text:
    Ruby TURNER, Widow of James A. TURNER, Deceased Employee, v. LAMBERT CONSTRUCTION COMPANY and J. B. LAMBERT & SON, Employer, LIBERTY MUTURAL INSURANCE CO., Insurance Carrier
    75-45
    524 S.W. 2d 465
    Opinion delivered June 23, 1975

      Schieffler, Tales & Porter and Niblock, Hipp & Odom, for appellant.

      Douglas Anderson, for appellees.
   John A. Fogleman, Justice.

This appeal from the judgment of the circuit court affirming the denial of compensation to appellant, the widow of James A. Turner, actually turns entirely upon fact issues resolved against her by the Workmen’s Compensation Commission. The only issue before the commission was whether the myocardial infarction causing Turner’s death arose out of and in the course of his employment. The only issue before the circuit court was whether there was substantial evidence to support the commission’s action. There was medical testimony to support the views of both parties on causation.

The first point for reversal is that the circuit judge erred in denying appellant’s request for oral argument on her appeal to that court. Appellant argues that it was an abuse of discretion to deny the oral argument, saying that Rule 6 of the Uniform Rules for Circuit and Chancery Courts requires the court to allow oral argument if either party desires it. We do not so interpret the rule. It reads:

a. When the Circuit Court learns that an appeal from the Workmen’s Compensation Commission is on the docket the Court will determine if all parties to the appeal are represented by an attorney of record. If a party is not represented by an attorney of record, or if the Court thinks it otherwise desirable, the matter will be set for oral hearing.
b. If all parties to the appeal are represented by an attorney of record the Court will request advice from said attorneys as to whether they desire the matter to be decided upon the record and any briefs in the file, or whether they wish to be heard orally or by briefs, or both; but if no response is had from such attorneys within 10 days the Court will proceed to study the case and announce a decision.

As we interpret this rule, subsection b only requires that the circuit court ascertain the desires of both parties if both are represented by counsel, before deciding whether they should be heard orally. Subsections a and b must be read together. When they are, it seems quite clear that the appeal is to be heard on oral argument when the parties are represented by counsel only if the court thinks it desirable. If it does not think so, the case will be decided upon the record and any briefs included in it. This affords the court the broadest possible latitude of discretion in the matter. Not only do we find that the parties are not entitled to oral argument on appeal to the circuit court as a matter of right, we certainly could not say that the circuit court abused its discretion in this regard in this case. The facts as to Turner’s habits and conduct, the requirements of his employment, his activities on the day he suffered the fatal heart attack, his medical history and the probabilities and possibilities relative to causation were fully developed in testimony adduced before the referee and additional testimony presented to the commission. The transcript on file in the circuit court contains extensive briefs submitted to the commission. The circuit judge was justified in feeling that oral argument would serve no useful purpose but that it would unduly and unjustifiably consume judicial time.

Appellant’s second point for reversal is her contention that there was no substantial evidence to support the judgment of the circuit court. This contention is presented from that view of the evidence most favorable to her. This is not the perspective from which we must view evidence in these cases. We must view it most favorably to the findings of the commission whether they be for claimant or the employer. See Curtis Mathes of Arkansas, Inc. v. Summerville, 256 Ark. 340, 507 S.W. 2d 108; Sneed v. Colson Corporation, 254 Ark. 1048, 497 S.W. 2d 673; Tigue v. Caddo Minerals Company, 253 Ark. 1140, 491 S.W. 2d 574. We must affirm unless there was no substantial evidence to support the commission’s finding on causation. Mounts v. Bechtel Corporation, 256 Ark. 318, 507 S.W. 2d 99. No useful purpose would be served, however, by any extensive review of the evidence, as we agree with the circuit judge.

Turner had to exert himself physically in the performance of his duties as a farm foreman for J. B. Lambert, Sr. and J. B. Lambert, Jr. over a period of about three years. He had previously been employed by Lambert Construction Company for about seven years. On the day of Turner’s death, he was taken by J. B. Lambert, Jr. from the fields where planting operations were in progress under Turner’s supervision. Lambert testified that this was done because he discovered that Turner had been drinking beer, in spite of the fact that Turner had previously been discharged for drinking and reinstated upon the condition that he not drink while on the job. J. B. Lambert, Sr., to whose home Turner was taken, testified that Turner was intoxicated. According to these witnesses, Turner was then discharged for violating the condition upon which he was reinstated.

There is conflict in the evidence as to the actual time of day these events took place, but it is clear that Turner was in town and at his home much earlier than normal during planting season. His fatal attack took place at about 4:30 or 5:00 p.m. at his home after he had commenced mowing his lawn. When found, he had fallen to the ground beside his lawnmower and turned blue. A neighbor could find only a faint heartbeat. Turner was taken to the hospital and pronounced dead.

There was evidence which, if accepted by the commission, would have supported an award. The medical testimony was in irreconcilable conflict. This presented a fact question to be resolved by the commission. Gordon v. J. A. Hadley Construction Co., 256 Ark. 577, 509 S.W. 2d 287. The commission recognized the qualifications and credentials of the physician who most strongly supported the claimant’s position had been severely attacked. Other physicians supporting her contentions admitted that there was an element of speculation in arriving at a conclusion that Turner’s employment caused his death or merely stated that it could have, or that it could have predisposed him to a myocardial infarction.

Turner had been a cigarette smoker for many years. There seems to be little doubt that Turner had arteriosclerosis and that it was likely he would eventually suffer a coronary occlusion, which would result in a myocardial infarction. That his exertion in mowing the lawn could have been a substantial contributing factor is virtually undisputed. It also seems to have been conceded that excessive smoking and use of alcohol are factors contributing to heart disease which make one more susceptible to myocardial infarction. The physician who pronounced Turner dead upon his arrival at the hospital stated the cause of death as acute myocardial infarction, saying that the word “acute” meant that it had occurred suddenly. It was his opinion that Turner had suffered a sudden massive explosive-type heart attack, which results from exertion in the immediate past. He expressed the opinion that the myocardial infarction and sudden death were precipitated by the exertion with the lawn mower on a hot day. He considered Turner’s age, sex and smoking as predisposing factors which, together with this exertion caused the attack. Another doctor expressed the opinion that the exertion just prior to Turner’s death was the cause of the heart attack and that his employment had nothing to do with his death.

The commission found that the claimant had failed to prove by a preponderance of the evidence that the decedent suffered an injury arising out of and in the course of his employment resulting in his heart attack and death. The evidence to support this conclusion was substantial. Since we cannot say that the evidence was so nearly undisputed that fairminded men could not have arrived at a finding adverse to the claimant (Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W. 2d 689)

the judgment is affirmed.


source: Caselaw Access Project

author: J. Fred Jones, Justice.

license: Public Domain

text:
    Virginia Warren NEAL v. Arther Gerald NEAL
    75-53
    524 S.W. 2d 460
    Opinion delivered June 23, 1975

      Laser, Sharp, Haley, Young & Boswell, for appellant.

      House, Holmes & Jewell, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Virginia Warren Neal from a divorce decree awarded to the appellee Arther Gerald Neal upon his counterclaim. The appellant contends for reversal that the chancellor’s awarding of a divorce to the appellee was against the preponderance of the evidence; that the chancellor erred in failing to award alimony to the appellant, and that the chancellor’s settlement of property rights was arbitrary and unsupported by the evidence.

Mr. and Mrs. Neal were married in 1937; three children, a daughter and two sons were born as a result of the marriage. The daughter Joann was married at the time this litigation was commenced; the older son Jerry was in the United States Army, and the younger son Kenneth was 17 years of age and still at home. The appellant and appellee went into the piano and organ sales business several years ago under the name “Gerald Neal Piano and Organ Company.” The business prospered and it appears th$t Mr. and Mrs. Neal’s marital difficulties increased in proportion to the prosperity of the business.

Mr. and Mrs. Neal separated several times and the present action was commenced when Mrs. Neal filed her petition for divorce on May 6, 1971, alleging general indignities as grounds for divorce. The appellee filed an answer of general denial and counterclaimed for divorce also alleging general indignities. On June 14, 1972, the chancery court entered its decree denying a divorce to both parties and awarding the custody of the minor son to Mrs. Neal and ordering Mr. Neal to pay certain alimony and child support.

After the expiration of three years from the date of separation, Mrs. Neal amended her original complaint on May 17, 1974, in which she reaffirmed the allegations of general indignities as set out in her original complaint and in addition alleged three years separation as grounds for divorce. The appellee then amended his counterclaim and also reaffirmed his prior allegations and as additional grounds alleged three years separation. The chancellor granted the divorce decree to Mr. Neal on his counterclaim and upon a finding of fact that Mrs. Neal was more at fault in bringing about the three years separation. Mrs. Neal remarried prior to perfecting this appeal and Mr. Neal has filed a motion to dismiss the appeal because Mrs. Neal has accepted the benefits of the divorce decree and has recognized its validity by remarriage. He contends that she is now es-topped from questioning the validity of the decree.

Before discussing the points on which Mrs. Neal relies for reversal, we shall first discuss the appellee’s motion for dismissal. The appellee cites the case of Butts v. Butts, 152 Ark. 399, 238 S.W. 600 (1922) as authority for his motion to dismiss. It is our view that the Butts case is distinguishable on its facts from the case at bar. In the Butts case the appellant denied the appellee’s grounds for divorce, but in the case at bar the amended petition and amended counterclaim alleged three years continuous separation as grounds for divorce and the decree was granted on that ground.

In McCormick v. McCormick, 246 Ark. 348, 438 S.W. 2d 23 (1969) this court said:

“Furthermore, at the hearing of her motion to vacate appellant agreed and it was stipulated that she and appellee had lived separate and apart for more than three consecutive years. A divorce under this section [§ 34-1202 (7) (Repl. 1962)], upon proper proof, is mandatory upon the suit of either party, regardless of what caused the separation or who was at fault. Brooks v. Brooks, 201 Ark. 14, 143 S.W. 2d 1098 (1940); Mohr v. Mohr, 214 Ark. 607, 215 S.W. 2d 1020 (1948).
However, when a divorce is granted upon three year separation, the question who is the injured spouse is then considered in the settlement of property rights and the question of alimony. Jones v. Jones, 199 Ark. 1000, 137 S.W. 2d 238 (1940).”

Even in the absence of the absolute right to a divorce on three years separation without cohabitation, the majority rule appears to be that property rights and financial provisions are separable from the validity of a divorce decree. Pope v. Pope, 268 Ala. 513, 109 So. 2d 521 (1958); Reed v. Reed, 82 Ariz. 168, 309 P. 2d 790 (1957); Wigton v. Wigton, 73 Colo. 337, 216 P. 1055 (1923); Klumb v. Klumb, 190 So. 2d 454 (Miss. 1966); Weatherford v. Weatherford, 91 So. 2d 179 (Fla. 1956).

In Alderson v. Alderson, 258 Ind. 328, 281 N.E. 2d 82 (1972) the Indiana Supreme Court reversed its previous holding in Sidebottom v. Sidebottom, 249 Ind. 572, 233 N.E. 2d 667 (1968) and in doing so said:

“[T]his Court concludes that the general rule set forth in Sidebottom v. Sidebottom, supra, calling for summary application of the doctrine of estoppel when the appellant has remarried pending appeal, even though the appellant raises no question on appeal concerning the validity of the marital dissolution, should no longer be the law.”

See Owen v. Owen, 208 Ark. 23, 184 S.W. 2d 808 (1945).

In Bradshaw v. Sullivan, 160 Ark. 547, 254 S.W. 1064 (1923), a divorce decree was awarded to the plaintiff husband. The custody of the children was awarded to the defendant wife and she was awarded a one-third interest in a tract of land owned by the husband, and after the decree was entered an appeal was perfected. Subsequent to the rendition of the decree the plaintiff died and the cause was revived in the name of his administratrix. In upholding the appeal this court said:

“In 1 C.J., page 171 § 289 of the chapter of Abatement and Revival, it is said: ‘Where the party seeking a divorce appeals from a judgment, simply denying it, and pending the appeal either party dies, the appeal and the action abate absolutely and cannot be revived, there being no one living who can legally have any interest in the same. But it is otherwise in so far as the property rights of the parties are involved. . . ’
We do not have for decision the question whether an appeal could be prosecuted where no property rights are involved, for property rights were adjudged here; and there appears to be no division of authority as to the existence of the right of appeal when the decree also adjudicates property rights. 7 Enc. of Proc., page 834.
In the case of Strickland v. Strickland, 80 Ark. 451, the court had decreed in favor of the husband, and the wife appealed, and after the submission of the cause the husband died. The court said: ‘Of course, death terminates a divorce suit; but where property rights depend on the correctness of a divorce decree, and an appeal has been taken from it, it is the duty of the appellate court to review the decree in order to settle the property rights. (Citing cases).’ See also Johnson v. Bates, 82 Ark. 284.”

We are of the opinion that the appellee’s motion to dismiss the appeal should be denied.

As to the appellant’s first point, the so-called three year separation statute is the seventh ground for divorce under Ark. Stat. Ann. § 34-1202 (Supp. 1973) which provides as follows:

“Where either husband or wife have lived separate and apart from the other for three (3) consecutive years, without cohabitation, the court shall grant an absolute decree of divorce at the suit of either party, whether such separation was the voluntary act or by the mutual consent of the parties and the question of who is the injured party shall be considered only in cases wherein by the pleadings the wife seeks either'alimony under Section 34-1211, Arkansas Statutes 1947, or a division of property under Section 34-1214. Arkansas Statutes 1947, as hereby amended, or both.”

The appellant admits in her brief that because she sought alimony and a division of the property in her petition, the chancellor properly considered the question of who was the injured party. According to the chancellor’s findings the appellant held assets in her own name valued at $61,948.00 and the appellee held personal assets in his name with a net value of $93,915.80. The appellee also held the piano business in his name with a net value of $57,634.67. The appellant and appellee jointly held assets valued at $93,718.44. The chancellor awarded to each party the personal assets held in their own names. He directed that the jointly held property be sold and the proceeds equally divided. He awarded to the appellant the home furnishings and directed the appellee to pay to the appellant $40,000.00 in lieu of her interest in the piano business.

The appellant first argues that the chancellor adopted an incorrect rule of law in concluding that where the wife is found more at fault she is entitled to no alimony and no division of property. The appellant then cites a number of cases in which we have held that where the divorce is to the husband and the equities justify, the courts have power to award the wife an interest in the husband’s real property. We are of the opinion that the appellant’s argument is without merit. As we interpret the chancellor’s findings and decree, the degree of fault was mentioned by the chancellor only in determining the injured party, as required by the statute, and was not based on the erroneous conclusion of law as the appellant contends. See Lewis v. Lewis, 255 Ark. 583 502 S.W. 2d 505 (1973); Alexander v. Alexander, 227 Ark. 938, 302 S.W. 2d 781 (1957). It is well recognized that a chancellor has a broad range of discretion in determining property rights of divorced parties, particularly when the divorce is based on the three year separation statute. Narisi v. Narisi, 233 Ark. 525, 345 S.W. 2d 620 (1961); Lewis v. Lewis, supra.

The appellant next argues that the chancellor’s finding that the appellant was more at fault in the dissolution of the marriage than the appellee, was against the preponderance of the evidence. It is well settled that chancery cases are reviewed de novo on appeal and the chancellor’s decree will not be reversed on disputed facts unless the findings are against the preponderance of the evidence. Greer v. Greer, 193 Ark. 301, 99 S.W. 2d 248 (1936). A compelling reason for this well settled rule is the fact that the chancellor is in a better position to evaluate the testimony of the witnesses as he hears them testify and observes their demeanor while doing so. Dennis v. Dennis, 239 Ark. 384, 389 S.W. 2d 631 (1965).

It would be difficult to find a case where an appellate court is more dependent on the chancellor’s observation of the witnesses as they testify than in the case at bar. The testimony of both parties and their respective witnesses set .out numerous actions by the other party which destroyed the marriage. It is safe to say that virtually the only things they agreed upon were the date the appellee and the appellant were married and the fact that they had been separated for three years prior to the divorce action. We deem it unnecessary to set out the testimony in sordid detail for we have read the briefs and examined the record and we are unable to say that the chancellor’s findings that the appellant was more at fault in destroying the marriage is against the preponderance of the evidence.

As to the appellant’s contention that the chancellor erred in failing to award alimony, the award of alimony is within the sound discretion of the chancellor in divorce cases. In Wiles v. Wiles, 246 Ark. 289, 437 S.W. 2d 792 (1969), we said:

“The chancellor has broad powers and wide discretion in fixing or refusing support payment and we do not disturb his action unless there is an abuse of discretion . . . In each case proper consideration must be given to the respective financial conditions of the parties and many other circumstances, including their mutual conduct. .

In Walker v. Walker, 248 Ark. 93, 450 S.W. 2d 1 (1970), the chancellor refused to award alimony and in that case we said:

“We must examine the particular facts and circumstances in the case to determine whether the chancellor abused his discretion.
... As in the case of a money award of alimony to the defaulting wife, such an allotment would be in the sound discretion of the chancellor. We repeat that we are unable to say the chancellor abused his discretion in refusing to award alimony in any form.”

We are unable to say the chancellor abused his discretion in failing to award alimony in the case at bar.

In argument under her third point the appellant states she has no objection to the chancellor’s holding that the jointly owned properties, excluding home furnishings, should be sold and the proceeds equally divided. It appears that the appellant’s primary objection was to the chancellor’s award of $40,000.00 representing the value of her interest in the piano and organ business. The appellant then recites the time, effort and money she had put into the business in past years and cites cases in which the wife was awarded half the value of business property in divorce settlements.

During the course of the trial both parties prepared financial statements listing their assets and income. The appellant complains that the chancellor accepted the appellee’s estimate of value of the business at $57,000.00; but, according to a financial statement as of March 15, 1972, offered by the appellant as her exhibit No. 2, the net worth of the business including a truck, boat, bus, and inventory, was only $81,017.62. Consequently, the chancellor’s award of $40,000.00 came to approximately 49% of the highest estimated value and there was undisputed testimony that the business had lost money since March, 1972. We conclude that the value of the business at $57,000.00 as found by the chancellor was not against the preponderance of the evidence.

The appellant also argues that the chancellor erred in not awarding her a separate interest in a cabin cruiser and a note held by the appellee on the sale of some property on South Taylor Street. There is evidence in the record that the appellee bought and paid the appellant for her interest in these items. From the entire record before us in this casé we are unable to say that the chancellor’s findings and decree were against the preponderance of the evidence, or that the chancellor erred as a matter of law.

The decree is affirmed.

Fogleman, Byrd and Holt, JJ., not participating.

      Now Ark. Stat. Ann. § 34-1202 (7) (Supp. 1973).


author: Conley Byrd, Justice.

text:
    Barbara C. JOHNSTON v. CITY of Pine Bluff
    75-43
    525 S.W. 2d 76
    Opinion delivered June 23, 1975

      Thweatt & Allen, for appellant.

      Tim Boe, for appellee.
   Conley Byrd, Justice.

Appellant, Barbara C. Johnston, was fined $59.45 in the Municipal Court of the City of Pine Bluff for violating a municipal speeding ordinance containing a maximum possible fine of $500 and six months in jail. On appeal to the circuit court her motion for a jury trial was overruled and she was fined $10 and costs for a total of $25.40. Her only contention for reversal is that the trial court erred in denying her a jury trial. The City of Pine Bluff seeks to sustain the denial of a jury trial on the theory that it was only a petty offense and for petty offenses the Constitution does not guarantee the right to trial by jury.

Our statutes after providing the procedure for perfecting an appeal from the municipal court to the circuit court, see Ark. Stat. Ann. § 26-1307 (Repl. 1962), Ark. Stat. Ann. §44-502 (Repl. 1964) and Ark. Stat. Ann. § 44-505 (Repl. 1964), provide for a trial de novo on appeal. See Ark. Stat. Ann. § 44-509 (Repl. 1964) and Ark. Stat. Ann. § 26-1308 (Repl. 1962). No distinction is made between petty offenses and other misdemeanors. Such statutes have ordinarily been construed as meaning that the case stands for trial in the circuit court on the same footing as though the case had originated in the circuit court. See State ex rel Suchta v. District Court of Sheridan County, 74 Wyo. 48, 283 P. 2d 1023 (1955). With respect to criminal trials in the circuit court, Ark. Stat. Ann. § 43-2105 (Repl. 1964), provides that: “Issues of fact shall be tried by a jury.” Ark. Stat. Ann. § 44-115 (Repl. 1964), with respect to a violation of a city ordinance provides:

“All trials in the police court, for a violation of the bylaws or ordinances of such city, shall be before the police judge without the intervention of a jury, but the defendant, upon appeal, shall have the right to a jury trial in the circuit court, ...”

It follows that the trial court erred in denying a jury trial.

Since the public policy of this State, as set forth in the foregoing statute disposes of the issues here, we need not reach the constitutional issues raised by the City of Pine Bluff nor its assertion that the offense involved is a petty offense. The City’s suggestion that appellant waived her right to a jury trial by not seeking an earlier ruling on her motion is without merit. See Ark. Stat. Ann. § 43-2108 (Repl. 1964).

Reversed and remanded.


author: Frank Holt, Justice.

text:
    Johnny Gilbert WITHAM v. STATE of Arkansas
    CR 75-26
    524 S.W. 2d 244
    Opinion delivered June 23, 1975

      Harmon & Holtoff, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

A jury found appellant guilty of first degree murder and his punishment was assessed at life imprisonment in the Department of Correction. We first consider appellant’s contention by his present counsel that the evidence is insufficient to establish premeditation and deliberation, which are essential elements of first degree murder. On appellate review we consider only that evidence most favorable to the appellee and affirm if there is any substantial evidence. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).

The victim, Stanley Wells, was seen entering a 1962 light colored Chevrolet with appellant about 1:30 a.m. on March 12. Later that morning, at approximately 3 a.m., appellant told his brother’s girl friend that he and his brother “had really done it this time,” “had beaten a man to death,” and the body was “at the grave yard on Reynolds Road.” She testified that appellant’s “shirt had blood on it.” “His jeans had blood on them and his shoes were soaked with blood.” The light colored Chevrolet was “covered with blood.” “]T]he windshield on the driver’s side and the whole hood of the car had splatters all over it.” The appellant, in her presence, washed the blood off the outside of the car. The appellant showed her a “piece of pipe,” which was used in the fatal beating.

The assistant state medical examiner testified that the victim’s death was caused by approximately seventeen separate blows to the head by a blunt instrument. The force of the blows caused skull fractures to the extent that the brain was exposed. The victim was identifiable only by fingerprints as a result of these head wounds.

It is well established that the requisite elements of premeditation and deliberation in first degree murder can be inferred whenever the circumstances justify such an inference. Robertson v. State, 256 Ark. 366, 507 S.W. 2d 513 (1974); Walker v. State, 241 Ark. 300, 408 S.W.2d 905 (1966); and House v. State, 230 Ark. 622, 324 S.W.2d 112 (1959); and Weldon v. State, 168 Ark. 534, 270 S.W. 968 (1925). In Weldon we specifically recognized that the manner in which a deadly weapon is used can be sufficient to justify a finding by the jury that the weapon was used with a premeditated and deliberate intent to kill. In the case at bar, we are firmly of the view that the savagery of this attack by repeated blows to the head to the extent the victim was unrecognizable is ample substantial evidence from which the jury could infer the premeditated and deliberate intent to kill.

Neither can we agree with appellant’s assertion that photographs of the deceased’s body served only to inflame the minds of the jurors. The court limited these photographs to those depicting the scene of the crime and the decedent’s condition there. In Perry v. State, 255 Ark. 378, 500 S.W.2d 387 (1973), we said:

We agree with appellant that these admitted should have been rejected if their sole effect was to inflame the passions of the jurors against him. **** Otherwise, the admission and relevancy of photographs are matters resting largely in the discretion of the trial judge. **** An objection that photographs tend to inflame or prejudice the jury is not valid, if they are otherwise properly admissible.

Suffice it to say that the pictures were certainly relevant as an aid to the jury from which it could infer the essential elements of first degree murder, which are disputed by appellant. It is difficult to perceive that one could kill another in such a savage manner, as here, and then be permitted to shield himself by the exclusion of these photographs, which corroborate witnesses and so accurately depict the ferocity of the attack apparently upon an unarmed victim. 1

Appellant also asserts that a tire was improperly admitted into evidence because the state failed to establish a proper chain of custody of a tire during a six day interval after the sheriff impounded the car. Therefore, appellant contends that someone could have “changed” or switched the tire, which was permitted into evidence. Tread indentations from the tire, which were taken from the impounded 1962 white Chevrolet, matched the tire tracks found at the scene of the erime. It is not contended that this is not the car connected with the offense. A witness saw the victim enter the same car just an hour or so preceding the murder. Shortly afterwards,* another witness observed the car covered with blood and saw appellant wash blood off the automobile.

In Fight v. State, 254 Ark. 927, 497 S.W.2d 262 (1973), we said “[T]he purpose of the chain of identification is to prevent the introduction of evidence which is not authentic.” In Freeman v. State, 238 Ark. 804, 385 S.W.2d 156 (1964), appellant contended that it was not established that a shell and three empty cartridges were the same as the ones in the gun at the time of the shooting. In affirming, we said “ [T]hey were found in appellant’s gun soon after the shooting, and there was no.evidence to show the gun was tampered with in the meantime.” In the case at bar, the tire was removed from the car connected with the alleged crime and there is no evidence or hint of any that the tire was tampered with during the six day interval that the sheriff had impounded the car.

Affirmed.


author: Carleton Harris, Chief Justice.

text:
    Clete CALLAWAY, Jr. v. STATE of Arkansas
    CR 75-38
    524 S.W. 2d 617
    Opinion delivered June 30, 1975

      Dennis K. Williams, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Gary Isbell, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

Cíete Callaway, Jr., appellant herein, was found guilty of murder in the second degree by a jury which fixed his punishment at 21 years confinement in the Arkansas Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, five points are relied upon which we proceed to discuss, though not in the order set out by appellant.

It is contended that the verdict is not supported by substantial evidence. We disagree. The evidence on the part of the state was that on May 24, 1974, Frank Smith was sitting on his porch around 11:00 P.M. talking with a friend, Morris Bigelow, when a car came around the corner; someone fired from the car, and Bigelow, frightened, left immediately. Eva Jean Cook, who lived “a house away” from Smith testified that she heard Smith talking on his porch before the shooting and after the shots, she went to the Smith premises, observing Cíete Callaway with a shotgun in his hands, Smith lying at the corner of the house near the porch. Before calling the police and an ambulance, the witness stated that she heard Cíete say, “I told you I was going to kill you, you son of a b...” She said that Callaway then got in his car and left. The witness testified that she heard two shots, seeing the first one fired, and subsequently hearing a second. Callaway was arrested at 11:45 P.M., and told the arresting officer that he was on his way to the police station. Officer Edrington testified that appellant had a 12-gauge shotgun, with three loaded shells, the gun normally holding five shells, and not being plugged. Callaway contended that he acted in self-defense. He said that he had observed Smith earlier passing by his house, and that he then went in and obtained his shotgun; that he was fearful since Smith had earlier shot him, and had threatened to kill him. He said that when he drove in front of Bigelow’s house, he saw Smith “coming around the house”; that Smith hollered, “ ‘Hey Red,’ and when he said that I went to shooting. ’ ” Appellant added that Smith had his hand in his pocket and when the latter said that he wanted to talk to appellant, “I went to shooting.” He said he shot Smith the second time because “I didn’t want him to kill me.” The jury is the fact-finder, and it is apparent the evidence was sufficient to sustain the conviction.

It is next asserted that the trial court erred in allowing the state to introduce a statement of appellant made a short time after the shooting of Smith. According to Lt. James Cowart, Callaway was arrested at 11:45 P.M., informed of his rights under Miranda at 12:08 A.M. and after appellant had first executed a waiver, wherein he acknowledged that he had been advised of his rights, the waiver form also listing same, his statement was taken beginning at 12:20 A.M. The statement was subsequently transcribed and Callaway, after suggesting certain corrections, and initialing same, signed the statement. The court conducted a Denno hearing in chambers and found that the statement was voluntarily made.

It is argued that Callaway has no formal education and can only write his name because his sister taught him to do so, and that appellant did not understand his rights when he signed the waiver. Complaint is also made that his statement was taken too soon after the offense occurred. The answers to the questions in the written statement pretty well reflect that they were the actual answers of appellant without any prompting and, while he may not have had much formal education, it is evident that he understood the statement for two corrections were made. The complaint that the statement was taken too soon is a little unusual since most complaints in this category are that defendants are held for too long a period of time before any statement is taken. Certainly, there is no showing that Callaway was taken advantage of, or treated unfairly, due to the statement being made within the hour. Appellant had not been wounded, and according to the testimony, appeared to be in full possession of his faculties and “very calm”.

There is no contention that appellant was mistreated or coerced into signing the statement; in fact, the defense offered no testimony at the Denno hearing. We find no merit in the argument.

It is next contended that the court permitted the state to impeach its own witness, Eva Jean Cook, and that this constituted error. This point is somewhat difficult to understand. The witness had made a statement to the officers after the shooting and part of her testimony was slightly different from a statement that had been made in the written statement. Actually, considering the testimony given by the witness, heretofore set out, the conflict was minor, but she was asked about this conflict by the state’s attorney, the prosecutor referring to the statement that she had made. Defense counsel objected to the use of the statement, declaring that he had not seen it, whereupon the court directed the prosecutor to furnish counsel with a copy. The next objection was that leading questions were being asked and the court commented that the state’s attorney was only trying to refresh the memory of the witness. The prosecutor commenced reading from the statement, but the court stopped counsel, and at the request of defense counsel, ordered the portion read stricken from the record.

We do not agree that the questioning of the witness constituí fed an effort to impeach her testimony for the witness never denied giving the written statement, nor any of its contents. To the contrary, she agreed that she had made the statement and she testified that it was the truth; it appeared that the witness had simply forgotten the particular fact that she was being interrogated about. We find no violation of Ark. Stat. Ann. §§ 28-706 and 28-708 (Repl. 1962).

It is asserted that the trial court committed error in allowing the state to deliver to the jury transcribed written statements of appellant’s alleged confession while the tape containing appellant’s statement was being played, “said tape being the best evidence.” Callaway’s statement had been recorded on tape and was subsequently reduced to writing by a stenographer, who did not testify at the trial, and who was not present when the tape was made. Copies of the statement reduced to writing were passed out to members of the jury. Counsel for appellant objected, stating:

“If Your Honor, please, I would object, and ask that the recording is the best, the tape is the best evidence.
THE COURT:
Yes, sir. The tape is the best evidence, and it is my understanding the State proposes to play the tape.
Is this correct?
MR. SMITH:
Yes, Your Honor.”

The same objection was subsequently reiterated, overruled, and the tape was played, the jurors all having a copy of the transcription.

Here, on appeal, it is argued that error was committed in permitting the jurors to read copies of appellant’s statement, while the tape was being played, because, says appellant, this procedure permitted undue emphasis to be placed on the statement. Appellant cites the Oklahoma case of Bonicelli v. Stole, 339 P. 2d 1063 (Okla. Cr. App.) and Duggan v. State, 189 So. 2d 890 (Fla. App.). Both of these cases hold that to permit written transcripts of a tape to be furnished to the jury is error, contrary to the rules against repetition, improper emphasis, and hearsay. The question has never been presented to this court. As to the objection made (in effect being that the written statements were hearsay), we find no merit for the reason that the statement was signed by appellant and changes in the statement initialed by him. It will be noted that the objection made does not go to the question of improper emphasis or undue repetition and this objection not having been made, we cannot pass upon the issue.

Finally, it is alleged that the trial court erred in not allowing appellant to snow the full extent of the seriousness of the wounds received when shot by Smith on February 9, 1974, and in not allowing Solomon Witherspoon, a witness on behalf of appellant, to relate threats made on that date that he intended to kill appellant. Dr. Gene M. Townsend, called by appellant, testified that he had treated Callaway early on the morning of February 9, 1974. From the record:

“Q. Can you describe to the jury the gunshot wounds and where he was shot?
‘. Well, yes, sir. He had one gunshot wound in the left flank area, and one in the left side of the face. And, I don’t recall, but he may have had a flesh wound in the left shoulder. That’s a vague recollection. It was of no medical significance, and I didn’t write it down if he did. But he had these two which were of considerable significance. The one in the left flank pursued a course upward and to the right, fragmenting the spleen, perforating the front and back of the stomach, completely tearing out the left lobe of the liver, penetrated the pericardium, which is the sac around the heart, and came to rest just to the right of the breastbone. The one in his . . . The wound of entrance in his left face was just in front of his left ear, and there was no wound of exit.”

Counsel for the state then announced that he was objecting to the line of questioning, stating that it was irrelevant and immaterial. The court said that it considered the testimony of the doctor relevant to the extent of the number of times that the man was shot, the fact that he was shot, but the subsequent treatment was not relevant. The examination then proceeded as follows:

“Q. What bullets did you state that you removed from him?
A. I removed both of those that I described, the one into his left face and the one that entered through the left flank.
Q. Did you remove the bullet in his head through his nostril? ***
A. Yes, sir. I removed the one from the face through his nostril. It had lodged in his posterior pharynx.
Q. And the one that went into his flank, where did you remove that from?
A. Just to the right of the breastbone.
Q. To the right of the right breastbone?
A. Just to the right of the . . . The breastbone is in a center line. It’s just to the right side.
Q. And he has been a patient of yours all during this time?
A. Yes, sir.
Q. And still is a patient?
A. Well, not in connection with that. He’s over that injury.”

It thus appears that the doctor gave a pretty thorough description of the injuries and the only complaint reflected by the record was that the doctor was not permitted to testify to “the seriousness of it” and “the defendant’s suffering.” Of course, when the doctor said that two of the wounds were of “considerable significance”, he was testifying as to the seriousness of the wounds, and he could hardly have testified himself as to appellant’s suffering.

Solomon Witherspoon testified on behalf of the appellant as to events which occurred on February 9. After telling about the shooting, Witherspoon testified further:

“And Frank come in the back door there. He went out to load his gun. I come out — out from there with Frank. So, he said he loaded his gun and when he run out, he run out of bullets, and so the boys ...”

At this point, the state objected to the testimony as being irrelevant, while counsel for defendant said he was trying to show Smith’s intent, “reloading the gun, trying, wanting to kill him.” Of course, the testimony quoted reveals the gun was reloaded and implies the purpose of the reloading. At any rate, counsel apparently accepted this ruling. Thereafter, appellant’s counsel inquired of the witness if Frank Smith made any statements that he would kill Cíete Callaway. An objection by the state was sustained and this concluded the testimony of Witherspoon.

We hold there was no error, it being sufficient to point out that no proffer of Witherspoon’s testimony was made and we accordingly do not know what answer the witness would have given. Dixon v. State, 228 Ark. 430, 307 S.W. 2d 792.

On the whole case, we find no reversible error.

Affirmed.

      The evidence reflected that on February 9, 1974, Smith, Callaway, and several other persons, were gambling and that an altercation arose between Smith and appellant. On that occasion, Smith shot Callaway several times and Callaway spent about a month and a half in a hospital before recovering from wounds administered in the shooting.

        .Miranda v. Arizona, 384 U.S. 436.

        Jackson v. Denno, 378 U.S. 368.


author: George Rose Smith, Justice.

text:
    Charles E. BROWN v. STATE of Arkansas
    CR 75-39
    524 S.W. 2d 616
    Opinion delivered June 30, 1975

      Harold Hall, by: John Achor, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Alston Jennings Jr., Asst. Atty. Gen., for appellee.
   George Rose Smith, Justice.

Upon charges of burglary and grand larceny the appellant, having waived a jury trial, was found guilty upon each count. There was also a finding of guilty under the habitual criminal statute, two previous convictions for burglary and two for grand larceny being shown. The trial judge imposed two 21-year sentences, to run concurrently. For reversal the public defender contends that the evidence, being circumstantial, is insufficient to support the finding of guilt.

On June 13, 1974, a Little Rock police officer, in response to a burglar alarm call, went to a building at 2800 Cumberland Street. There he found the appellant putting an air conditioner (valued at about $460) into the trunk of his car. There was uncontradicted proof that the building had been broken into and that the air conditioner had been removed. The defendant testified that as he was driving in the neighborhood a stranger flagged him down and offered him $15 to help move the air conditioner, which was already at the curbing, to somewhere on 33rd Street. When the police officer arrived the stranger apparently saw him and “just vanished.”

In questioning the sufficiency of the proof counsel rely upon the rule, frequently stated in instructions to the jury, that circumstantial evidence must be consistent with guilt and inconsistent with any other reasonable conclusion. That rule, however, as we pointed out in Abbott v. State, 256 Ark. 561, 508 S.W. 2d 733 (1974), is usually for the jury (or for the trial judge in a non-jury case), the test in this court being the requirement of substantial evidence. As we said in Abbott: “It is only when circumstantial evidence leaves the jury, in determining guilt, solely to speculation and conjecture that we hold it insufficient as a matter of law.” Here the trial court did not have to resort to mere speculation to conclude that it was not likely that some unknown third person stole an object such as an air conditioner with no means of carrying it away except by flagging down a passing motorist, after dark.

Affirmed.


author: Lyle Brown, Justice.

text:
    Betty H. CARNEY v. Maupin CUMMINGS, Judge
    75-65
    524 S.W. 2d 623
    Opinion delivered June 30, 1975

      J. Wesley Sampler, for petitioner.
   Lyle Brown, Justice.

This is a petition for writ of prohibition asking this court to enjoin the circuit judge of Washington County from proceeding further in a suit for malicious prosecution. There is no dispute about the facts. Plaintiff in the court below alleged in a complaint for malicious prosecution that the petitioner here (defendant below) is a resident of Benton County. The record discloses that service of summons was had in Benton County. Petitioner argues that by reason of her residence in Benton County, and the service of summons upon her in Benton County, the venue is not in Washington County and that Benton County is the correct and only venue of an action of malicious prosecution against her.

Service of summons in this case is governed by Ark. Stat. Ann. § 27-613 (Repl. 1962) which says: “Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” In other words the proper venue for the filing of this cause is in the county of petitioner’s residence or in a county where she may be served with summons, under the provision of the quoted section.

A case very much in point is Baker v. Fraser, 209 Ark. 932, 193 S.W. 2d 131 (1946). In that case Baker filed a civil action for libel in Independence County against Fraser and other parties. The three defendants were all residents of Pulaski County and this court held that the filing of the suit in Independence County and obtaining service in Pulaski County was of no avail. It was held that libel is a transitory action and must be brought in the county where one of the defendants resides or where they may be served with summons. Another case in point is that of International Harvester v. Brown, Judge, 241 Ark. 452, 408 S.W. 2d 504 (1966).

Writ granted.


author: John A. Fogleman, Justice.

text:
    Ronald PRICE, Patsy Price NORRIS and Sandara Price CLARK v. Edith M. PRICE, Administratrix
    75-31
    527 S.W. 2d 322
    Substituted Opinion on Denial of Rehearing delivered September 22, 1975

      Wilson, Blaney & Dougherty, P.A., by: Mike Wilson, for appellants.

      Stubblefield & Matthews, for appellee.
   John A. Fogleman, Justice.

This is the second appeal by the three heirs of Carrol W. Price who are the step-children of his widow and administratrix, Edith M: Price, in their efforts to force her to account for her thirteen-year administration on his estate and to obtain their share of the property of their father who died December 4, 1960. See Price v. Price, 253 Ark. 1124, 491 S.W. 2d 793. On the first appeal we disallowed the widow’s claim that the entire 3.62-acre tract on which the deceased had operated a trailer park in Jacksonville constituted her homestead. We also held that the widow was entitled to her proportionate part of the rents from that portion of the land not a part of the homestead along with the rents from the homestead itself, citing Ark. Stat. Ann. § 62-2501.3 (Repl. 1971) and Mayo v. Arkansas Valley Trust Co., 132 Ark. 64, 200 S.W. 505. We took pains to point out the duty of the administratrix, as a fiduciary, to act toward the heirs in the utmost good faith. We remanded the case for further proceedings. It is essential to the treatment of the points for reversal that we outline these proceedings in considerable detail.

Appellee’s first inventory was filed on May 29, 1973. One acre of the 3.62-acre tract, which constituted a trailer park at the time of the death of Carrol Price and has been operated as such ever since, was listed as homestead at a value of SI,850. Edith M. Price, as widow, incorporated into her inventory as administratrix an application to have this tract reserved from sale as homestead “as directed, by the March 5, 1973 opinion of the Supreme Court of Arkansas.” The remaining 2.62 acres was listed with the value “undetermined”. Personal property was listed at a total value of $327.50. Appellants filed exceptions, alleging that the widow was entitled to no more than one quarter of an acre as homestead, saying the value of the property was far in excess of $2,500, and that the personal property was grossly undervalued. On November 8, 1973, the widow, for the first time, filed a petition for allotment of dower, saying that she was entitled to 1.21 acres in addition to the homestead claimed in the inventory which she alleged had been duly reserved from sale “pursuant to Price v. Price, 253 Ark. 1124, [491 S.W. 2d 793].” Appellants responded, denying the allegations relating to the homestead.

On March 19, 1974, appellants filed their petition for removal of appellee and revocation of her letters, alleging that she had consistently failed to perform her duties and had not only failed to file a timely inventory, but had filed a grossly erroneous one, that she had claimed a homestead interest in the real estate in excess of the statutory limitation and in knowing violation of this court’s opinion on the previous appeal, and that she had not only failed to satisfactorily account for all the personal property of the estate, but had made no effort to make an accurate and true accounting.

On March 28, 1974, the court appointed Richard Adair, Myron Traylor and Bart Gray as commissioners to lay off and designate the widow’s dower by metes and bounds. The report of these commissioners was filed April 5, 1974. It described 1.21 acres as dower, saying that these lands have an estimated value of one-third of the 3.62 acre tract. On May 2, 1974, the probate court entered an order confirming the report of the commissioners. Exceptions to the report were filed May 8, 1974, alleging that the property was not susceptible to division in kind, that the commissioners failed to view the property and merely signed a report presented to them by Edith M. Price, that the commissioners failed to take into account the income from the respective parcels of the tract and that the whole tract should be rented out pursuant to Ark. Stat. Ann. § 62-716 (Repl. 1971) with one-third of the rentals paid to the widow as dower.

On August 2, 1974, Mrs. Price filed an accounting to cover the period from January 1, 1961, ending December 31, 1973. It was not in any respect in compliance with the requirements of Ark. Stat. Ann. § 62-2803 and 2804 (Repl. 1971) and little nearer the form prescribed for an accounting than was the one before us on the earlier appeal. It does not comply with the requirements for an accounting mentioned in our opinion on that appeal. In this accounting the widow again claimed all the personal property as widow’s allowances. She showed rentals of the real property totaling SI5,984.69, relying completely upon her individual income tax returns, which she considered too bulky to attach. She claimed that one half or more of the rentals were attributable to the one acre she claimed as homestead and that S3,684.47 was the portion of rents due her as dower, leaving only $2,-584.66 for which she was accountable. In this accounting she said that there was due each stepchild the sum of S66.27 per year but that substantial duties she performed in operating the trailer camp greatly exceeded this amount and requested that the court allow her a reasonable compensation for such services on account of the real property, and asked allowance of fees for her attorney and an accountant employed by her without court authorization. She stated that, prior to the date set for hearing on the accounting, “the administratrix will file a petition for statutory allowances and a petition to sell the real property of the estate.”

Exceptions were filed August 9, 1974. Appellants alleged that the accounting was not in statutory form or in compliance with requirements for accounting; denied the allegations as to widow’s allowances, alleging that certain personal property was the property of the trailer court business; denied the widow’s entitlement to one acre as homestead; claimed interest; denied that the widow was entitled to the proportions of the rent she claimed; denied her right to employ counsel on her own terms and an accountant without permission of the court.

On August 16, 1974, appellee filed a petition alleging that it was necessary and to the best interest of the estate that its real property be sold subject to homestead and dower of the widow. On the same date, she filed a petition for award of all furniture, furnishings, appliances and related items necessary for family use and additional property of the value of SI,500. It was ordered that the petition for sale of the real estate be heard on September 3, 1974.

On August 20, 1974, a petition was filed by appellants demanding that the probate clerk appoint three commissioners pursuant to Ark. Stat. Ann. § 62-603 (Repl. 1971) to appraise the homestead claimed, and praying that the same be sold if valued in excess of $2,500. On the same date the Clerk of the Probate Court appointed Bartus M. Gray, James Peacock and Doug Wilkinson as commissioners to appraise the homestead. Still on the same day, appellants filed their response to the petition of the administratrix for sale of the real estate, alleging once more that the widow was entitled to no more than one-quarter acre of the real estate as homestead, and that the petition alleged no statutory grounds for the sale. They also filed a response to the petition for statutory allowances, asking that the widow be denied statutory allowances because of her mismanagement of the estate, conversion of rents and profits and failure to account.

On August 28, 1974, appellee filed her objections to the appointment of commissioners to appraise the homestead, saying that summons on the petition was not served on her; that the time fixed for trial and disposition was too short to permit compliance; that she had filed an accurate description of the one acre of land claimed as her homestead “as directed by the opinion of the Supreme Court in the case of Price v. Price, 253 Ark. 1124, 491 S.W. 2d 793”; that the homestead was duly reserved from sale and that such claim of homestead was served on appellant Roland Price on May 29, 1973; that on May 2, 1974, an order assigning dower was entered, no appeal was taken from this order approving the report of the commissioners, and that more than 90 days had elapsed since its entry; and that no notice was given to Edith M. Price concerning the appointment of commissioners.

Also on August 28, 1974, the appraisement of the commissioners was filed stating that the fair market value of the one acre claimed by Mrs. Price as homestead was $29,403. On the next day the administratrix moved the court to strike the appraisement because it was filed after Mrs. Price had filed objections to the petition for appraisal and because the one-acre homestead had become vested in the widow and reserved from sale on May 29, 1973.

A hearing was held on September 3 and 4, 1974, apparently on all pleadings. At the very outset the probate judge questioned the completeness of the accounting, and appellants objected to testimony by appellee to vary, explain or contradict the accounting filed.

It was agreed that the three commissioners who signed the appraisal of the homestead, if called to testify, would verify the statements made in the appraisal. Appellee objected to the testimony of the commissioners who laid off dower, however, on the ground that no motion to set aside the order of May 2, 1974, approving the report of the commissioners, had been filed within 90 days. Actually, it appears that the objection was that the hearing on appellants’ exceptions to the order on the report of the commissioners had not been heard within 90 days after it was entered, so it had become final insofar as action of the trial court was concerned because of the provisions of Ark. Stat. Ann. § 22-406.3 (Supp. 1973).

Mrs. Price testified that the value of her services would be such that there wouldn’t be anything left after deducting that value from the rents. She presented her Exhibit 1, which was a statement of net income from the trailer park as disclosed by her individual income tax returns. The exhibit was prepared by an accountant on the assumption that the returns (which he did not prepare) were correct. The accountant said that no books had been kept on the operation but that Mrs. Price had in her possession a lot of receipts and paid bills. He had attempted to allocate rents to the one-acre “homestead” and the remaining lands simply on the basis of Mrs. Price’s statement that the rents from the homestead exceeded one-half of the total.

Mrs. Price admitted a tendency to “draw a blank” when she was questioned “fast” and an inability to “remember things”. She could recall that she had testified both in 1962 and in 1972 that she had commingled the proceeds collected from the property and her social security payments, yet she claimed that virtually all expenditures she made, including those for improvements and Repairs to the property, had been made from money she received as social security and that she used the rent proceeds only when she paid a large liability which exceeded her balances from social security payments. She had testified in 1972 that after she paid water bills, she supposed that the remaining $560 per month from rents went for groceries. She did say then, however, that she did have to pay for whatever needed repairing. In 1962, she had testified that the improvements were made from the profits of the business and her money from social security. Her latest testimony still indicates a commingling of funds.

When it was pointed out that, since the net income shown by the accountant was taken from Mrs. Price’s individual income tax returns, substantial amounts taken as depreciation on those would actually result in a credit to the administratrix for those amounts, her attorney volunteered that the compensation to which she was entitled would far exceed any net amount accruing to the beneficiaries plus depreciation. The probate judge appropriately commented that this was speculation.

Other testimony and proceedings will be referred to in treatment of the specific points for reversal, in all of which we find merit.

I

THE TRIAL COURT ERRED IN ALLOWING THE ADMINISTRATRIX’ CLAIM OF HOMESTEAD, AND REFUSING TO ORDER A SALE OF THE HOMESTEAD PURSUANT TO ARK. STAT. § 62-601.

We do not agree with appellants that the value of the tract claimed as homestead, as between the widow and heirs, is to be determined on the date it is claimed by the widow. The Alabama case relied upon by appellants, Moore v. Scharf, 17 So. 933, 110 Ala. 518 (1895), is really not in point. It involved construction of Alabama statutes involving a debtor’s, not a widow’s, homestead in a case involving an issue as to whether the value of the debtor’s homestead should be determined at the time of trial or at the time it was claimed by the debtor. The court determined that the critical time in that case was the time of trial. The Alabama courts have repeatedly held, however, that the value of the homestead, when claimed by a widow, is to be determined as of the date of decedent’s death. Alford v. Claborne, 229 Ala. 401, 157 So. 226 (1934); Walton v. Walton, 256 Ala. 236, 54 So. 2d 498 (1951); Matthews v. Matthews, 253 Ala. 116, 43 So. 2d 131 (1949); Haynes v. Haynes, 236 Ala. 331, 181 So. 757 (1938); Sims v. Kitchens, 233 Ala. 484, 172 So. 638 (1937); Gray v. Weatherford, 227 Ala. 324, 149 So. 819 (1933); Ticer v. Holesapple, 226 Ala. 271, 146 So. 614 (1933).

The Supreme Court of Nebraska has also held that the value at the date of the decedent’s death governs, relying upon what it called the well settled rule that this value governs when a creditor claims that the homestead exceeds the statutory limit on value. These holdings are harmonious with our result in O’Connell v. Sewell, 191 Ark. 707, 87 S.W. 2d 985, where we held that the children’s homestead extended to an entire 160-acre tract owned by their mother at the time of her death, to the exclusion of her widower’s curtesy rights, because the entire tract was worth only $480 when she died, disregarding the fact that its value had substantially increased because of royalties from an oil lease. But appellants’ reliance is not placed solely upon this contention. They contend, and we agree, that the evidence clearly shows that the homestead claimed was in excess of $2,500 in value.

We pointed out on the first appeal that the burden was on the widow to establish the value and extent of the homestead and that she could not unilaterally and summarily select the part she claimed as homestead out of the whole tract in arbitrary or capricious disregard of the rights of others. Appellee seems to have proceeded upon the theory that this court directed that she claim one acre as her homestead. There is no justification for this position. We specifically pointed out that the homestead right was limited to a value of not more than $2,500, if in excess of one quarter of an acre. Where it exceeds that value, it is limited to one quarter acre. See also Art. 9, § 5, Constitution of Arkansas. Barnhart v. Gorman, 131 Ark. 116, 198 S.W. 880.

It is significant that Mrs. Price testified at the hearing in 1962 that the property was in the industrial area inside of Jacksonville city limits only two blocks from the interstate highway on the access road and that two apartments on the property brought $50 per month each in rents. At the 1972 hearing, prior to the first appeal, she directed her attention to the one-fourth acre upon which the dwelling house she and her husband were living in at the time of his death was located, saying that two apartments and one trailer space thereon were then renting for $190. At the hearing in September 1974, her son, whom she called as a witness, said that only one of these apartments was on the one acre she claimed as homestead and the other was on the tract she claimed as dower. The apartment he said was on this one acre seems to have been in the Price dwelling house, according to the testimony of Mrs. Price in 1962. Mrs. Price testified that the one acre claimed as homestead was the best property to rent. Her eighteen-year-old son testified that there were nine trailer spaces and one apartment on the one acre Mrs. Price had claimed as homestead, and six trailer spaces and one apartment on the 1.21 acres she claimed to have been assigned as dower. On the remaining lands, which he said were susceptible to flooding, there were three trailer spaces and room for two others, but no gas line to those spaces. He said all spaces rented for the same amount, but that the spaces on the one-acre homestead were rented most of the time and that most vacancies occurred on the lands the widow did not claim as either dower or homestead. He said the one acre claimed as homestead had 339 feet of frontage. It seems clear from the testimony that the dwelling house is located on the most valuable part of the property if the street frontage is included.

There was absolutely no evidence to support the $1,850 value assigned by Mrs. Price to the one-acre tract claimed by her. It was demonstrated by cross-examination of Mrs. Price that she had no basis at all for that figure. She admitted that it was the most valuable part of the property and that she did not know what it was worth when her husband died. When pressed, she “supposed” that she and her attorney decided what the one acre was worth and agreed on the figure used. She recalled that some of the original tract had been sold for highway right-of-way, but could not remember the consideration.

The probate judge, after hearing this evidence, held that, under our holding on the first appeal, Mrs. Price was entitled to the one acre claimed by her, saying that it was not worth more than $2,500 at the time of Carrol Price’s death. In this, he was clearly in error. When appellants’ attorney protested that they had not presented their proof on the point, the court permitted them to offer it, apparently as a proffer.

Appellant, Sandra Price Clark, testified that she was thirteen years of age when her father died and that the trailer park had been built by her father, brother, sister and herself and that her father had paid about $2,000 for the real estate. She remembered that her father had sold a strip 12’ x 250’, directly in front of the acre claimed as homestead by Mrs. Price, to the highway department for right-of-way for $4,000 in 1957. She said that the gross rental on that one acre amounted to about $300 per month when her father died. She was of the opinion that the one acre had a value of $10,000 to $20,000 at the time of her father’s death.

Patsy Price Norris was twenty years of age when her father died. She said that the trailer park was then only five years old and in good condition, and that it enjoyed 90% occupancy of the 25 trailer spaces. She said that the property then had a value of $20,000 and that the claimed homestead took up two-thirds of the frontage. She referred to the “Texaco property” on the other side of the freeway which she said sold for $142,000 for one acre. She said that she had held a job in the real estate business at one time and had a general familiarity with the income approach to property evaluation. Using this approach, by rule of thumb, she used a $10 per month net per trailer space and assigned a value of $14,400 to the one acre. She said that when her father died the net income per space was at least $10 per month.

After hearing this testimony, the probate judge seemed to be in doubt about his previous ruling, and said that it remained undecided whether the whole property should be sold and $2,500 given the widow in lieu of homestead or whether the homestead should be set aside to her. Nevertheless, the court ordered a sale of the property, pursuant to appellee’s petition, subject to the dower and homestead the widow had claimed.

Even though we might find weaknesses in the value evidence on behalf of appellants, it, together with admitted facts relating to location and advantages of the property, certainly preponderates over that of Mrs. Price, which had no reasonable basis at all.

It is clear to us that the widow has failed to meet the burden of showing that she was entitled to more than one-fourth acre homestead. It is also clear that she has borne this burden for nearly 15 years and that appellants’ contention that she was not entitled to more than one-fourth acre should have been well known to her, at least since a hearing held on June 8, 1972. At that hearing her own attorney questioned her specifically about the buildings located on the quarter acre on which her dwelling house was located. It is not absolutely clear from the record that Mrs. Price claimed that she was entitled to more than one-fourth acre as homestead prior to her brief on the first appeal. She chose not to offer any testimony of the value of the one acre she claimed as homestead other than her own at the hearing which resulted in the order from which this appeal is taken, in reliance upon the contention that the homestead was allowed by the county clerk on May 29, 1973, the same day Mrs. Price’s claim was filed and that this claim was approved by the Probate Judge on June 1, 1973 by an endorsement “Examined and Approved.” This endorsement appears on the reverse side of appellee’s inventory and we certainly cannot assume that it had the effect of allowing the homestead listed in the inventory or foreclosing the right of appellants to object. This they did pursuant to § 62-603. The one-acre tract claimed by Mrs. Price did not vest in her merely by the clerk’s reservation under § 62-602 (Repl. 1971). This statute does not provide for vesting until commissioners appointed upon the written application of an interested person have reported and then the clerk’s entry vesting title is subject to contest in the probate court. Ark. Stat. Ann. § 62-604 — 608 (Repl. 1971).

Appellee’s attorney did state that there were witnesses standing by who would testify that this acre was worth less than $2,500 but came no nearer to actually offering her testimony than an unsuccessful attempt to obtain appellants’ stipulation that one of them would testify that the tract was worth $1,500. Under these circumstances, appellee is in no position to complain if we limit our consideration to testimony that was offered in the trial court, when the record is clear that she had ample opportunity to put other testimony in the record without prejudice to her other contentions. Otherwise, this matter could shuttle back and forth between the probate court and this court for an indeterminable additional period of years.

We cannot say, however, that the court erred in not ordering a sale under Ark. Stat. Ann. § 62-605. The commissioners erroneously fixed the value, so a sale upon that basis would have been erroneous. In any event, the widow is entitled to have one quarter of an acre on which the dwelling house is situated exempted from sale.

II

THE TRIAL COURT ERRED IN ALLOWING THE DOWER CLAIM OF THE ADMINISTRATRIX.

The error in confirming the allotment of dower is obvious, unless we accept appellee’s contention that appellants were barred by passage of 90 days after the order approving the commissioner’s report without appellants’ objections having been heard. The objections were well taken. There is not even a pretense that the commissioners followed the statutes. See Ark. Stat. Ann. § 62-711 (Repl. 1971). Their testimony shows that Mrs. Price approached each of them separately with a plot plan with the homestead she claimed and the dower to be allowed already laid out, and that little if any regard was given to property values, the only consideration being that 1.21 acres was one-third of the area of the whole tract. Two of the commissioners signed the report only upon the representation of Mrs. Price that the heirs had agreed to this allotment. Only one of them even viewed the property. The layout was drawn by one of Mrs. Price’s sons.

Appellee’s reliance upon Ark. Stat. Ann. § 22-406.3 as a bar to appellants’ objections is misplaced. This section was a part of Act 358 of 1969, by which the “term of court” concept was abolished for chancery and probate courts. The section invoked only made final orders and decrees of a probate court have the same force and effect upon the expiration of 90 days after their filing with the clerk as they would previously have had upon expiration of the term of court at which rendered. This is not such an order. In the first place the order alloting dower recited that it was entered over the objections of' appellants. Within six days thereafter the exceptions of appellants were filed. There was considerable discussion about the reasons these exceptions were not earlier heard but the probate judge finally ruled that the order had not become final, but sustained the report of the commissioners on the merits.

We need not concern ourselves with the correctness of the court’s holding in this regard, because the expiration of the term has not had the same significance in probate courts as in others since the adoption of the Probate Code. The drafters obviously knew that there was need for greater flexibility in that court in regard to finality of orders in the process of administration of an estate. For good cause, the probate court may vacate or modify any order, or grant a rehearing thereon (except for any order as to which an appeal has been taken, or motion to set aside an order of probate of a will after the time allowed for contest) at any time within the time allowed for appeal after the final termination of the administration of the estate of a decedent. Ark. Stat. Ann. § 62-2015 (Repl. 1971). When an appeal is taken from the order of final distribution, all prior appealable judgments and orders to which appellant has filed objections within 60 days after the order or judgment was rendered, with certain exceptions not here applicable, may be reviewed on appeal. Brooks v. Baker, 242 Ark. 128, 412 S.W. 2d 271. Thus, the fact that appellants did not appeal from the order approving the commissioner’s report prior to the probate court’s final order, even though they might have done so, does not constitute a bar to the present appeal. Authorities and statutes which might indicate to the contrary but antedate the Probate Code are not controlling.

It is true that after cross-examining each of the three commissioners extensively appellee moved to strike their testimony on the ground that no appeal had been taken from the order assigning dower. The court’s ruling seems ambiguous. The court did not grant the motion as to any witness. As to the first, the probate judge simply said, “Let it go in for the record.” As to the second, the probate judge indicated that he understood the motion and remarked, “We will let it go in for the record.” As to the third and last, the court simply said that the motion would be noted. Even if this ambiguous language can be taken as excluding this testimony, it would have been improperly excluded, for the reasons just stated. Appellate review in probate cases is de novo, just as it is in equity. Ark. Stat. Ann. § 62-2016 g (Repl. 1971). On trial de novo on appeal in chancery cases, improperly excluded evidence will be considered. Greer v. Davis, 177 Ark. 55, 5 S.W. 2d 742; Adams v. Adams, 177 Ark. 374, 6 S.W. 2d 290.

Ill

THE TRIAL COURT ERRED IN ACCEPTING THE ADMINISTRATRIX’ PURPORTED ACCOUNTING FOR THE YEARS 1961 — 1973.

It was only after a petition to cite the administratrix to show cause why she should not be removed that she condescended to file an accounting some fifteen months after the remand in the first appeal. In spite of the fact that she testified at the 1972 hearing that she had all receipts for the past ten years and all the books and records, she listed only the net income without any attempt to state the extent and amount of expenditures for which she claimed credit and without attaching any vouchers, receipts or any documentary evidence of any kind, satisfying herself that whatever might be shown to be due by her should be offset by compensation due her.

In spite of the probate judge’s obvious dissatisfaction with appellee’s actions, expressed by his questioning the failure of the accounting to cover the period up to the date of its filing, and by his saying that the accounting was otherwise incomplete, that the widow’s attempt to offset the value of her services against the rents, without showing the amount due her, was speculative, that it looked as if she should be removed so someone could make an accounting that a judge could make “heads or tails of”, that the whole thing was a confused, conglomerated mixup and that no one could tell to what she or the other parties were entitled, and, after hearing Mrs. Price’s testimony, that the accounting was not sufficient and that it looked as if she should have to show gross income and expenses, he somehow was eventually sufficiently satisfied by this odd approach to approve the accounting.

Appellee puts great store upon her offer in the trial court of two file folders containing copies of paid bills and receipts. This offer was not made until after the hearing on the accounting had been concluded, when neither appellants nor their attorney had any opportunity to examine them. She also accords great significance to the fact that she had previously furnished appellants’ counsel with copies of her personal income tax returns and that they were made a part of her accounting at the hearing. Even so, she did not abstract these returns after appellants had failed to do so. Disregarding this, they do not comply with Ark. Stat. Ann. § 62-2804 in many respects. There are no vouchers. They are not in any way referred to in her “Accounting of Personal Representative” except to reflect the income she had received from the trailer home park and apartments. Examination of those returns discloses that a deduction for depreciation of the improvements on this property and on items of personal property that she claimed and such items as “Utilities” are shown in a lump sum. On the first appeal, we pointed out the deficiency in the purported accounting and the requirements to be met. We have no hesitation in holding that the present accounting is also deficient in many of the same respects. Mrs. Price has obviously failed to recognize that, as administratrix, she has duties and responsibilities to the heirs of Carrol Price as a fiduciary. The order approving the accounting must be set aside.

IV

THE TRIAL COURT ERRED IN ORDERING THE REAL PROPERTY OF THE ESTATE SOLD SUBJECT TO THE DOWER AND HOMESTEAD CLAIMS OF THE ADMINISTRATRIX.

Perhaps it is in the best interest of the estate that the real property of the estate be sold. We do not agree with appellants that it can be sold only to pay debts. See Ark. Stat. Ann. § 62-2704 (Repl. 1971). Doss v. Taylor, 244 Ark. 252, 424 S.W. 2d 541. Furthermore, we are not sure that the estate has no debts. We recall that we affirmed a judgment fixing a lien on the property in favor of Mrs. Price for debts of decedent paid by her on the previous appeal. We do not know whether these are a part of the disbursements for which appellee seeks credit, in view of the obscurity of the identity of these items. At any rate, we are sure that neither of the parties would desire or receive any benefit from a sale until matters pertaining to dower and homestead are settled, so the court’s order of sale will be set aside.

V

THE TRIAL COURT ERRED IN GRANTING THE WIDOW STATUTORY ALLOWANCES AND REFUSING TO MAKE SUCH ALLOWANCES TO APPELLANT, SANDRA PRICE CLARK.

We really cannot say that appellants have demonstrated reversible error in the matter of statutory allowances. Appellants complained that the personal property had been undervalued. Testimony by one of them was to the effect that some property was not listed. Still the widow was entitled to dower in the personalty to the extent of one third. Ark. Stat. Ann. § 61-202 (Repl. 1971). She valued the total at $327.50. As we understand the abstract of the record it. appears that appellants claim the personal property had a value of approximately $2,345. Of this, Mrs. Price would have been entitled to $781.67 leaving only $1,563.33. The law governing widow’s'allowances at the time of Carrol Price’s death allowed her all furniture, furnishings, appliances, implements and equipment reasonably necessary for family use and occupancy. Sec. 10, Act 255 of 1951. Again using appellants’ values, these items would total some $1,590. She then would have been entitled to an additional $1,500 in personal property for herself and the minor children (Sec. 10, Act 255 of 1951), two of which were her own sons. Of course, some part of the allowances should have gone to appellant Sandra Price Clark, but it seems to us that those items to which the widow was entitled in her own right exceeded the total value of the personal property, even if we apply the values appellants would have us use.

Of course, it is necessary that we reverse the orders and judgments of the probate court before us on appeal, except as to the widow’s rights in the personal property, and remand the case for further proceedings. In this connection it has become obvious that appellee is unsuitable for the discharge of the trust involved in acting as personal representative and that she has failed to perform duties required of her by law. Her unsuitability to act as personal representative is demonstrated by the fact that, as administratrix, she has persistently acted in the furtherance of her own interests in a manner to deprive her step-children of any benefits from their rights in their father’s property and that she has been recalcitrant about compliance with her fiduciary responsibilities and the directions of the court. She has failed to file a satisfactory account, in spite of the fact that the probate judge admonished her about,this some thirteen years ago. We do not see how this matter can ever be concluded as long as Mrs. Price remains as administratrix. We remand the case for further proceedings with instructions to the Probate Court of Pulaski County to remove Mrs. Price as administratrix of the estate. See Ark. Stat. Ann. § 62-2203 (Repl. 1971). Obviously, she cannot be allowed compensation in an indefinite amount by simply saying that her services are worth more than the heirs, collectively, are entitled to, as she persistently contends. Her entitlement to compensation is very questionable in view of Ark. Stat. Ann. § 66-2208 c (Repl. 1971), the fact that the real property has not, (at least prior to the court’s order of sale) become an asset in the hands of the personal representative, [See Ark. Stat. Ann. § 62-2401 (Repl. 1971)] the fact that she has not been authorized to operate a business [See Ark. Stat. Ann. § 62-2410 (Repl. 1971)], and the fact that she will receive and retain all the personal estate of the decedent. Nevertheless, the trial court has never made any determination as to the amount or elements of compensation of appellee, so this question may be determined upon remand.

The judgment is reversed and the cause remanded for proceedings consistent with this opinion and with our opinion on the earlier appeal.

Byrd, J., not participating.

       By her response to a request for admissions, Mrs. Price confirmed this statement.


text:
    ARKANSAS STATE HIGHWAY COMMISSION v. E. L. PERSON et ux
    75-39
    525 S.W. 2d 77
    Opinion delivered June 30, 1975

      Thomas B. Keys, Philip N. Gowen, for appellant.

      Lightle, Tedder, Hannah & Beebe, for appellee.
   John A. Fogleman, Justice.

Appellees recovered judgment for $56,000 against appellant for the taking of 3.32 acres of a 4.47 acre tract by eminent domain for construction of a controlled access highway to be known at Searcy Bypass. The property was located on U.S. Highway 67, two miles from Searcy. It had a highway frontage of 660 feet and was the site of a truck stop. All of the improvements, consisting of a restáurant and service station, were located on the part taken. Neither appellant’s expert value witnesses nor those called by appellees found any sales that were actually comparable, and appellant’s expert appraisal witness testified that there were none, although he referred to and relied upon one he called “most comparable” because it was the only commercial sale he found along the highway. For reversal, appellant lists three points which will be discussed in the order listed by appellant.

I

THE COURT ERRED IN PERMITTING WITNESSES FOR THE LANDOWNER TO TESTIFY TO A SALE WHICH THEY ADMITTED REFLECTED A VALUE CREATED BY THE HIGHWAY CONSTRUCTION, AND WHICH THEY CONSIDERED IN ARRIVING AT THEIR OPINIONS AS TO THE BEFORE VALUE OF THE LANDS INVOLVED.

The landowners called two expert witnesses on values. They were Tom Quattlebaum and Nick D’Auteuil. Quattlebaum stated that, in his opinion, the fair market value of the property before the taking was $67,300, and after the taking, $1,300. On cross-examination he stated that the depreciated value of the improvement was $44,800 and he assigned a value of $22,500, or roughly $5,000 per acre to the land. When asked how he arrived at that figure, Quattlebaum stated that he made an extensive study of all the land sales in the complete area and found that the land was closely held and sales erratic, ranging from $1,000 to $17,000 per acre. When asked where there was a $17,000 per acre sale, the witness pointed out a tract on an off-ramp of an interchange on the interstate highway. When further asked if he took that sale into consideration in arriving at his $5,000 value, he answered affirmatively. He also admitted that the highway construction caused that sale. Appellant’s motion that the court admonish the jury to disregard that sale was denied.

Later, still on cross-examination, Quattlebaum stated that he could not find a sale that was truly comparable, so he took an overall view of the prices which ranged from “a thousand to seventeen, twenty thousand dollars an acre. ” No motion to strike the value testimony of this witness, insofar as the land itself was concerned, was ever máde.

D’Auteuil stated his opinion that the fair market value of the property immediately before the taking was $75,500 and that the remaining 1.15 acres had a value of $1,500. He valued the land at $32,500, or approximately $8,000 per acre, but preferred to put it upon the basis of $50 per front foot. He testified on cross-examination that he searched the entire area but was unable to find anything comparable that had been sold, so' he started looking for comparable sales of commercial property that had sold about the time of the taking. When asked to tell of some of the sales he found, the third one he enumerated was the tract on .the interchange ramp. He was certain that the location of the interchange influenced that value. He admitted that, at the moment, he knew of no sale on Highway 67 that would reflect a value of $8,000 per acre other than the one influenced by the interchange, and that it had sold for $2,800 per acre about a year prior to the condemnation. Appellant moved to strike the value testimony of the witness as to this land because he considered the sale influenced by the highway construction and on the ground that he had not given a reasonable factual basis for the values he assigned to the land.

E. L. Person gave his opinion that the property was worth $90,000 before the taking and $1,000 after. He valued the land at $10,000 per acre. He referred to the same sale at the interchange ramp. Appellant moved to strike the landowner’s testimony because he demonstrated no reasonable factual basis for his opinion as to value.

We are unable to say it was shown that any of these witnesses had no fair or reasonable basis for his value testimony. But we need not elaborate upon other testimony, because the sole ground upon which appellant asks us to reverse the judgment is that the witnesses testified relative to a sale influenced by the highway construction.

The qualifications of these witnesses are not questioned. Appellant had the burden of showing that there was no reasonable or logical basis whatever for their opinions. Arkansas State Highway Commission v. Bane, 250 Ark. 142, 464 S.W. 2d 603; Arkansas State Highway Commission v. Jones, 256 Ark. 40, 505 S.W. 2d 210; Arkansas State Highway Commission v. Stobaugh, 247 Ark. 231, 445 S.W. 2d 511; Arkansas Louisiana Gas Company v. Hardgrave, 252 Ark. 257, 478 S.W. 2d 772. The sale of the property along the ramp was only one item bearing upon the baisis of the values assigned by them to the property before the taking, so this factor would not justify striking the testimony, even though it would be significant as to the weight to be accorded it. Arkansas State Highway Commission v. Pruitt, 249 Ark. 682, 460 S.W. 2d 316; Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381. Consideration of a sale which would be impermissible direct evidence of value does not require that a landowner’s or expert’s opinion testimony be stricken where it is not based solely on that sale. Arkansas State Highway Commission v. Christello, 255 Ark. 717, 502 S.W. 2d 494; Arkansas State Highway Commission v. Potts, 240 Ark. 506, 401 S.W. 2d 3; Arkansas State Highway Commission v. Parks, 240 Ark. 719, 401 S.W. 2d 732, 26 A.R. 3d 775. Even though testimony pertaining to this sale might not have been admissible on direct examination, the fact that consideration was given to it was disclosed on cross-examination. In considering this sort of situation in Arkansas State Highway Commission v. Russell, 240 Ark. 21, 398 S.W. 2d 201, we referred to a holding that an expert witness could and should take into account a matter not independently admissible, quoting the language of Judge Learned Hand that it would be absurd to exclude a qualified expert’s appraisal because he had considered inadmissible evidence and that he was allowed to appraise property because he was an expert and able to give proper weight to all data. Under authority of Russell, appellant was not entitled to have the value testimony stricken or to have the jury admonished not to consider the particular testimony. It should be noted that the witness involved in Russell was the landowner.

It has been said that such a prohibition goes against the introduction of testimony and not against the knowledge a witness may have, so that it is not error to refuse to strike the testimony of a qualified expert witness when cross-examination reveals that he took into consideration his knowledge of sales, evidence of which was not admissible. Arkansas State Highway Commission v. Kennedy, 234 Ark. 89, 350 S.W. 2d 526.

This case differs from Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495, relied upon by appellant, and its companion, Arkansas State Highway Commis sion v. Cromer, 242 Ark. 462, 414 S.W. 2d 90 in which we held that testimony as to enhanced value of property taken occasioned by construction, or contemplated construction of the very improvement for which it was taken was inadmissible, because it included an element of value which is not properly a part of just compensation. No witness in this case indicated that he thought the Person property had been enhanced in value by the construction of the new highway or that this contemplated construction had any impact on its value, and it would appear that sales unrelated to the highway construction at prices as low as SI,000 influenced the witnesses in arriving at their opinions as to land values just as much as the SI7,000 sale did. It was only when there were no comparable sales, in the opinion of these experts, that they made a survey for other sales. Nothing anyone could do would ever take the knowledge they had thus gathered out of their minds.

Of couse, the principal qualification of a landowner to express an opinion is his familiarity with the property. When as here, he qualifies in this respect, the adverse party must show, by cross-examination that there is no reasonable or logical basis for his testimony. Arkansas State Highway Commission v. Sargent, 241 Ark. 783, 410 S.W. 2d 381; Arkansas State Highway Commission v. Shields, 249 Ark. 710 460 S.W. 2d 746. It is axiomatic that a landowner has more leeway than does an expert in fixing values. Arkansas State Highway Commission v. Mullens, 255 Ark. 796, 502 S.W. 2d 626.

II

THE COURT ERRED IN PERMITTING THE LANDOWNERS’ WITNESSES TO TESTIFY TO THE CONTRIBUTORY VALUE OF THE IMPROVEMENTS TO THE LANDS INVOLVED WHEN SAID WITNESSES HAD NOT INSPECTED SAID IMPROVEMENTS FOR APPRAISAL PURPOSES.

These witnesses were experts, and seem to have had sufficient familiarity with the improvements on the property to express an opinion on the subject. No objection was made to the testimony of Quattlebaum in this regard until he had left the witness stand. It was during the testimony of D’Auteuil that a motion was made to strike the testimony. The denial of a motion so tardily made is not such an abuse of the trial court’s discretion as would call for a reversal. Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874. But Quattlebaum had known the property for about 10 years and had been in the buildings many times, having gone to the restaurant to eat and drink coffee while in school and to eat breakfast when going duck hunting. He obtained dimensions of the buildings from drawings made by one Terrell Huff, he had talked with the owner about the details of construction and had observed photographs of the buildings, but he had never inspected the improvements for appraisal purposes before their destruction. Mr. Huff testified that he was in the real estate business and had made an inspection of the property in June 1972, at which time he made measurements of the physical improvements, both outside and inside, putting the measurements on graph paper. This paper was turned over to Quattlebaum when Huff became disabled due to defective eyesight and had to retire. The graph was introduced in evidence. There is no challenge to its accuracy.

D’Auteuil had been in the construction business for several years. He had occasion to patronize the restaurant because it was the only one open after midnight and he had eaten early breakfast there. Equipment from a restaurant he owned had been put in the building in 1971, and he had occasion to be about the property then. He also obtained dimensions from Huff and had viewed photographs of the buildings, the accuracy of neither of which is questioned. There is no indication that appellant’s complaint that the witnesses were simply stating Huff’s appraisal of the property is well founded.

An expert appraiser may base his testimony, at least in part, on hearsay. Arkansas State Highway Commission v. Bradford, 252 Ark. 1037, 482 S.W. 2d 107; Arkansas State Highway Commission v. Busby, 252 Ark. 383, 479 S.W. 2d 242; Arkansas State Highway Commission v. Davis, 248 Ark. 1168, 455 S.W. 2d 97. There was no abuse of the trial court’s discretion in refusing to strike the testimony of these witnesses for lack of familiarity with the improvement. See Arkansas State Highway Commission v. Pullen, 243 Ark. 759, 421 S.W. 2d 890.

Ill

THE COURT ERRED IN PERMITTING THE LANDOWNER TO TESTIFY TO THE CONTRIBUTORY VALUE OF THE IMPROVEMENTS TO HIS LANDS WITHOUT GIVING A COST LESS DEPRECIATION FIGURE.

Appellee Person testified that he acquired the property in 1955. He related the history and described the type and nature of construction in considerable detail before expressing his opinion as to the total value of the property before the taking. He valued the buildings at $54,000. He stated that the cost of construction was $42,000. He felt that the improvements were worth more when demolished than when they were built, because the labor of his family and himself was not included in the cost of construction and because he had made purchases of some materials at advantageous prices. Person had once been in the building supply business. He stated that he had sold for $75,000 a building constructed at a cost of $40,000 on two inexpensive lots. Appellant moved to strike this witness’s testimony as to the value placed on the improvements because the witness did not follow the proper methods in arriving at the evaluation of the improvements. This motion was not made until after Person’s testimony had been concluded and appellees had rested their case.

Appellant relied upon Arkansas State Highway Commission v. Richards, 229 Ark. 783, 318 S.W. 2d 605, as mandating deductions for depreciation from the structural cost of buildings when testing their enhancement of the market value of a tract of real estate. This rule would certainly apply if Person had testified as to the current replacement or reproduction cost of the buildings. But he did not. He told of the original cost. It has become rather commonplace for buildings to bring a much higher price on sale than the cost of construction.

It must be remembered that appellant is not objecting here to the introduction of the evidence as to cost of construction. When this evidence is admissible, as an aid to the jury in determining market value, the most that can be said about depreciation is that proper deduction must be made for depreciation by wear and tear and that the character and condition of the building are matters to be considered. See Arkansas State Highway Commission v. Richards, supra; Arkansas State Highway Commission v. Griffin, 241 Ark. 1033, 411 S.W. 2d 495. But Person gave reasons why he did not think there was any functional or economic depreciation, and it was proper for economic inflation of values to be considered. See Arkansas State Highway Commission v. Shields, 249 Ark. 710, 460 S.W. 2d 746; Arkansas State Highway Commission v. Griffin, supra. According to Person’s testimony, no deduction for wear and tear was proper. There was no abuse of discretion in the court’s denial of this motion to strike.

The judgment is affirmed.

Byrd, J., concurs in the result.