author: Sam Robinson, Associate Justice.

text:
    Cook Grains v. Fallis.
    5-3668
    395 S. W. 2d 555
    Opinion delivered November 15, 1965.

      Rieves S Rieves, for appellant.

      Spears & Sloan, for appellee.
   Sam Robinson, Associate Justice.

Appellant, Cook Grains, Inc., filed this suit alleging that it entered into a valid contract with appellee, Paul Fallis, whereby Fallis sold and agreed to deliver to Cook 5,000 bushels of soybeans at $2.51 per bushel. It is alleged that Fallis breached the alleged contract by failing to deliver the beans, and that as a result thereof Cook has been damaged in the sum of $1,287.50. There was a judgment for Fallis. The grain company has appealed.

Appellant introduced evidence to the effect that its agent, Lester Horton, entered into a verbal agreement with appellee whereby appellee sold and agreed to deliver to appellant grain company 5,000 bushels of beans; that delivery was to be made in September, October, and November, 1963. Fallis denied entering into such a contract. He contends that although a sale was discussed, no agreement was reached. He also contends that the alleged contract is barred by the statute of frauds.

Following the discussion or sale, whichever it was, between Horton and Fallis, appellant grain company prepared and mailed to Fallis a proposed contract in writing which, provided that Fallis sold to the grain company 5,000 bushels of beans. The instrument was signed by the grain company and it .would have been bound thereby if Fallis had signed the paper, but Fallis did not sign the instrument and did not return it- to the grain company. Later, Fallis refused to deliver the beans and the grain company filed suit.

The appellant grain company concedes that ■ ordinarily the alleged cause of action would be barred by the statute of frauds, but contends that here the alleged sale is taken out of the statute of frauds by the Uniform (Commercial Code. Ark. Stat. Ann. § 85-2-201 (1961 Addendum) is relied on. It is as follows:

“Formal requirements — Statute of frauds.— (1) Except as otherwise provided in this section a contract for the sale of goods for the price of $500 or more is not enforceable by way of action or defense unless there is some writing Sufficient to indicate that a contract for sale has been made between the parties and signed by the party against whom enforcement is sought or by his authorized agent or broker. A writing is not insufficient because it omits or incorrectly states a term agreed upon but the contract is not enforceable under this paragraph beyond the quantity of goods shown in such writing.
“(2) Between merchants if within a reasonable time a writing in confirmation of the contract and sufficient against the sender is received and the party receiving it has reason to know its contents, it satisfies the requirements of subsection (1) against such party unless written notice of objection to its contents is given within ten [10] days after it is received. ...”

Thus, it will be seen that under the statute, if appellee is a merchant he would be liable on the alleged contract because he did not, within ten days, give written notice that he rejected it.

The solution of the case turns on the point of whether the appellee Fallis is a “merchant” within the meaning of the statute. Ark. Stat. ■ Ann. § 85-2-104 (1961 Addendum) provides:

“ ‘Merchant’ means a person who deals in goods of the kind or otherwise by his occupation holds himself out as having knowledge or skill peculiar to the practices or goods involved in the transaction or to whom such knowledge or skill may be attributed by his employment of an agent or broker or other intermediary who by his occupation holds himself out as having such knowledge or skill. .

There is not a scintilla of evidence in the record, or proffered as evidence, that appellee is a dealer in goods of the kind or by his occupation holds himself out as having knowledge or a skill peculiar to the practices or goods involved in the transaction, and no such knowledge or skill can be attributed to him.

The evidence in this case is that appellee is a farmer and nothing else. He farms about 550 acres and there is no showing that he has any other occupation. In Words and Phrases, Yol. 16, beginning at page 401 there are many cases cited giving the definition of a farmer, such as:

“A ‘farmer’ is one devoted to the tillage of the soil, such as an agriculturalist. Sohner v. Mason, 288 P. 2d 616, 617, 136 C. A. 2d 449....
“The term ‘fanner’ means a man who cultivates a considerable tract of land in some one of the usual recognized ways of farming. O’Neil v. Pleasant Prarie Mut. Fire Ins. Co., 38 N. W. 345, 346, 71 Wis. 621.”

Our attention has been called to no case, 'and we have found none holding that the word farmer may be construed to mean merchant.

If the General Assembly had intended that in the circumstances of this case a farmer should be considered a merchant and therefore liable on an alleged contract to sell his commodities, which he did not sign, no doubt clear and explicit language would have been used in the statute to that effect. There is nothing whatever in the statute indicating that the word “merchant” should apply to a farmer when he is acting in the capacity of a farmer, and he comes within that category when he is merely trying to sell the commodities he has raised. '

Notes 1 and 2 under Ark. Stat. Ann. § 85-2-104 (1961 Addendum), (Uniform Commercial Code) defining merchant indicate that' this provision of the statute is meant to apply to professional traders. In Note 1 it is stated: “This section lays the foundation of this policy defining those who are to be regarded as professionals or ‘merchants’ ...” It is said in Note 2: “The term’merchant’ as defined here roots in the ‘law merchant’ concept of a professional in business. ...”

The following are some definitions of the word merchant taken from Words and Phrases, Yol. 27:

“A merchant is defined to be, in one sense, a trader, by Webster, and by Burrill and Bouvier in their Law Dictionaries, and a person who is engaged in farming and stock raising is not a merchant. In re Ragsdale, 20 Fed. Cas. 175. . . .
“ ‘The term “merchants” includes those only who traffic, in the way of commerce, by importation or exportation, who carry on business by way of emption, vendition, barter, permutation, or exchange and who make it their living to buy and sell by a continued vivacity or frequent negotiations in the mystery of merchandise, and does not include a farmer who sells what he makes.’ Dyott v. Letcher, 29 Ky. (6 J. J. Marsh) 541, 543.”

In construing a statute its words must be given their plain and ordinary meaning. Hancock v. State, 97 Ark. 38, 133 S. W. 181; Fort v. City of Brinkley, 87 Ark. 400, 112 S. W. 1084.

The judgment is affirmed.


source: Caselaw Access Project

author: Jim Johnson, Associate Justice.

license: Public Domain

text:
    McGehee Planting Co. v. Jones.
    5-3680
    395 S. W. 2d 553
    Opinion delivered November 15, 1965.

      D. A. Clarke, for appellant.

      Smith & Smith, J. F. Wallace, Clifton Bond, for appellee.
   Jim Johnson, Associate Justice.

This suit involves enforcement of a landlord’s lien.

Mrs. George Heathcock, now deceased, leased about 100 acres of farm land to Otis Lunsford in 1958 for $1500, payable November 15, 1958. Appellant McGehee Planting Company furnished Lunsford with the money to raise cotton and soy beans. Lunsford harvested and sold his cotton crop to Bell Brothers Cotton Company (appellees) and the soy beans to appellee Dreyfus Company. Lunsford delivered the checks from these sales to appellant in partial. payment of his furnishing account for 1958. The $1500 rent was not paid. Mrs. Heathcock died in November, 1958. On May 14, 1959, appellee heirs of Mrs. Heathcock filed suit against Lunsford, appellant McGehee, appellees Bell and appellee Dreyfus in Desha Circuit Court, McGehee District, to enforce the landlord’s lien against crops grown by' Lunsford. Writs of attachment issued, all parties answered separately. On November 1, 1960, on motion of the Heathcock heirs, the cause was transferred to Desha Chancery Court. The complaint, was amended January 14, 1961, answered, amended again. Bell cross-complained for damages occasioned by the writ of attachment which forced Bell to repurchase nine bales of cotton in storage at the Federal Warehouse and Compress Company. In time the case was heard; the court issued detailed interim findings while the matter was under submission prior to its decree of November 16, 1964. The court gave appellee heirs judgment against Lunsford for $1500; dismissed their action against appellee Bell; gave Bell judgment against appellee heirs for $295.20; denied Dreyfus’ plea for damages from appellee heirs; dismissed their action against Dreyfus; granted appellee heirs judgment against MeGehee if Lunsford failed to pay the $1500 judgment or any part of it.

MeGehee Planting Company has appealed, urging three points for reversal. Appellee heirs cross-appealed.

Appellant first urges that the trial court erred in overruling the plea of MeGehee Planting Company based upon a defect of parties plaintiff. In its findings the court stated that it assumed that the pleading which appellant considers as raising the issue of defect of parties is a pleading designated “Motion to Dismiss” •filed in 1959 when the action was pending in circuit court, that the pleading was called to the attention of the chancery court for the first time in 1963 when appellant filed its brief, a year after the cause had been heard and taken under submission. (The pleading alleged in part that the court did not have jurisdiction of the cause or the defendants, and that the complaint failed to state a cause of action.) The chancellor found that the plea should be denied because, among other reasons, it came too late and the plea of defect of the parties was not properly raised.

The second point is that the trial court’s findings of fact do not support a judgment against appellant. The court found that appellant has in its possession the pro-, ceeds of the .crops grown on the Heathcock place by Lunsford; that the proceeds were received by appellant with knowledge of the landlord’s lien (it is undisputed that appellant knew of the landlord’s lien and had advanced Lunsford money in 1956 and 1957 to pay the landlord); that appellant was not a bona fide holder of the proceeds; that courts of equity have jurisdiction to enforce the lien; appellee heirs have not waived the lien nor are they estopped to assert it; an equitable lien should be impressed on the proceeds in appellant’s hands, and a judgment granted appellee heirs against appellant so that if Lunsford does not pay the $1500 or the judgment not satisfied by execution, then execution may issue against appellant for any deficiency.

Appellant’s third point is in effect the same as that urged by appellee heirs on cross-appeal. Appellant argues, in. the alternative, if judgment is sustained against appellánt, judgment should be rendered against. Bell and Dreyfus for two-thirds of the amount adjudged to be due appellee heirs. The trial court found that Bell and Dreyfus were innocent purchasers, that the attachment of the cotton was unlawful, the attachment should be dissolved, appellee heirs should be liable to Bell for such damages as Bell sustained by reason of the unlawful attachment, and both Bell and Dreyfus should be protected as innocent purchasers of the cotton and soybean crops.

"The testimony was not designated,” to quote apellant’s brief, "nor transcribed for the reason that the trial court’s findings of fact detail the evidence in a most comprehensive manner and appellant takes no appeal therefrom. ’ ’

Appeals from chancery are tried de novo on the record in this court. From the limited record in the case at bar we cannot say with confidence that the testimony fails to support the findings of the chancellor either as to the law or the facts — the testimony is not before us. It follows, therefore, that the decree must be affirmed on both direct and cross-appeal.


author: Frank Holt, Associate Justice. Jim Johnson, Associate Justice, Cakleton Harris, Chief Justice,

text:
    Mann v. City of Heber Springs.
    5141
    395 S. W. 2d 557
    Opinion delivered November 15, 1965.

      C. E. Blackburn, for appellant.

      Bruce Bennett, Atty. General, By: Clyde Calliotte, Asst. Atty. General, for appellee.
   Frank Holt, Associate Justice.

Appellant was charged by information with violating the liquor laws. The jury acquitted the appellant of the charge of possessing liquor for sale in a dry county (second offense) in violation of Ark. Stat. Ann. § 48-811.1 (Repl. 1964). He was found guilty of possessing-more'than one gallon of intoxicating liquor in a dry county in violation of Ark. Stat. Ann. § 48-918. The court fixed appellant’s punishment at a fine of $200.00, plus costs. For reversal of the judgment upon this verdict the appellant contends that the “court erred in failing to suppress the evidence obtained in the search and.seizure either under an admittedly void search warrant, or the search of an automobile without a warrant.” This motion to suppress was seasonably made.

The local police secured a search warrant to search appellant’s combination residence and business for contraband liquor. The appellant was present when the officers arrived at his premises. The search warrant ■was exhibited to him and an unsuccessful search was made. It is admitted that the search warrant was invalidly issued as being in conflict with Ark. Stat. Ann. § 22-753 (Kepi. 1962). Immediately following this fruitless search of his premises, the appellant gave the officers the keys to his car in compliance with their request. The car was parked in the street in front of his premises. Appellant accompanied the officers to his parked car where he assisted in opening the trunk compartment. There a case containing 48 half-pints of illegal liquor was discovered.

It is ably urged by the state that appellant’s action in surrendering the keys and participating in the opening of the trunk was a consent to the search and thus constituted a waiver of any constitutional requirements of a search warrant. In support of this contention we are cited to numerous cases including our recent decision in Williams v. State, 237 Ark. 569, 375 S. W. 2d 375. In this case the information that stolen property was stored in a trailer was volunteered by the accused following which the exact location of the trailer was “pointed out” to the officers and assistance rendered in removing the stolen articles. We cannot agree that this case or others cited are controlling under the facts in the case at bar. In our view there was no knowledgeable consent to the search of appellant’s parked automobile at his premises. This exploration was merely a continuation of and conteniporaneous with a search made under an admittedly invalid warrant. This invalidity was unknown to appellant at the time of the search. In 79 C. J. S. Searches and Seizures § 62 (b) p. 820-21 it is said: “* * “* Voluntary consent requires sufficient intelligence to appreciate the act as well as the consequence of the act agreed to. Since the consititutional guaranty is not dependent on any affirmative act of the citizen the courts do not place the citizen in the position of either contesting an officer’s authority by force or waiving his constitutional rights, but instead they hold that a peaceful submission to a search or seizure is not a consent or an invitation, thereto, but is merely a demonstration of regard for the supremacy of the law.”

The state further contends that the search of appellant’s automobile Avas reasonable and, therefore, not in violation of constitutional restrictions. It is true that not all searches and seizures Avithout a warrant are prohibited. Only those searches and seizures which are unreasonable are prohibited by the Fourth Amendment to the United States Constitution and Art. 2, § 15, Arkansas Constitution. We recognize the rule that an automobile may be searched AA’ithout a warrant where there is reasonable or probable cause for the belief of the officers that contents of the automobile offend against the laA\r. Burke v. State, 235 Ark. 882, 362 S. W. 2d 695. There AAre said that the total circumstances “all add up to probable cause for the search.” These circumstances consisted of the reputation of the defendant, as a bootlegger, his vehicle moving upon the road with the appearance of being heavily loaded, and a strong odor of “wildcat AA’hiskey in the car” thus noticeable to the senses of the officers.

In the case at bar the only evidence in support of the existence of reasonable or probable cause to search appellant’s automobile was appellant’s reputation as being a bootlegger, a “tip” from a filling station operator to an officer earlier in the day that appellant had purchased gasoline for his car, and that appellant’s parked car looked like it was “a little heavy loaded in the hack.” It cannot he said that the appearance of the automobile was any different when the officers entered and searched appellant’s premises than afterwards. It is undisputed that it was just as practical to secure a search warrant for the stationary vehicle as it was for appellant’s house.

As was said in United States v. Roberts, 223 F. Supp. 49: ‘ ‘ * # * In the last analysis the question of the validity of a given search and seizure must be determined by reference to whether that particular search and seizure were reasonable or unreasonable, and that determination must be made on a case to case basis in the light of all the surrounding facts and circumstances.” In the case at bar there was testimony that the car was searched by the officers because “we didn’t find any whiskey inside the building.” It can fairly be said from the evidence that the failure to discover contraband whiskey in appellant’s dwelling was the compelling basis for extending the exploratory search to appellant’s parked automobile.

We hold that it was error to refuse appellant’s motion to suppress the evidence. Reversed and remanded.

Harris, C. J. dissents.

Johnson, J., concurs.

Jim Johnson, Associate Justice,

(concurring). I agree with the majority view. This concurrence is written for the purpose of emphasizing the fact that the protection of the constitutional rights of the least deserving of us is in reality the protection of the constitutional rights of all of us.

Bitter experience through the ages has taught men desirous of freedom that there could be no freedom without the recognition that free men must possess certain inherent and indefeasible rights, amongest which is the right to be secure in their persons, houses, papers and effects.

The authors of our Bill of Rights attested to this great truth when they wrote in the fourth amendment to the Constitution of the United States:

‘ í iji^g 0f fire people to' be secure in their persons, houses, papers, and effects, against unreasonable searches, and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”

The framers of the constitutions of all of the states have incorporated similar language with the same import in the constitutions of their respective states. The provision in our constitution is Article 2, Sec. 15, and is almost identical to’ that contained in the Constitution of the United States.

For a number of years this court, while frowning upon unlawful searches and seizures, effectively encouraged the practice by permitting the introduction of evidence illegally obtained in cases being tried by persons who had sworn to uphold the very constitution which specifically prohibited the practice. (For example, see Venable v. State, 156 Ark. 564, 246 S. W. 860; and Woolem v. State, 179 Ark. 1119, 20 S. W. 2d 185.)

I was proud on May 25, 1959, when the majority of this court concluded in the case of Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816, that th„e blindfolds of impartiality should be placed back on the Goddess of Justice. There we said:

“The right to be secure against unreasonable searches is guaranteed by Art. 2, Sec. 15 .of our Constitution and also, in essentially the same language, by the 4th Amendment to the United States Constitution, yet our Court has followed a rule at variance with the Federal rule regarding the admissibility of evidence obtained by search without a warrant. After careful consideration we have concluded that we will re-examine our former decisions in this connection with a view to changing our announced rule when the question is properly presented to us again.”

This conclusion was reached not in anticipation of nor to conform with some radical decision of the United States Supreme Court but because it was right, and just and proper and the only way to insure the protection of the constitutional rights of all the people to be secure in their persons, houses, papers and effects.

Following the Glubb decision but prior to a proper presentation of the question for our further determination, the United States Supreme Court in the case of Mapp v. Ohio, 367 U. S. 643, held that the fourth amendment to the Constitution of the United Staes through the agency of the due process clause of the fourteenth amendment governs the subject of searches and seizures in state proceedings.

Admittedly these two opinions have imposed the responsibility upon all law enforcement officers of this state to comply with the simple rules requisite of a lawful search and seizure. It should not be discouraging to our dedicated officials to require of them that they obey the very law they are sworn to uphold. Under our constitutional system the general public has the right to expect no less and demand no more.

In the case at bar, obviously appellant committed the crime with which he is charged. This would seem to place him in the category of those least deserving. This is not an unusual situation. It frequently becomes our unpopular duty and responsibility as an appellate court when error is demonstrated to reverse cases in which we are convinced beyond doubt of the guilt of the accused. If our function was merely that of an appellate jury we would quicldy affirm these cases and who could say that the accused would not deserve the punishment. I am sure that this simple system prevails in some countries in the world but not in the United States. Ours is a government of laws and not of men. The least of us are clothed with every constitutional protection afforded the mighty. The precedent set today by the denial of those rights to the guilty could well be the vehicles through which the innocent are convicted tomorrow.

For these reasons and those stated in the majority opinion, I concur.

Cakleton Harris, Chief Justice,

(dissenting). I am unable to agree with the manner in which this case is disposed of by the majority, for it is extremely difficult for me to distinguish this case from Williams v. State, 237 Ark. 569, 375 S. W. 2d 375, mentioned by the majority in their opinion. There, one of the defendants was arrested, and the officers attempted to search his home; however, the defendant’s wife would not permit the officers to enter until they had obtained a search warrant. Thereafter, the officers obtained a search warrant, but the warrant was clearly void, and of no effect, and this court so found. In the instant case, it is likewise conceded that the search warrant was void. With the search warrant in Williams, the officers proceeded to make a search of the house, but found nothing. Again, • we have the same situation present in the instant case. Defendant’s house was searched, but nothing was found. In Williams, this court then said:

“* * * so such search, though illegal, obtained no evidence; and thus the search of the Holeman house passes out of the case. If any evidence had been obtained in the Holeman house we would promptly hold that such was illegally obtained. ’ ’

Likewise, I feel that the search warrant passes out of the picture in the present case, though the majority is holding that the search of appellant’s automobile was based on the warrant, being “merely a continuation of and contemporaneous with a search made under an admittedly invalid warrant.”

Again, referring back to Williams, the state’s evidence disclosed that the defendants were arrested and charged with burglary and grand larceny. Some of the . defendants told the officers that stolen property was stored in a trailer in Faulkner County. Two accompanied the officers, and pointed ont the house trailer; one of the defendants unlocked the door to the trailer, and nearly all of the stolen property was found therein. On trial, appellants moved to suppress the evidence obtained from the search, contending that the search was unlawful, and in violation of their constitutional rights. This court said:

* * Were the appellant’s constitutional protections against unreasonable search and seizure violated by the officers thus obtaining the articles from the •trailer and detailing the evidence concerning same? Here, there was evidence, not only of waiver and consent, but also of active participation in the search; so there is no merit to the contention of the defendants that their rights against unreasonable search and seizure were violated insofar as concerns the articles in the trailer. In 79 C. J. S. p. 816 et seq., ‘Searches and Seizures’ § 62, there is a discussion of waiver and consent; and the holdings from the various jurisdictions — including the United States Supreme Court — are summarized:
“The constitutional immunity from unreasonable searches and seizures may be waived, as by a voluntary invitation or consent to a search or seizure. Thus individuals may waive their immunity to illegal searches of their persons, possessions, or dwelling houses, as well as to the illegal search of their premises, places of business, and searches and seizures of books, papers, or records. Hence, one who has thus consented to a search cannot thereafter complain of irregularities in the search warrant, or question its sufficiency or the manner of its issuance, since an invitation or consent to the search dispenses with the necessity of a search warrant altogether. ’ ’

It is thus clearly established that this court, as well as the Federal courts, has said that consent to a search dispenses with the necessity of a search warrant.

Let it be remembered that the Constitution does not protect from all searches (without a warrant), but only those that can be considered unreasonable. There are then only two simple questions in this case. First, did appellant consent to the search? Second, was the search reasonable, or was there a proper cause to make same? If either of these questions can be answered “Yes”— then, in my view, this case should be affirmed. Actually, I think both questions can be answered in the affirmative. Here, Melvin Mann, the appellant, unlocked the trunk of the car himself, and there is no evidence that he objected, in any manner, to the search. As in Williams, the defendant not only consented, but even participated in- the search. Likewise, I am of the opinion that the evidence reflects the search to be reasonable, and based upon probable cause, i.e., the officers had sufficient reason to believe that the car contained whiskey.

Let us first remember that, clearly, appellant had the reputation of being a bootlegger. This is even competent evidence in the trial of a. defendant for engaging in the illicit trade of intoxicating liquors. Ark. Stat. Ann. § 48-940 (Repl. 1964) provides that the general reputation of a defendant for moonshining or bootlegging shall be admissible in evidence in prosecuting violations of the liquor control act. Chief Bolin testified that he had been informed that appellant was in possession of illegal whiskey, and also testified that he had information that Mann was bringing a load of whiskey into Cleburne County. It develops that,Bolin received this information from other officers, and these officers, in turn, received information from a filling station operator, which information, the majority state, only amounted to the fact that Mann had filled his automobile with gasoline, and had gone out of town. I do not know the language used by the filling station operator in giving the officers the tip, but it is certainly definite that, whatever the language used, the officers gained the impression that Mann had left town to obtain a load of whiskey. The information was explicit enough that they, shortly thereafter, reported to the chief that they had learned that appellant was bringing a load of whiskey into the county. The police chief testified that Mann’s automobile seemed to be a little “heavily loaded” in the back, and this testimony was corroborated by Patrolman Beach, who testified, “Well, it was sitting’ down a little bit low, like a little extra weight was in the trunk. * * * ’ ’ In Burke v. State, 235 Ark. 882, 362 S. W. 2d 695, cited by the majority, this court held that an automobile was properly searched for illegal whiskey because the officers had reasonable or probable cause to suspect that the car contained same. There, the defendant bore the reputation of a bootlegger; the vehicle had the appearance of being heavily loaded, and a strong odor of “wild-cat” whiskey seemed to come from the car. Thus, we have only the additional circumstance in the Burke case of the smell of whiskey, and I cannot agree that that circumstance made the Burke search legal, while the search in the instance case was illegal. This is a very fine distinction — too fine, I think.

The Iieber Springs officers testified that the reason they did not search the automobile first was because they thought appellant had had sufficient time to take the whiskey into the house, and they apparently paid little attention to the car until after ascertaining that no whiskey was in the home.

I commend my brethren of the court for being zealous in protecting one’s constitutional rights, but I feel that they have gone further, in suppressing this evidence, than the court has gone in prior cases. Under recent United States Supreme Court decisions, the task of the officer in obtaining competent evidence in divers types of prosecutions has been made much more difficult; restrictions have been placed upon him; evidence that was once held admissible is now held inadmissible, and I am fearful that many of our police officers are becoming discouraged.

I think that I, too, believe in protecting one’s constitutional rights, but I am just as interested in protecting the rights of the general public. Here, we have a defendant, who, beyond question, was violating the provisions of the Arkansas Alcoholic Control Act. Here was a man who, likewise, had previously violated the provisions of this act. Here was irrefutable evidence— (forty-eight half-pints of whiskey) — that appellant held no regard for our statutory requirements. Yet, with the suppression of this evidence, appellant goes “scot free” for, of course, the state is without evidence, if this testimony of the officers, and the forty-eight half-pints, cannot be introduced.

I would affirm the conviction.

       One thing is obvious — irrespective of how he expressed it to the officers, the information given to the police by the filling station operator was accurate, as evidenced by the fact that forty-eight half-pints of “Medley Brothers” whiskey was found in the trunk.


author: Frank Holt, Associate Justice.

text:
    Wells v. Hill.
    5-3643
    396 S. W. 2d 946
    Opinion delivered November 15, 1965.
    [Rehearing denied January 10, 1966.]

      Bruce Bennett, Attorney General and Russell <& Hurley, for appellant.

      Warner, Warner, Rag on & Smith, for appellee.
   Frank Holt, Associate Justice.

This is an action to enforce liability on certain securities posted in lieu of a corporate surety bond.

- On December 21, 1960 the Securities Commissioner of the State of Arkansas duly registered Trustworthy (Investment Association, Inc. as a broker-dealer and Aubrey L. Andrews as one of its agents. This authorization expired December 21, 1961 and was not renewed by the Securities Commissioner.

On June 19, 1963 appellee was awarded a default judgment against Aubrey L. Andrews based upon Ms wrongful conduct in tbe sale of certain stock. Neither the Securities Commissioner nor Trustworthy was made a party to the action against Andrews. ’

When this default judgment was not paid by Andrews the present action, a writ of garnishment, was instituted by appellee on May 5, 1964 against the appellant Securities Commissioner alleging that he had in his possession certain securities deposited by appellant Wells on behalf of Trustworthy and Andrews in lieu of a corporate surety bond in conformity with Act 254 of 1959. The commissioner resisted the garnishment.

Appellant Wells filed a petition to intervene in the garnishment proceeding alleging ownership of the securities that had been posted with the Securities Commissioner in lieu of bond. Wells also alleged that he had made repeated demands upon the commissioner to release his securities to him and that the bond, in lieu of which the securities were posted, is no longer in effect nor subject to the present garnishment action. The petition to intervene was granted and appellee filed a response controverting the allegations. Upon a hearing the chancery court overruled a motion, based upon a two-year statute of limitation, to quash the garnishment. The chancery court dismissed the intervention holding that the judgment of appellee was a lien upon appellant Wells’ securities in the hands of the appellant commissioner.

For reversal appellants rely, inter alia, upon the two-year statute of limitation as provided in § 4(e) of Act 254 of 1959. This section requires that broker-dealers and agents post corporate surety bonds or in lieu thereof appropriate cash or securities. It further provides that:

it* * * Every bond shall provide that no suit may be maintained to enforce any liability on the bond unless brought within two (2) years after the sale or other act, upon which it is based.”

A civil suit to recover the purchase price of the security or for damages for wrongful conduct, also, is limited to two (2) years after the contract of sale. Ark. Stat. Ann. § 67-1256 (Supp. 1963); Central Investments, Inc. v. Polk, 239 Ark. 165, 388 S. W. 2d 381. Thus, the statute plainly requires that any action on the bond must be brought within two years from the date of the sale or act upon which the suit is based.

The present record does not disclose the date of the sale transaction which resulted in the default judgment. However, the authority of Trustworthy to operate as a broker-dealer, including its authorized agents, ceased to exist on December 21, 1961. According to the commissioner, Andrews’ license as an agent would have expired on March 1, 1962 if his authorization as an agent of Trustworthy had not ceased on December 21, 1961. Whether we consider either date as the cessation of Andrews’ authority as a licensed agent, it is obvious that the two-year statute of limitation upon the bond is a bar to this action. This is true because it was not until May 5,1964, the issuance of garnishment, that any action was brought to enforce liability upon the securities posted in lieu of the required bond. The legislature retained this period of limitation in a 1961 amendment to the Securities Act. Act 248 of 1961 [Ark. Stat. Ann. § 67-1238 (Supp. 1963)]. We see no valid distinction between a corporate surety bond and securities posted in lieu thereof in the application of this statute of limitation.

Reversed and remanded with directions to enter a decree not inconsistent with this opinion.


author: Paul Ward, Associate Justice.

text:
    Trinity Universal Ins. Co. v. Stobaugh.
    5-3602
    395 S. W. 2d 24
    Opinion on denial of rehearing delivered November 15, 1965.
   Paul Ward, Associate Justice.

Appellant’s petition

on rehearing raises two points which merit further comment.

It is again argued that we erred in not applying the law of Texas in construing the policy sued on. Conceding that in many cases this might be true, we do not think it is true under the facts in this case because it appears Mrs. Estes had good reason to think no claim would be made by appellee. Therefore, it became a jury question as to whether or not Mrs. Estes acted as an ordinary prudent person in failing to give prompt notice. According to Appleman (cited in the original opinion) this vieiv has been approved by decisions in more than a dozen states, and (so far as we can ascertain) is has not been disapproved by any Texas decision.

Appellant renews its contention that we erred in approving the judgment assessing the 12% statutory penalty against it and allowing appellee an attorney’s fee. This contention is based on the fact that appellee (Syble Stobaugh) was not a “holder” of the policy as provided in Ark. Stat. Ann. § 66-3238 (Supp. 1963). To support that contention appellant relies on the case of State Farm Auto Insurance Company v. Pennington, 215 F. Supp. 784. That case however refutes rather than sustains appellant’s position. In the cited case “Summer-ville” (the injured party) is the counterpart of appellee (the injured party) in the instant case, yet the Court there granted a judgment in favor of Summerville for penalty and attorney’s fee just as is here granted to appellee — all in accord (in both instances) with the provisions of the above mentioned statute.

Original opinion P. 746.


author: Carleton Harris, Chief Justice.

text:
    Smith v. U. S. F. & G. Co.
    5-3661
    395 S. W. 2d 749
    Opinion delivered November 22, 1965.

      Brown, Compton & Preioett, for appellant.
    . Shackleford and Shackleford, for appellee.
   Carleton Harris, Chief Justice.

The issue in this case is whether Wayne Smith, appellant herein, is entitled to statutory penalty and attorneys’ fees, after recovering $2,462.10 from, appellee, United States Fidelity and Guaranty Company.

Appellant is a building contractor, and, during the construction of a gymnasium for the Smackover School District, carried a policy, together with endorsement, with appellee company, which insured him against certain losses arising from said construction. While the building was in the process of being constructed, a roofing joist, or joists, fell, which caused extensive damage to the building, and resulting loss to appellant. Suit was instituted by Smith, wherein he set out that he had incurred loss in the total amount of $3,229.97, as a result of the afore mentioned casualty, and had made demand upon the company for the payment to him of this amount, less $500.00 deductible, as provided by the terms of the policy It was further asserted that the company had refusec payment. The prayer asked for judgment in the amounof $2,729.97, together with interest, statutory penalty and attorneys’ fee. Appellee denied that Smith’s loss was covered under the policy and endorsement, and denied that appellant was entitled to recover in any amount. On trial, the jury returned a verdict in the amount of $2,462.10. Appellant filed his motion for attorneys ’ fee and penalty, alleging:

“That from the time of the loss to the time of the claim, to the time of the filing of the suit and until the trial of this action the defendant refused to pay the plaintiff solely upon the basis of the defendant’s denial of coverage under the provisions of the exclusions contained in said builder’s risk special extended coverage endorsement. There was no denial of payment by the defendant based upon the amount of loss claimed by the plaintiff and the defendant made it known to the plaintiff that it would not pay any loss under its position of no coverage. ”

The company responded, asserting that Smith had continually made a demand for payment in an amount which was more than he was entitled to recover, and he had never amended the amount that he was claiming as damages; the company denied that appellant was entitled to a recovery of statutory penalty and attorneys’ fees. The trial judge denied the motion, and appellant has appealed that portion of the judgment denying the recovery of these items.

Appellant commences his brief by stating that he is aware of our long line of cases in which we have held that before a plaintiff is entitled to recover the 12% statutory penalty and reasonable attorneys’ fees, he must first recover from the insurance company the amount for which he sued. See Kansas City Fire & Marine Ins. Co. v. Baker, 229 Ark. 130, 313 S. W. 2d 846, and numerous cases cited therein. However, appellant argues that the rule should not be applicable in every case, and points out that the statute on this subject does not require a recovery of the exact amount sued for before the penalty and attorneys’ fee attach. Our original statute was passed in March, 1905, and has been amended four times (Ark. Stat. Ann. § 66-514 [Repl. 1957]), the last amendment being added by the General Assembly of 1955. The statute, as amended, was re-enacted, almost word for word, by the 1959 General Assembly, and is presently found as a part of the law of this state under the chapter heading, “Insurance Contracts.” Appellant is correct in his assertion that there is no language which sets out that the exact amount sought must be recovered. However, this court has always held, and we think with logic, that one is not entitled to recover (penalty and attorneys’ fee) if he seeks, or makes demand for, more than he recovers. This holding goes as far back as the year 1909, when in Pacific Mut. Life Ins. Co. v. Carter, 92 Ark. 378, 123 S. W. 384, we said:

“But the act makes the company liable for failure to pay the loss 'after demand made therefor.’ The statute thus contemplates that there shall be a demand. A recovery for penalty and attorney’s fee cannot be had when complaint makes demand for more than he is entitled to recover. It could never have been the purpose of the Legislature to make the insurance companies pay a penalty and attorney’s fee for contesting a claim that they did not owe. Such an act would be unconstitutional. The companies have the right to resist the payment of a demand that they do not owe. When the plaintiff demands an excessive amount, he is in the wrong. The penalty and attorney’s fee is for the benefit of the one who is only seeking to recover after demand what is due him under the terms of his contract, and who is compelled to resort to the courts to obtain it.”

As previously stated, this holding has been reiterated dozens and dozens of times. Appellant contends that this rule should not apply when the defendant insurance company denies all liability, and he is of the view that the rule should only apply when the company has admitted liability, but is differing with the claimant only as to the amount to he recovered. He argues that our ruling ‘ ‘ results in an insured backing away from various items of his claim in order not to sacrifice his statutory right to be made whole by the assessment of the penalty and the attorney’s fee.” As pointed out by appellee, this argument by appellant works both ways, for, if the rule were changed in the manner urged by appellant, the insurer might well also back away from a defense of non-coverage, exclusion, or any other ground of defense, except a contention that the amount claimed is excessive. Further, appellant argues that the statute should be governed by the facts and circumstances of each particular case, and the allowance of the penalty and attorneys’ fees should be left to the discretion of the trial court. Of course, this could mean an allowance of attorneys’ fees and penalty varying from a 50% recovery (or perhaps any recovery) to a 99% recovery, depending somewhat on the views of the particular court before which the case was tried. Such procedure, it would seem, might well lead to confusion, and certainly there would be no uniformity of action throughout the state.

Actually, without knowing exact percentages, we think it is very likely that most disputes that occasion litigation between a claimant and his insurance company are based upon a defense that no coverage is afforded under the particular circumstances at issue. But we see no need to enter into a detailed discussion of the merits, or demerits, of the rule at issue, for we think that, if a change is to be made, it should be made by the General Assembly. As earlier pointed out, this interpretation of the. statute was rendered nigh on to sixty years ago, and the General Assembly has had repeated opportunities to change the law during that period of time. In fact, as herein mentioned, four amendments have been added to this section, but the Legislature has not seen fit to make any change relating to the question presented in this litigation. To the contrary, the General Assembly re-enacted this exact statute (as amended) in 1959.

We decline to overrule, or modify, the numerous cases which hold that a plaintiff must recover the amount demanded before lie is entitled to penalty and attorneys ’ fee.

Affirmed.

       It is obvious, in this particular instance, that the jury disallowed the profit sought by appellant, which amounted to $267.86.

       The amendments that were added over the years did not relate to the question here involved.

       The section dealing with penalty and attorneys’ fee is Ark. Stat. Ann. § 66-3238 [Supp. 1963].


text:
    Purtle v. Wilcox
    5-3673
    395 S. W. 2d 758
    Opinion delivered November 22, 1965.

      Terral, Rawlings <& Matthews and John I. Purtle, for appellant.

      Rolland A. Bradley, for appellee.
   Carleton Harris, Chief Justice.

The question in this litigation is whether the complaint in question, together with amendments, is sufficient to state a cause of action as against a demurrer.

Billy J. Purtle, appellant herein, instituted suit against Kenneth Wilcox, appellee herein, and Mobil Oil Company, seeking a judgment in the sum of $4,000.00 for his interest in certain property, and the further sum of $1,000.00 because of alleged damages suffered. The complaint sets out that appellant and the Mobil Oil Company, on September 12,1962, executed a written contract, ■wherein appellant became consignee for consignor, Mobil Oil Company, to handle their products in and around Conway, Arkansas. A copy of the contract was attached to the complaint as Exhibit “A”, and made a part thereof. The complaint further recites that the relationship of consignee and consignor existed until September 21, 1964, “at which time consignor attempted to end said contract by checking plaintiff out and entering into another contract whereby defendant Kenneth Wilcox was purportedly made the successor consignee.” The suit is largely predicated on Section 16 of the contract, which reads as follows:

“Consignee shall not sell, grant options in respect of, nor, except in the ordinary course of conduct of Consignee’s business, lease or otherwise dispose of any properties used in connection therewith without giving Consignor a sixty (60) day option within which to purchase or otherwise acquire the same on same terms and conditions, as those on which the Consignee is willing to make such disposition to any other party. Consignee shall give Consignor prompt written notice of said terms and conditions and shall submit a full and accurate copy of any bona fide offer received by Consignee, sworn to by Consignee as being a true copy of such offer. If Con7 signor exercises its option, it shall do so in writing sixty (60) days after receipt of such notice and the closing shall take place at Consignor’s office at the above address thirty (30) days after the exercise of the option, whereupon Consignee shall, in the case of a sale, deliver to Consignor a full covenant and warranty deed, assignment or bill of sale as the case may be, conveying a good, marketable and clear title subject only to the liens and encumbrances which are specifically excepted in the proposed terms and conditions or, in the case of any other disposition, deliver to Consignor an instrument or instruments in form and substance satisfactory to Consignor and sufficient to transfer the interest proposed to he disposed of.”

Appellant asserts:

‘ ‘ That in accordance with item # 16 ‘ options ’ in said contract, the plaintiff conveyed to the defendant, Mobil Oil Company, a bona fide offer from E. D. Houston to purchase plaintiff’s interest in said business.' That said provision gave defendant, Mobil Oil Company, an option to purchase or otherwise acquire the plaintiff’s interest on the same terms and conditions as the offer submitted to them by consignee. That consignor refused to accept E. D. Houston as consignee and instead contracted with Kenneth Wilcox to serve as their consignee.
‘ ‘ That the action of consignor amounts to an exercise of the option, and they are bound to pay for said interest the same amount offered by E. D. Houston. That the consignee has turned over all his interest to consignor and Kenneth Wilcox and is willing to execute a bill of sale or deed or other instrument.to either or both of the defendants upon their tender of the sum of $4,000.00, but that the defendants have failed and refused to perform their part of the contract.
“That the action of the consignor in refusing to accept E. D. Houston as consignee was arbitrary, capricious and done with the intent to deprive the plaintiff of a fair and reasonable amount of money for his interest in said business. That the said E. D. Houston was a fit and proper person to act as consignee.”

Subsequently, the complaint was amended to show the Mobil Oil Company as a division of Socony-Mobil Oil Company, a New York corporation. Thereafter, Wilcox demurred to the complaint, and Purtle amended, alleging:

“That the defendant, Kenneth Wilcox, has conspired with the defendant, Mobil Oil Company, in an attempt to defraud the plaintiff out of his business and property.
“That the defendants are presently jointly engaged in acts depriving the plaintiff of benefits due him under the contract attached, to the original Complaint, and that unless they are enjoined from such acts, the plaintiff will be repeatedly damaged, and in order to avoid a multiplicity of suits, they should be enjoined from so acting. ’ ’

Both Mobil and Wilcox then filed separate demurrers to the complaint as amended, and thereafter, Purtle filed a third amendment to his complaint. In this amendment, he alleged, inter alia, that, after becoming consignee :

“* * * he purchased a 1959 Bodge, two-ton chassis as a replacement for the 1949 Ford, and that the difference in value between the two is $1,000.00; that he transferred the tank from the old truck to the replacement at a cost of $300.00; that he improved four service sites at a cost of $1,450.00 and that the defendants will receive the benefit of these improvements in the future; and that he purchased two air compressors at a cost of $350.00, both of which he still has on hand, but for which he has no use for.
“That he contracted and added one service station and several farm accounts to the consignor’s customers; and that he ivas out for labor and materials and other expenses the sum of $1,000.00 for these items.
“That he greatly increased the volume of business being done By Consignee and openly solicited and recommended their products to the public.
‘ ‘ That the defendants have acted together to unlawfully deprive the plaintiff of his properties under the contract and leave him with personal property on his hands which has little value to him as they have put him out of the oil and gas business. * * *
“That it is impossible for the plaintiff to recover and sell or use the expenses, equipment, and properties for installing underground equipment át service locations. That the defendants have possession and use of these properties and refuse to surrender possession or pay for same.”

Again, separate demurrers were filed by both the company and appellee. On January 4, 1965, the court sustained the demurrer filed to the complaint, as amended, by Wilcox, finding that a cause of action had not been stated ■ against appellee. Purtle’s complaint, as amended, against Wilcox was thereby dismissed. This appeal is from the decree so entered, Purtle contending that his allegations state a cause of action.

Appellant apparently construes section 16 to mean that if he (Purtle) obtains an offer from a third person to purchase his interest in the business, this offer must be communicated to Mobil Oil Company, which would then be required to purchase appellant’s interest under the same terms and conditions as Purtle would receive under the offer from the third party. Also, Purtle is apparently asserting that he has a right to name his successor consignee. Here, he alleges that an offer had been received from one E. D. Houston to purchase his interest, and that Mobil “refused to accept E. D. Houston as consignee and instead contracted with Kenneth Wilcox to serve as their consignee.

‘ ‘ That the action, of consignor amounts to an exercise of the option, and they are bound to pay for said interest the same amount offered by E. D. Houston.”

Appellant has erroneously construed the contract. As we see it, Section 16 is a section designed solely for the benefit of the oil company, and permits it at its option to purchase, or otherwise acquire, under the same terms (as offered by the third party) properties used in connection with the business. The company is not required to meet any offer made, but has the privilege of doing so, if it desires to exercise the option. We find no language at all that could be construed as giving appellant the right to name his successor consignee.

Section 19 provides that either party has the right to terminate the contract at any time. Accordingly, appelleo, under the facts alleged in the complaint, as amended, could not be held responsible for “putting plaintiff out of business.”

In addition, the allegations are not legally sufficient to maintain an action. As stated in Ocala Loan Company v. Smith (Florida), 155 S. 2d 711:

“The complaint must be so framed as to allege the wrong complained of with sufficient certainty to clearly apprise the court and the defendant of the nature of the claim asserted. Mere legal conclusions are fatally defective unless substantiated by sufficient allegations of ultimate fact; and every fact essential to the cause of action must be pleaded distinctly, definitely, and clearly. * * *
“The requirements governing fraud apply to averments charging conspiracy.”

In Bryant v. Motors Ins. Corp. (Ga.), 134 S. E. 2d 905, the court held that, in an action against an automobile dealer based on fraudulent misrepresentation regarding insurance, against insurer on insurance contract, and against finance company based on conspiracy, the finance company’s general demurrer was properly sustained for failure to specifically allege facts constituting the fraud and how the finance company was involved therein. Numerous other cases from various jurisdictions are to the same effect. Here, appellant asserts that appellee had conspired with the oil company in an attempt to defraud Purtle out of his business and property, but no specific acts, or details, of the alleged conspiracy are set forth, and the allegation of fraud is a mere legal conclusion, insufficient to support the complaint against a demurrer.

For the reasons enumerated, the decree is affirmed.

It is so ordered.

       In equity, written instruments filed as exhibits to the pleadings are considered a part thereof, and control the averments. Arkansas Power & Light Company v. Kerr, 204 Ark. 238, 161 S. W. 2d 403.

       Mobil Oil Company is not involved in this appeal, but the record reflects that it subsequently filed an answer, and the case proceeded to trial. The court found that there was a mutual termination of the contract after negotiations for termination were initiated by appellant.


author: Ed. F. McFaddin, Associate Justice.

text:
    Urban Renewal Agency of The City of North Little Rock v. Shaw.
    5-3642
    395 S. W. 2d 741
    Opinion delivered November 22, 1965.

      Byron B. Bogará, for appellant.

      Fred Kewth, Martin, Dodds & Kidd, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is an eminent domain proceeding. The appellant, acting under Ark. Stat. Ann. § 19r3056 et seq. (Repl. 1956), took the property of the appellees. The Chancery Court awarded the appellees $57,150.00 for the property taken and the appellant prosecutes this appeal urging the two points which we will consider in the order listed:

"1. The award of $57,150.00 as the reasonable market value of the property taken as of March 4, 1964, is excessive and the award is against the preponderance of the evidence.
“2 It was error for the Court to inspect the property without the knowledge and consent of the parties to the suit, at a time when the property had been materially changed by improvement of the property.”

I. Excessive Atoará. The appellant filed action in the Pulaski Circuit Court on April 29, 1963, seeking to acquire the lands of the appellees, made a deposit of $10,100.00, and sought immediate entry on the lands. However, before entry, appellant withdrew the deposit with the permission of the Court and obtained cancellation of the right of immediate entry. When the appellees (landowners) by proper proceedings denied any necessity for the appellant to take the lands, the Circuit Court transferred the proceedings to the Chancery Court; and in that forum the cause proceeded to trial. On March 4, 1964 the appellant renewed its tendered deposit of $10,100.00 and obtained an order of the Chancery Court permitting immediate entry on the land. Thus the question of the value of the land is the value on March 4, 1964, the day it was actually taken. On that issue the cause was tried on evidence ore tenus in the Chancery Court and resulted in a decree finding the value to be $57,150.00.

The appellant claims the said amount is excessive; but we cannot say that the finding of the Chancery Court is against the preponderance of the evidence. Louis C. Cohen, whose qualifications as a real estate appraiser were admitted by the appellant, testified that he had examined the property prior to March 4, 1964, and again a few days before the trial on November 5, 1964. He testified:

“Q. What would the total value of the lots be?
“A. $61,600.00.....
“Q. Mr. Cohen, is this value based on the highest and best use to which the property may be put?
“A. Yes, sir.
“Q. And in your opinion what is the highest and best use for the property?
"A. Either as a medium high rise apartment or medium high density and also small office building, either use.
“Q. Mr. Cohen, this property is just a short distance West of Main Street there, is it not?
“A. Yes, sir.”

Bill Hood, whose qualifications as a real estate appraiser were likewise admitted by the appellant, testified that the value of the property on March 4, 1964 was $61,250.00. As to the use of the property, he testified:

“Q. In your opinion what is the highest and best use to which these properties can be put. "What was it as of March 4,1964?
“A. For office, moderately high density apartment or parking.....”

Raymond E. Block, Sr., whose qualifications as a real estate appraiser were likewise admitted by the appellant, testified that he was familiar with this property and that as of March 4, 1964 the value of the property was $75,000.00 as a maximum and $56,250.00 as a minimum. This occurred:

“Q. In your opinion what is the highest and best use for this property?
“A. It would be ideal for offices and light commercial property.”

"While the appellant by cross examination endeavored to weaken the testimony of the said three real estate appraisers, and produced competent appraisers who gave much smaller values, nevertheless we cannot say that the value as fixed by the Chancery Court is contrary to the preponderance of the evidence.

II. Inspection By The Chancellor. The witnesses testified ore terms on November 5, 1964 and the cause was taken under submission. The decree was rendered and entered on January 4, 1965, and in the first paragraph of the decree there is this language: “And this cause is submitted to the Court . . . upon . . . testimony taken ore tenus at the bar of the Court. From the examination of such evidence and inspection of the property and other matters and things before the Court, the Court doth find ...” (emphasis our own). Now on appeal — and for the first time — the appellant says:

“It was error for the Court to inspect the property without the knowledge and consent of the parties to the suit, at a time when the property had been materially changed by improvement of the property.”

The appellant approved the decree as to form on January 4,1965. No objection was made to the language of the decree as heretofore quoted, and no record was made as to when and under what circumstances the Chancellor made any inspection of the property. For all that the record shows the use of the words “inspection of the property” may have been copied from some other form. There is no record whatsoever on this point except the bare words in the decree, and no objection was made in the Chancery Court to those words or to any inspection made by the Court. Under some circumstances it is proper for the Court and/or the Chancellor to inspect the property. Mitcham v. Temple, 215 Ark. 850, 223 S. W. 2d 817; and Fayetteville v. Stone, 194 Ark. 218, 106 S. W. 2d 158. For aught shown to the contrary the inspection by the Chancellor in the case at bar may have been under proper circumstances.

We cannot consider a point like this one urged here, and not urged below. The case of Springfield v. Housing Authority of Little Rock, 227 Ark. 1023, 304 S. W. 2d 938, is directly in point. There we said:

“Appellants also argue that the trial court erred in viewing the properties in question. However, no objection to the court’s action in this respect was made at the trial and the question cannot be raised for the first time on appeal. Koelsch v. Arkansas State Highway Commission, 223 Ark. 529, 267 S. W. 2d 4.”

Finding no erroi’, the decree is affirmed.


author: George Rose Smith, J.

text:
    Rhoden v. Stephens. Rhoden v. State.
    5162 and 5163
    395 S. W. 2d 754
    Opinion delivered November 22, 1965.

      Harlmess & Friedman, Texarkana, Texas, Arnold S Arnold, for appellant.

      Bruce Bennett, Atty. General, By: Joe Bell, Asst. Atty. General, for appellee.
   George Rose Smith, J.

David Rhoden was convicted of murder and sentenced to life imprisonment. After the trial his attorneys, appointed by the court, applied-for a new trial on the ground that an ineligible juror had served in the case. The court denied the application. By appeal and certiorari the matter has been brought to us for review.- Opposing counsel have agreed that Rhoden’s appeal on the merits, Case No. 5118, Rhoden v. State, will be deferred until the decision in the case at bar.

Both Rhoden and Clint Otwell were involved in the homicide. Otwell was tried first, in December of 1963. At that trial Walter E. McDaniel was one of the veniremen. On voir dire he stated that he lived close to Otwell and that he had heard the case discussed by persons who purported to know the facts of their own knowledge. The record in the Otwell case then continued as follows:

‘ ‘ By the Court: ‘ Has that made any impression on your thinking in the matter, without stating what that impression is?’
“By Mr. McDaniel: ‘Yes, it has.’
“By the Court: ‘You may be seated, Mr. McDaniel.’
‘ ‘ (Excused by the Court.) ’ ’

Bhoden’s trial began three months later, in March of 1964. At the request of Bhoden’s counsel the court inquired of the jury panel: “Is there any juror who was excused for cause ... in the Otwell case — for ■ cause, now. The Court would have excused you.” McDaniel made no response to this inquiry and served as. a juror in Bhoden’s trial.

The trial court, in denying Bhoden’s application for a new trial, held, first, that McDaniel was not excused for cause in the Otwell case; second, that the Otwell and Bhoden cases were not identical; and, third, that counsel had not been diligent in seeking to discover McDaniel’s disqualification within the time allowed for filing a motion for a new trial.

We are unable to agree with the court’s reasoning. A juror who has formed an opinion by talking with witnesses who purport to know the facts ■ is prima facie disqualified for cause. Collins v. State, 102 Ark. 180, 143 S. W. 1075 (1912). McDaniel was, by his own admission, subject to a challenge for cause in the Otwell case.

In holding that McDaniel was not in fact excused for cause in the Otwell case the trial judge stated that his telling McDaniel to be seated was,.under the practice in his court, a reservation of the question of the juror’s competency, so that McDaniel might have been questioned in more detail if it developed that his services might be needed. The trouble is, there is nothing to indicate that McDaniel was aware of that practice. As far as McDaniel might be expected to know, he had been excused for cause. That is, as a result of his knowledge about the case he was not submitted to counsel as a qualified juror, and he did not in fact serve in the case.

We think it immaterial that the Rhoden case and the Otwell case were not identical. Apparently only on homicide was involved. That homicide gave rise to similar charges against Otwell and Rhoden. Upon the record before us we cannot say that a prospective juror who had formed an opinion about Otwell’s guilt would necessarily be free from bias with respect to Rhoden. The juror McDaniel did not testify at the hearing upon the application for a new trial in Rhoden’s case. As far as the proof now before us extends, McDaniel was prima facie disqualified in the present case. The State has not rebutted that prima facie showing by proof that McDaniel was really unbiased.

On the point of diligence we have frequently held that a party cannot complain of a juror’s possible prejudice if the complaining party failed to question the juror about the matter on voir dire. Missouri Pac. R. R. v. Fikes, 211 Ark. 256, 200 S. W. 2d 97 (1947); Brown v. St., L., I. M. & S. Ry., 52 Ark. 120, 12 S. W. 203 (1889). Conversely, the party does not waive the juror’s disqualification if the party raises the point on voir dire and is misled by the juror’s statements or by his silence. Anderson v. State, 200 Ark. 516, 139 S. W. 2d 396 (1940). In that case we said: “Nothing can destroy the integrity of juries more effectively than to allow prejudiced jurors to sit in a case.” We cannot be certain that McDaniel was free from prejudice in the case at hand. In this situation Rhoden is entitled to a new trial.

The judgment in these two cases is reversed and the matter remanded for a new trial. Rhoden’s appeal on the merits, Case No. 5118, now becomes moot and will therefore be dismissed.


author: George Bose Smith, J.

text:
    Ark. La. Gas Co. v. Stracener.
    5-3669
    395 S. W. 2d 745
    Opinion delivered November 22, 1965.

      Howell, Price & Worsham and Hall, Purcell & Boswell, for appellant.

      Wright, Linclsey & Jennings, for appellee.
   George Bose Smith, J.

This is an action for personal injuries suffered by Bill and Marjorie Straoener as a result of a gas explosion that occurred in their home in Benton on Saturday, June 15, 1963. There were originally four defendants: (1) Dale Bobbins, the plaintiffs’ landlord; (2) Cecil McClendon, doing business as Mc-Clendon Furniture & Hardware Co., who installed a kitchen stove and turned on the gas about two hours before the explosion; (3) Arkansas Louisiana Gas Company, a public utility; and (4) Frank Shanks, the gas company’s local manager at Benton. The jury returned a verdict against the gas company only, awarding $9,000 to Stracener and $30,000 to his wife. The gas company and its manager Shanks have appealed. They argue twenty-one points for reversal, but we find it necessary to discuss only five.

I. It is first insisted that the gas company and its manager were entitled to a directed verdict in their favor. We are of the opinion that a question of fact was presented upon this point. The facts must be set forth in some detail in our discussion of this issue.

Dale Robbins, the plaintiffs’ landlord, formerly occupied the house himself. A year before the explosion he had a gas clothes dryer installed in the kitchen. The plumber, in making this installation, tapped the gas line by inserting a T-joint beneath the kitchen floor in the gas pipe that served the kitchen stove. The plumber drilled a hole in the floor under the dryer and ran a copper pipe from the dryer through the floor and over to the T-joint under the house.

On June 4, eleven days before the explosion, Robbins moved to another house he owned in Benton. He telephoned the gas company to ask that the' gas be shut off at the house he was vacating and to say that he' would call when wanted the gas to be turned on in his new home. By mistake the clerk who received his requests made the notation, “will call,” on the disconnection order, so that the gas company did not in fact turn off the gas. Robbins employed W. L. Davis to move his furniture. Davis shut off the gas with a wrench and removed the kitchen stove and the dryer, leaving the two uncapped gas pipes, called risers, protruding through the kitchen floor.

A few days later Robbins rented the house to Mr. and Mrs. Stracener, the plaintiffs. In making the lease Robbins agreed to replace the linoleum floor covering in the kitchen. Robbins instructed the linoleum dealer who laid the new floor covering to cap the gas pipe that had served the dryer. However, on Saturday morning, the day of the explosion, the workmen laying the linoleum discovered that the riser for the,dryer had been removed. They assumed that the connection for this pipe had been capped underneath the house, and upon that assumption, they put sheet metal over the hole in the floor where the dryer had been and covered it with linoleum. Their assumption was wrong. Some one, without the knowledge of any of the parties to the case, had removed the copper pipe serving the dryer but had neglected to cap the threaded opening in the T-joint under the floor.

The Straceners moved into the house at about ten of eleven o’clock on Saturday morning. At about noon Stracener called the gas company, whose office was closed for the week end, to request that the gas be turned on. Stracener succeeded in reaching the manager, Shanks, who said that he could turn on the gas if there were no uncapped pipes. Stracener assured him that there were none.

Shanks arrived at the house at about two o’clock in the afternoon. In the meantime Stracener had discovered the uncapped riser that was to serve the kitchen stove. Stracener explained this to Shanks, who accordingly made no attempt to restore the gas service. At this point the testimony is in sharp dispute. Stracener says that he told Shanks that a new stove would be installed that afternoon and that Shanks said:

“Well, they will know how to hook it up — know what to do.” Shanks denies that he made the statement just quoted. He says instead that he merely asked Stracener to call him back when the stove had been connected. According to Shanks, if he had been recalled he would, in restoring service, have made a routine test that would have disclosed the fact that gas was leaking somewhere. In that event Shanks would have turned the gas off again and instructed Stracener to engage a plumber to find the leak. The gas company itself does not cap pipes on the homeowner’s side of the meter.
Stracener had bought a new kitchen stove from Mc-Clendon. At about four o’clock McClendon delivered the stove and connected it to the same pipe that had served Robbins’s kitchen stove. Stracener testified that he told McClendon that the gas man had said that McClendon would know what to do and should turn on the gas. At Stracener’s direction McClendon turned on the gas with a wrench and lighted the stove’s pilot light. It is evident that gas escaped through the open T-joint under the house until the explosion occurred at about six o’clock, seriously injuring both the Straceners.
W. B. Blankenship, a safety engineer employed by the gas company, testified that it is the company’s rule not to permit any one except its own employees to turn the gas back on after it has been shut off. Blankenship testified that this regulation is a safety measure based upon the company’s belief that its employees are best qualified to restore service. From his testimony: “We have numerous people call and say, ‘Can my plumber turn it on % ’ and we say ‘ NO. ’ ”

If the jury accepted Stracener’s testimony as the truth they might have found that Shanks violated the company’s safety regulation in telling Stracener that the workmen who were to install the stove would know how to restore the gas service. A gas company may be found to have been negligent in having restored service without making an inspection for open pipes. Sawyer v. Southern Cal. Gas Co., 206 Cal. 366, 274 P. 544 (1929); Christo v. Macon Gas Co., 18 Ga. App. 454, 89 S. E. 532 (1916); Hebert v. Baton Rouge Elec. Co., 150 La. 957, 91 So. 406, 25 A. L. R. 245 (1922). Similarly, when the company is under a duty to turn on the gas, as in the case of a new building or a building in which the gas has been shut off during a vacancy (the situation now before us), the company may be guilty of negligence in allowing someone other than its own employees to turn on the gas. Schmeer v. Gaslight Co., 147 N. Y. 529, 42 N. E. 202, 30 L. R. A. 653 (1895); Hayes v. Cohoes Gaslight Co., 183 App. Div. 182, 170 N. Y. S. 312 (1918); Lynchburg Gas Co. v. Sale, 160 Va. 783, 169 S. E. 577 (1933). Thus Stracener’s testimony created a question of fact in the case at bar.

II. The gas company has another rule that requires its employees, upon shutting off the gas at a customer’s house, to tag the meter by attaching a piece of wire with a reel seal on it. The tag is intended, apparently for billing purposes, to show that the gas company itself disconnected the meter. When Shanks called at the Straceners’ home on the afternoon of the explosion he noticed that the gas had been shut off, but he did not attach a wire seal to the meter.

Upon this proof the trial court, at the plaintiffs’ request, instructed the jury that if Shanks violated a company rule with respect to locking or tagging the meter, that failure would be evidence of negligence to be considered along with the other evidence in the case. The giving of this instruction was, in view of the proof, error. Such a regulation does not itself establish a standard of care, for the true standard is the conduct of a reasonably careful person. Davis v. Johnson, 275 P. 2d 563 (Cal. App., 1954). Here there is no indication that the explosion would have been avoided if Shanks had attached a seal to the meter. To the contrary, it is the plaintiffs ’ theory that Shanks intended for the appliance dealer to turn the gas on; so he would also have meant for the dealer to remove the wire if one had been attached.

Ill and IV. The trial court directed a verdict in favor of McClendon, the dealer who turned the gas on, and also instructed the jury that there was no negligence on the part of Mrs. Stracener. In response to interrogatories concerning only three defendants the jury apportioned the negligence in the ratio of 90% to the gas company, 10% to Stracener, and none to Bobbins, the landlord.

The fact that the jury found Stracener negligent indicates that the court erred in giving the two instructions we are now considering. This is so because Stracener may have been negligent in two particulars, one of which is also applicable to McClendon and the other to Mrs. Stracener.

First, if the jury believed that Shanks was truthful in denying that he gave permission for McClendon to turn on the gas, then Stracener may have been negligent in instructing McClendon to restore service. In that event the explosion could have been attributed to Mc-Clendon’s carelessness in failing to discover the open T-joint; so McClendon was not entitled to a directed verdict. The error was not harmless, for the gas company could have moved for a judgment for contribution against McClendon. Ark. Stat. Ann. § 34-1007 (Repl. 1962); Rudolph v. Mundy, 226 Ark. 95, 288 S. W. 2d 602 (1959).

Second, there is testimony that the Straceners smelled gas shortly before the explosion and discussed the matter. If Stracener was.-negligent in then remaining at the house his wife might be found to have been equally negligent. Hence the court erred in declaring as a matter •of law that Mrs. Stracener was free from negligence. The issue was for the jury.

Y. The instructions did not submit the question of Shanks’s negligence, even though he was a party against whom the plaintiffs sought a judgment. Had the jury found Shanks not-negligent that would have exonerated the gas company, for the only liability asserted against it was based upon Shanks’s conduct. Porter-DeWitt Constrution Co. v. Danley, 221 Ark. 813, 256 S. W. 2d 540 (1953). All four of the errors in the court’s instructions may be corrected upon a new trial.

Reversed.

The Chief Justice is of the opinion that there was no substantial evidence of negligence on the part of the company which could properly be found a proximate cause of the explosion and resulting injuries, and he would therefore reverse and dismiss.


text:
    City of North Little Rock v. Habrle.
    5-3664
    395 S. W. 2d 751
    Opinion delivered November 22, 1965.

      Reed W. Thompson, City Attorney and James R. Wallace and Charles L. Carpenter, Asst. City Attorneys, for appellant.

      Moses, McClellan, Arnold, Oiven & McDermott and James R. H.oivard, for appellee.
   Paul Ward, Associate Justice.

This litigation concerns an attempt to rezone property in North Little Bock. In 1962 a comprehensive Zoning Code was adopted embracing a large part of the. City. The portion of the property here involved was zoned for use as B-3, meaning that it could be used only, for single family and multi-family residential purposes.

On March 6,1964 Cecelia Habrle (appellee) purchased a lot described as Lot 1, Counts’ Addition to the City of North Little Bock, located in the area zoned B-3. Shortly thereafter she petitioned the Zoning Commission to rezone her property to ££C-2” so she could operate a beauty shop thereon. This request was denied by the Commission on April 7 and by the City Council on April 27,1964.

On June 3, 1964 appellee filed a complaint in chancery court against the City (appellant) alleging: The action of the City was unreasonable and arbitrary in that the limitation on the use of her property bears no definite relationship to the health, safety, morals or general welfare of the inhabitants of the area zoned R-3, that the existence of a beauty shop on her property would in no wise affect the value of the property in the area; that it would not constitute a traffic hazard, and that there are similar businesses in the area. She asked the court to enjoin and restrain the City from prohibiting her and her successors in title from “using the land . . . for C-2 purposes.” Appellant filed a general denial, and a trial was had on the issues thus enjoined.

The trial court made, in essence, these material findings: (a) Appellee became the owner of the subject lot two years after the Zoning Code became effective; (b) Appellee’s property is located in an area which consists of single and multiple family residences and there are several quiet businesses such as a grocery store etc., which were there before the property was zoned as class R-3, being non-conforming uses; (c) Using appellee’s lot for a beauty shop would not devalue the property in the area; (d) But rezoning the property for other types of business (permissible under the C-2 classification) would result in a devaluation of the other property in the area, and; (e) The action of the Planning Commission and the City in refusing to rezone this one lot was arbitrary, unreasonable, and capricious. The court’s order was that the lot be rezoned from an R-3 to a C-2 classification, and that the City be enjoined from preventing appellee from using “the property ... in any manner provided in the C-2 classification.” This appeal by City follows.

For a reversal appellant relies on three separate points. One, the court cannot substitute its judgment for that of the Zoning Authorities; Two, there is no proof the City acted arbitrarily, capriciously, or unreasonably, and; Three, there is no proof to justify the trial court in substituting its judgment for that of the City. However, since there is much similarity in the points, we deem it unnecessary to discuss them separately.

The decisive issue before us is whether the testimony justified the trial court in reversing the Zoning Authorities. The fundamental rule by which we must decide this issue has been frequently announced by this Court, and it is clearly stated in the recent case of City of Little Rock v. McKenzie, 239 Ark. 9, 386 S. W. 2d 697. In that case the trial court held the City acted arbitrarily in rezoning certain property. In reversing the trial court we used this language:

“In resolving this conflict we cannot substitute our judgment for that of the zoning authorities. We must uphold their decision unless we can say that it is arbitrary and capricious. ’ ’

Applying the above rule to the testimony in the record here we are unwilling to say the action of the Zoning Authorities was arbitrary or capricious. One definition of the word arbitrary given by Webster is ‘ ‘ decisive but unreasoned, ’ ’ and capricious is defined by Webster as “not guided by steady judgment or purpose.” It is true that, according to testimony presented by appellee, eight persons said they would not object to appellee using the lot for a beauty shop, but they did not say they would not object if she used it for some other purpose permissible under C-2 classification. It was also shown that there were other operations not permissible under an B-3 classification, but it is admitted they were in existence when the area was originally zoned. It is undisputed that appellee bought her property after the area was zoned. No doubt it will be a financial disadvantage for appellee if she cannot operate a beauty shop on her lot, but we do not understand this is necessarily any indication the Zoning Authorities acted arbitrarily when they refused to let her do so. In the McKenzie case, supra, we indicated we were not insensitive to hardships which sometimes result in a case of this kind, but said: “Yet in every case such as this one a similar loss in property value must be suffered by one side or the other. ’ ’

It is significant in this case that there is no contention by appellee the Zoning Authority acted arbitrarily under the conditions existing when the Code went into effect in 1962, yet there is no contention conditions have changed since 1962.

As pointed out before several neighbors said they had no objection to appellee operating a beauty parlor on her lot, and it was also stated that appellee had no intention to use her lot for any other purpose. The facts are, however, that if appellee’s lot is rezoned to C-2 classification she can sell her property at any time and the purchaser would have the right to use the same for any business permissible under such classification. In this connection, as has previously been pointed out, the trial court found as a matter of fact that a rezoning of the lot to C-2 would devalue other property in the area. We find nothing in the record to support a finding that the Zoning Authorities acted arbitrarily.

It is our conclusion therefore that the decree of the trial court must be reversed, and it is so ordered.

Reversed.


text:
    Ark. State Highway Comm. v. Shepherd.
    5-3679
    395 S. W. 2d 743
    Opinion delivered November 22, 1965.

      Mark E. Woolsey and Thomas B. Keys, for appellant.

      Lookadoo, Gooch and Lookadoo, for appellee.
   Sam Robinson, Associate Justice.

On May 7, 1963, appellant, Arkansas State Highway Commission, filed its Complaint and Declaration of Taking and deposited the sum of $27,100 as estimated just compensation for the taking of 14.5 acres of land belonging to appellee, Thomas Shepherd. The land taken was a part of a larger tract which appellee owned consisting of approximately 40 acres situated about 1% miles west of the City of Arkadelphia. The improvements, all of which were located on the land taken, consisted of a six room dwelling, a one car garage, a utility barn, three chicken houses, a two room tenant house, and a business building. The original tract contained 1,289.1 feet of highway frontage, all of which was included in the taking. The trial resulted in a verdict for appellee in the sum of $50,000 as just compensation for the land and improvements condemned. From this judgment the Highway Commission has appealed.

Appellant insists that reversible error was committed when the court below refused to grant a mistrial as a result of the testimony of appellee, Thomas Shepherd. Shepherd testified that, in his opinion, the land and improvements before the taking had a fair market value of $115,000, and that the value of the land remaining after the taking was $20,000. The objectionable parts of this testimony, which included his consideration of a sale to a condemning authority and certain anticipated profits, were stricken and the court admonished the jury not to consider them. Appellant asked for a mistrial based on the fact that the admonition could not remove the prejudicial effect of the testimony. The motion was properly denied. The trial court must be allowed the broadest latitude in determining the action be allowed the broadest latitude in determining the action appropriate to eliminate the prejudicial effect of incompetent testimony. United Order of Good Samaritans v. Lomax, 172 Ark. 330, 288, S. W. 709. We cannot say that the over all effect of Shepherd’s testimony was prejudicial to appellant.

Appellant argues that the expert testimony of Mr. Ben Bledsoe should have been stricken insofar as it relates to the value of the improvements of the property in question. He stated that he knew of no other similar transactions in the locality and, therefore, based his opinion of value on the condition of the buildings and what they would cost new; that a new building would cost around $8.00 per square foot, and, figuring the depreciation on the number of years the improvements had been in use, the value would be about $3.00 per square foot. Although this language did not use the exact terms, we think it satisfies the “cost less depeciation” formula which may be considered when a market price is not readily available.

When asked if the chicken business was or was not the highest and best use of the property, Bledsoe stated that it could be, although there were several other uses which would be, in his opinion, more profitable. Based on this testimony, appellant seeks to establish the premise that the value of, improvements could not be considered in this case since the land had been appraised according to its best use. This construction is improper. The testimony shows that the improvements tend to adapt the property to an advantageous use.

The appellant’s argument that the verdict was not supported by the evidence is not convincing. Mr. Bledsoe was a qualified expert and had for several years made appraisals in Clark County. In his opinion, appellee’s damages were $64,345.00. We cannot, therefore, say that there was no substantial evidence upon which the jury could make its decision.

Affirmed.


text:
    Spicer v. Spicer.
    5-3670
    397 S. W. 2d 129
    Opinion delivered November 22, 1965.
    [Rehearing denied January 17, 1966.]

      Jeff Mobley, for appellant.

      Williams <& Gardner, for appellee.
   Jim Johnson, Associate Justice.

This appeal is from a divorce in which the basic issue is whether the parties were married.

Appellee Brenda Jones (Spicer) filed suit for divorce against appellant Delmas Spicer in Pope Chancery Court on February 22, 1964, alleging that the parties were married on July 20, 1963, in Oklahoma, and lived together until January, 1964. Appellee alleged indignities to the person, stated that she was enceinte, prayed separate maintenance until delivery of the child and payment of medical bills and attorneys’ fees.

On March 12, 1964, the court in an interlocutory decree ordered appellant to pay $10 per week support for appellee, $125 medical expenses, $50 attorneys’ fee and all other expenses incident to the birth of the child. The child was born June 9, 1964, and appellant paid all expenses as ordered. On September 14, 1964, appellant filed a motion to dismiss appellee’s petition for divorce, denying the existence of a marriage and asking that appellee he ordered to reimburse him for all sums paid pursuant to court order. After trial on December 23, 1964, the chancellor decreed that the marriage was annulled, the child was legitimate, granted appellee custody with visitation rights to appellant and ordered appellant to pay $10 per week child support. From the adverse decree comes this appeal. Appellant urges reversal of the chancellor’s finding of the existence of a voidable marriage and for judgment against appellee for the sums paid by appellant under the court orders of March 12 and December 23, 1964.

Here, briefly, are the contested facts. According to appellee’s testimony, the parties had been dating for some months when on September 20,1963, they decided to get married. They drove from Hilltop to Oklahoma, went to a. very small town to the home of a justice of the peace who issued them a marriage license and married them about 10:00 o’clock p.m. in the presence of his wife. Appellee was unable to remember the name of the' town, the county, or the justice of the peace. They thereafter returned to Arkansas without cohabiting in Oklahoma. Appellant drove 'appellee to her parents’ home and he returned to his mother’s home that night. The parties never established a home as man and wife but did copulate thereafter occasionally, including one night at appellee’s parents’ home when appellant told her family that he and appellee were married, and one night in Little Rock.

It is undisputed for three months during this period appellee lived and worked in Little Rock under the name Brenda Jones, and she does not deny that she dated other young men while there.

Appellant, on the other hand, denies ever takingappellee to Oklahoma, denies marrying her, denies spending a night at her parents ’ home. In support of his testimony appellant produced authenticated affidavits from the keeper of the marriage records of each of Oklahoma’s seventy-seven counties attesting that a search had been made and no record of any marriage between the parties could be found in any of the seventy-seven counties. It is not contended that the parties married in Arkansas or in any place other than Oklahoma. Of course Arkansas does not recognize common law marriages. The statutes regulating and prescribing the manner and form in which marriages may be solemnized in this state are mandatory and not directory. Furth v. Furth, 97 Ark. 272, 133 S. W. 1037.

As was pointed out in Yocum v. Holmes, 222 Ark. 251, 258 S. W. 2d 535, appellee’s testimony that she married appellant was sufficient to make it a question of fact as to whether a marriage' took place; the burden of proof that the marriage is not valid and regular is upon the party attacking it, appellant. On trial de novo on the record before us, we find that appellant met the burden and proved by a great preponderence of the evidence that there was no valid marriage.' It follows, therefore, the decree is-reversed and thé cause remanded-for further proceedings consistent herewith.


text:
    Rhoden, Adm’r. v Lovelady.
    5-3681
    395 S. W. 2d 756
    Opinion delivered November 22, 1965.

      Felver A. Boivell, Jr. for appellant.

      Gordon $ Gordon for appellee.
   Frank Holt, Associate Justice.

The decedent, 82 years of age, was driving his car at a slow rate of speed in a westerly direction as he approached the entrance to his son’s [appellant’s] driveway. The driveway was on the south side of the highway. Appellee Lovelady, a salesman for appellee Jackson Cookie Company, was driving a truck in an easterly direction at a speed of approximately 40 to 50 miles per hour as he approached decedent’s automobile. There was testimony that the decedent had his arm out the window giving a signal. Appellee Lovelady testified that he could see decedent’s vehicle, apparently stopped, at a distance of 200 to 250 yards and observed no signal being given until he got closer; that the decedent stayed in the westbound or his proper traffic lane until appellee was 50 to 60 feet from him when decedent turned to his left into the eastbound or appellee’s traffic lane where the fatal collision occurred. Appellee swerved to avoid the collision. According to appellee, he never at any time slowed the speed of his vehicle. The issues of negligence, based upon appellant’s complaint and appellees’ answer and counterclaim, were submitted to the jury which denied damages to both parties. From the judgment on this verdict appellant brings this appeal.

For reversal appellant contends that the trial court erred in giving appellees’ requested instruction on unavoidable accident. The appellees argue, however, that since the jury found appellees free of negilgence in answer to interrogatories that the instruction constituted harmless error.

In the case at bar, the pleadings and the evidence adduced indicated this accident was caused by the negligence of one or both of the parties and that this accident was not inevitable. It could not have happened without someone being negligent. In the very recent case of Houston v. Adams, 239 Ark. 346, 389 S. W. 2d 872, we re-examined the suitability of an instruction on unavoidable accident in negligence cases and disapproved it. There we said: “* * * when, as here, the question is merely whether one or more of the parties were guilty of negligence we hold that the instruction in question should not be given.” Also, we stated that only in exceptional circumstances is such an instruction permissible. Such a situation would be where the alleged injury resulted from some cause other than the negligence of either party. See, also, Burton v. Bingham, 239 Ark. 436, 389 S. W. 2d 876. In our view the evidence in the case at bar did not make a submissible issue for the jury on the theory of an unavoidable accident and we reaffirm the cited cases. .

Appellant further contends that the trial court erred in not permitting the appellant to interrogate appellee Lovelady on cross-examination with reference to a statement made by him in his discovery deposition and, also, in refusing to allow this portion of the deposition to be read in evidence in chief by the appellant. This proffered evidence reads:

“A. I had the right of way. Mister, I can’t wait for every guy to make up his mind and to try to out guess them.”

Any part or all of a discovery deposition relevant to the issues may be used by an adverse party for any purpose. Ark. Stat. Ann. § 28-348(d) (Repl. 1962); Superior Forwarding Co. v. Sikes, 233 Ark. 932, 349 S. W. 2d 818; Mabry v. Ross, 237 Ark. 514, 374 S. W. 2d 361. Appellee Lovelady was an adverse party to the appellant. The statement by Lovelady in his deposition was an admission against interest and pertinent to the issue of appellees’ alleged negligence. The declarations or admissions of a party against his own interest upon a material matter are admissible against him in the trial of an action in which he is a party. Pacific Mutual Life Ins. Co. v. Butler, 192 Ark. 614, 93 S. W. 2d 329; 20 Am. Jur., Evidence, § 544. We agree with the appellant that this part of the deposition is admissible both as evidence in chief and, also, as proper cross-examination. The appellees, of course, had the right to read to the jury any part or all of the deposition that might be explanatory of this selected portion.

Appellant’s final contention is “that the verdict is contrary to the law and the evidence.” We are of the view that the evidence presented issues of fact for the jury and it is within the jury’s province, and not ours, to resolve factual issues in law cases.

Reversed and remanded.