proof that the value of select material depends upon its nearness to a construction project, which manifestly implies that transportation costs are an important factor. It seems plain enough that the value of Hogan’s leasehold interest depends to a large extent upon the comparative expense that would be involved if Hogan were compelled to find another source of material for the performance of its contracts. In a recent case we held that the cost of improvements made necessary by the taking of part of the landowner’s property is a proper item for the jury’s consideration, even though that cost is not itself the true measure of damages. Ark. State Highway Comm. v. Speck, 230 Ark. 712, 324 S. W. 2d 796. Here the ultimate question for the jury was the fair market value- of Hogan’s leasehold interest, and that issue was submitted to the jury through instructions that are not challenged. Even though increased transportation costs are not themselves the measure of damages in a case of this kind we regard such evidence as a proper aid to the jury in its effort to determine the market value of the lease.

The Commission also insists that the court erred in permitting the jury to return separate verdicts for the Cochran and Hogan interests in the land, but this contention was rejected in Ark. State Highway Comm. v. Fox, 230 Ark. 287, 322 S. W. 2d 81.

The judgment in favor of Hogan is affirmed.

Holt and Ward, JJ., dissent.

Paul Ward, Associate Justice,

dissenting. After careful reflection I am forced to the conclusion that the majority opinion is erroneous in several respects and that the rules of evidence sanctioned therein will probably rise up hereafter to haunt this court.

As to Cochran. The majority approved an award to Cochran in the amount of $6,904.70. The testimony on which this award was based and also the majority opinion itself show conclusively that it was arrived at by ascertaining the number of cubic yards contained in two acres of ground at an average depth of twenty-one feet and then multiplying that figure by ten (cents) — the price per yard. It is obvious, of course, that in order to arrive at the above number of cubic yards the walls of the gravel pit would have to be dug straight down — with a perpendicular bank — for the entire depth of the excavation, that is, twenty-one feet. This, of course, is just a plain physical impossibility.

Fortunately it is not necessary in this case to rely solely on the ‘ ‘ obvious ’ ’ for there is testimony in the record to support my contention of error. Two witnesses state in substance that it was impossible to excavate sand and gravel — or the materials here being considered — to a depth of twenty-one feet with perpendicular walls, but that it was necessary to excavate on a slope of one to one- and-one-half. By this method they arrive mathematically at much less than the 69,047 cubic yards as set forth in the majority opinion. Appellees’ own witness stated in substance that you could not excavate with perpendicular sides because the material when wet would dissolve like sugar. I am, therefore, forced to the conclusion that there is no substantial evidence on which the jury could award Cochran ten cents per cubic yard for 69,047 cubic yards of select material.

Under these circumstances I would fall back on the old well-established rule that Cochran’s damages in this case are the difference between the value of the property before the taking and the value after the taking. The only testimony introduced in the record of this nature was that of two of appellant’s witnesses. The highest one placed Cochran’s damages at $6,450.00 after taking into consideration the market value of the select material. Therefore, I would affirm as to Cochran for the latter amount in the event of a remittitur.

Moreover, the best authority I have been able to find does not support the majority’s method of determining-damages — that is by multiplying cubic yards by a stated price per yard. See Reiter v. State Highway Commission of Kansas, 177 Kansas 683, 281 P. 2d 1080, where the trial court permitted the questioned evidence and the appellate court reversed, stating: “ ... the royalty rate should not have been admitted in evidence”. Also, in the case of United States ex rel. T.V.A. v. Indian Creek Marble Company, 40 F. Supp. 811, it was said: “Fixing just compensation for land taken bj7- multiplying the number of cubic feet or yards or tons by a given price per unit has met with almost uniform disapproval of the courts”. The court further said: “ It was not proper to arrive at a value of land being condemned by taking such quantity of sand and multiplying it either by a royalty rate per yard or by multiplying such quantity by a price sand was currently bringing per yard”. The reason for rejecting the “royalty” rule is that it is based on speculation. It is well settled by our opinions that value must be fixed at the time of the taking by the State and it is impossible to tell exactly how many cubic yards of material will be utilized until it is extracted from the earth. That fact is well demonstrated in the case under consideration. Appellees’ witness stated that part of Cochran’s “pit” could not be used because of the presence of so much heavy equipment. Also, it could develop that some of the material would not be up to standard.

As to Hogan. The same reasoning which applies to the claim of Cochran applies to the case of Hogan. Moreover, if the testimony introduced by Hogan was proper and relevant then the jury should have brought in a verdict in favor of Hogan in the amount of $34,476.00, because the undisputed testimony establishes that amount. If appellee is sincerely in accord with the rule followed by the majority opinion, then it is hard to understand why it has not asked the trial court and this court for a directed verdict for that amount.

Again, Hogan’s estimate of $34,476.00 is based on the fact that in hauling gravel from Bauxite rather than from the Cochran pit, it was forced to haul it an extra distance of about four miles. Let’s examine this proposition. In the first place it is pure conjecture as to where the material from the Cochran pit would have been used. It must follow, therefore, that under this line of reasoning, Hogan’s damages depended on where he used the material. Based on such reasoning, Hogan might have claimed that he had to haul it six or seven miles further and his damage would have been correspondingly larger. This proves conclusively again that Hogan’s damages could not have been calculated (under the majority rule) at the time of the taking by the State.

It is interesting to note what apparent inequities might have resulted in this case under the majority rule. The record indicates that Cochran paid approximately $500.00 for the parcel of land in question only a few years before this litigation began. Under the testimony allowed to be introduced into this record the Highway Department Could have been forced to pay more than $44,000.00 for the two-thirds of Cochran’s property, and, as shown above, it might have been forced to pay even more. The record reflects that the State, under its contract, paid Hogan for hauling select material from Bauxite, and it shouldn’t be forced to pay him for the same thing again.

I gather from the entire record that Hogan suffered no loss by reason of the taking of the said two acres of land. I do agree that my view would prevent him from making a handsome profit by virtue of his securing the lease from Cochran but I do not think the State should have to reimburse him for the loss of that land of a paper profit.

Under the time tested before-and-after-taking rule, when the State paid Cochran the total market value of his two acres of land (including the select material) it paid for all the value the land possessed. Any rule that forces the State to pay more is wrong and impractical. Cochran didn’t guarantee that Hogan could take any select material from his land, and Hogan knew he could take nothing if the State took the land. In other words, Hogan took a free gamble on a neat profit at the State’s expense and he should lose.

Judge Holt joins in this dissent.


author: Paul Ward, Associate Justice.

text:
    Cargill, Inc. v. Thibault Milling Co.
    5-1857
    328 S. W. 2d 362
    Opinion Delivered September 21, 1959.
    [Rehearing denied November 23, 1959]

      MeHaffy, Smith & Williams, for appellant.

      Wright, Harrison, Lindsey ■& Upton, for appellee.
   Paul Ward, Associate Justice.

On July 26, 1955, appellee, Thibault Milling Company, placed an order with appellant, Cargill, Incorporated, for 2,000 bushels of corn. There was no written contract but it is agreed by all parties that the offer by appellee and acceptance by appellant did constitute a contract, the essential terms of which were as follows: The price was to be $1.66 a bushel delivered at Little Bock and the grain was to be “shipped from Chicago” not later than July 30, 1955. It seems that in the normal course of events the carload should have arrived in Little Bock not later than August the 7th. It actually arrived from five to seven days later at which time the appellee refused to accept the shipment. After all attempts to compromise had failed, appellant sold the grain at the price of $1.44 per bushel, and then brought this action to recover the loss from appellee. The trial before the Circuit Judge, sitting as a jury, resulted in a judgment in favor of the appellee.

Under the view which we have chosen to take it is necessary here to consider only one question and that is whether appellant breached the contract by failing to ship the grain from Chicago on or before July 30, 1955. Under the well-established rule that the finding of the trial judge in this instance must be given the same weight as a finding by a jury, the judgment of the trial court must be affirmed if we find in the record substantial evidence to support it.

"We find that the record discloses that the grain was delivered to the Chicago and Northwestern Railway Company in Chicago on July 28th or 29th. It is the contention of appellant that this constituted a shipment and hence a compliance with the contract under the holding in Arnold v. U. S., 8 Cir., 115 F. 2d 523. In this opinion, among other things, it is stated: ‘ ‘ The primary idea of the verb ‘ship’ is to place on board a ship or vessel for transportation. It is defined in Webster’s International Dictionary to mean, ‘To commit to any conveyance for transportation.’ It is very commonly used as meaning the act of delivering to a carrier for shipment.” Similarly and to the same effect our attention is called to the definition of “ship” or “shipment” as found in 80 C. J. S. at Pages 558-561.

On the other hand appellee appears to take the position that the grain in this instance was not actually shipped until it was delivered to the Chicago, Rock Island and Pacific Railroad Company in Chicago, and it is appellee’s further contention that it was not received by the latter railroad company until August 3rd. This contention is necessarily based on the theory that the Chicago and Northwestern Railway Company performed only a switching service as the agent for appellant, and that it was not in a legal sense a carrier. We find from the record substantiation for this theory. In the cross interrogatories of W. B. Saunders, who is Assistant Vice President of appellant, he stated that the Chicago and Northwestern Railway Company issued to appellant a switching receipt on July 29, 1955. The record contains a letter dated July 17, 1957, from the agent of said Chicago and Northwestern Railway Company to appellant’s manager in which it is stated, among other things, that his railroad company “made interline switching waybill” on this particular car of grain and that it “was switched” by his company to the Chicago, Rock Island and Pacific Railroad Company and that his company “handled this car in switching district.” It was further stated in the letter that the Chicago, Rock Island and Pacific Railroad Company was the “road haul carrier.” There is in the record some evidence that the Chicago, Rock Island and Pacific Railroad Company actually received the carload of grain before July 30, 1955, however, there is substantial evidence, we think, in the record from which the trial court could have found that the car of grain was not received by it until August 3, 1955. At Page 102 of the record is photostatic copy of the freight waybill of the Chicago, Rock Island and Pacific Railroad Company showing that this car of grain (No. 52919) was received and shipped on August 3, 1955. At Page 39 of the record is a letter from the General Agent of the said railroad company addressed to appellant relative to said Car No. 52919. One paragraph in this letter reads as follows: “Due to a typographical error we advised that the car moved in July; the correct month should be August. The time and days are the same as quoted.” The previous letter referred to shows the date to be July 3rd but the above letter shows that the correct date is August 3rd. At Page 45 of the record is a statement marked “Exhibit F (to statements in response to interrogatories) ” in which it is said, among other things, “Pulled by CRIP (Chicago, Rock Island and Pacific Railroad) from S. Chicago to Blue Island 11:00 A. M., 8 — 3—55.” There is also in evidence a letter from the Missouri Pacific Railroad Company, which was the delivering carrier to appellee, addressed to appellee at Little Rock in which it is stated: “. . . wish to advise our file has no reference to shipment being forwarded prior to August 3, 1955.”

We set out the above excerpts from the record to show what we think is substantial evidence to support the trial judge’s finding that the car of grain was not delivered to the Chicago, Rock Island and Pacific Railroad Company until August 3, 1955. The only questionable issue is whether the delivery to the Chicago and Northwestern Railway Company prior to July 30th constituted a “shipment from Chicago” in accordance with the terms of the contract between the appellant and the appellee. A careful scrutiny of the record convinces us that such a delivery did not constitute a compliance with the contract. It is admitted that the contract states that the car of grain was to be “shipped from Chicago.” Ordinarily we would not think much significance should be attached to the word “from” but we think the word does have significance under all the facts and circumstances in this case. It appears clearly from the testimony that the price of grain fluctuated from day to day and it is obvious that the appellee could suffer a severe financial loss unless it could have assurance that a shipment of grain would be received in the ordinary course of business. It is not denied that in this case the car of grain should have arrived in Little Rock within five to seven days sooner than it did. If we are to attach significance to the word “from” as we have indicated, then the Arnold case, supra, relied on by appellants would not be controlling. We gather from the record that it was not expected by appellant that the Chicago and Northwestern Railway Company would move the car of grain “from Chicago.” It seems that this railroad company merely performed switching operations between appellant and the ‘ ‘ road haul carrier, ’ ’ which, in this instance, was the Chicago, Rock Island and Pacific Railroad Company. Certainly it appears that appellant was aware of the fact that appellee had a right to expect prompt arrival of the grain in due course and it was also well aware of the fact that the car of grain in this instance would not start on its way out of Chicago to Little Rock until it came into the possession of the Chicago, Rock Island and Pacific Railroad Company. This being the ease, we think the burden was on appellant to see that the car of grain was delivered to the latter company on or before July 30th.

Finding substantial evidence to support the judgment of the trial court the same is hereby affirmed.

Affirmed.

McFaddin, J., not participating.


author: Sam Bobinson, Associate Justice.

text:
    Mitchell v. State.
    4950
    327 S. W. 2d 384
    Opinion Delivered September 21, 1959.

      J. 8. Thomas, for appellant.

      Bruce Bennett, Atty. General; by: Bill J. Davis, Asst. Atty. General, for appellee.
   Sam Bobinson, Associate Justice.

The appellant, a Negro 23 years of age, was convicted of raping a crippled white woman 77 years of age. The jury returned a verdict of guilty and fixed the punishment at death by electrocution. The overwhelming and uncontradicted evidence proves appellant guilty beyond any shadow of a doubt. In fact, there is no contention that the evidence is not sufficient to sustain the verdict.

It would serve no useful purpose to set out here the sordid details. Not only did the appellant commit the crime of rape, but he also robbed the victim of his attack. He was arrested early in the morning of March 10th, about an hour after the crimes were committed. That same day he was charged by felony information with the crime of robbery, and the next day, March 11th, he was taken before the court, arraigned on that charge, and an attorney was appointed to defend him. Up to that time, appellant had made no confession, and he was advised by the court that he did not have to make a statement and that any statement he might make could be used against him. On being returned to jail, he confessed his guilt on the robbery charge. There is no contention that he was mistreated in any manner. In his confession of the robbery, appellant did not disclose what he had done with the victim’s purse, which had not been found. The next day after the confession, Sgt. Henley, a peace officer, talked to the appellant in an effort to get him to disclose the whereabouts of the purse. The appellant stated that he had thrown it on top of the schoolhouse. Pursuant to this information, the officers went to the schoolhouse and found the purse. In the course of the conversation about the purse, appellant said he wanted to make another statement. It was then that he confessed to having committed the rape. On the 16th of March, a felony information was filed charging him with the crime of rape.

On appeal appellant contends that the confession of rape was erroneously admitted in evidence because he was in the custody of officers and had not been arraigned on that charge at the time of the confession. Appellant’s position is untenable. The law on that point was settled in State v. Browning, 206 Ark. 791, 178 S. W. 2d 77.

Appellant complains of the argument made in the case by the prosecuting attorney. The arguments of counsel do not appear in the record, and the record contains no objection to the prosecuting attorney’s argument. Even in a capital case, objection has to be made to preserve the record for review on appeal. Jenkins v. State, 222 Ark. 511, 261 S. W. 2d 784. Moreover, what is alleged to have been said by the prosecuting attorney was merely argument as to what the evidence showed regarding the morality of the appellant, and the jury could have considered it in no other light. We have carefully examined the entire record. The appellant had a fair trial, free from error.

The judgment is affirmed.