text:
    Jeffie L. BENTLEY v. STATE of Arkansas
    5716
    480 S.W. 2d 346
    Opinion delivered May 22, 1972

      Joel C. Cole, for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellee.
   J. Fred Jones, Justice.

Jeffie L. Bentley was charged on information filed by the prosecuting attorney of Pulaski County with the crime of involuntary manslaughter in thaton the 18th day of June, 1971, he did unlawfully, feloniously, drive a motor vehicle in a reckless wanton disregard of the safety of others and while so operating said vehicle, did strike and injure Mr. Lester H. LaPorte, and that Mr. LaPorte died from the effects of such injury.

A jury was waived and Mr. Bentley was tried before the Judge of the Pulaski County Circuit Court sitting as a jury. He was found guilty and sentenced to two years in the state penitentiary. 'On appeal to this court Mr. Bentley relies on the following points for reversal:

“The state did not prove that the deceased died as a proximate result of the injuries sustained.
There is insufficient evidence to sustain a conviction for involuntary manslaughter.”

The tragedy in this case occurred about 1:30 or 2:00 p.m. on June 18, 1971, when the decedent, Lester LaPorte, while traveling south on Interstate Highway 40 with two passengers in his whité Nova station wagon, stopped the automobile on the west shoulder of the highway to investigate engine trouble, and was struck by a Mack truck pulling an empty “lowboy” trailer. The truck was also traveling south on Interstate 40 and was being driven by the appellant Bentley. Mr. LaPorte sustained massive injury to both buttocks in the accident and was taken immediately to the Veteran’s Administration Hospital where he remained until his death on June 30, 1971.

The appellant argues under his first point that the state did not prove that the deceased died as a proximate result of the injury sustained. We do not agree with this contention. Dr. William Dale Morris, Jr., a medical doctor who was on call at the Veteran’s Administration Hospital, testified that he did not see or examine Mr. LaPorte upon his admission to the hospital. He testified, however, that he did see and examine Mr. LaPorte two or three times while he was in the hospital and that he pronounced him dead upon his expiration. Dr. Morris testified that Mr. LaPorte had suffered “a traumatic amputation, or removal by force, of both his buttocks, the muscles aroung the anus and rectum,” and on direct examination he was asked and answered the following question:

“Q. What did he die from?
A Well, cause of death was overwhelming infection, plus the fact that his kidneys quit functioning, both caused by massive injury he suffered.” (Emphasis added).

In answer to questions concerning the death certificate, Dr. Morris was asked and answered a question as follows:

“Q. And what did you list as the cause on that certificate?
A. There were several causes. The two I mentioned; he had sepsis or overwhelming infection. Secondly, his kidneys quit functioning, both of which we attributed to injury he had sustained some weeks before.”

We are of the opinion that Dr. Morris’ testimony, as above set out, is substantial evidence that Mr. LaPorte died as a proximate result of the injury he sustained.

As to the appellant’s second point, Ark. Stat. Ann. § 41-2209 (Repl. 1964) defines involuntary manslaughter in language as follows:

“If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter. Provided further that when the death of any person ensues within one [1] year as a proximate result of injury received by the driving of any vehicle in reckless, willful or wanton disregard of the safety of others, the person so operating such vehicle shall be deemed guilty of involuntary manslaughter.”

Mr. R. A. Carnahan, a trooper with the Arkansas State Police, testified that he investigated the accident and when he arrived at the scene he found the station wagon damaged on the rear end and left side; that both the station wagon and the truck-trailer were off the highway on the west side. He said that the Nova station wagon was knocked 157 feet from the point of impact. He said that the west side of the highway had two concrete driving lanes 12 feet wide. He testified that he determined the station wagon was off the concrete driving lane and well over on the asphalt shoulder of the highway when struck, and that the point of impact was four feet and 11 inches from the edge of the concrete driving lane over on the ten foot wide asphalt shoulder. He testified that the truck left 15 feet of skid marks in a straight line five feet 11 inches from the outside driving lane to the point of impact with the automobile. The officer testified that he talked with the appellant at the scene of the accident and that the appellant stated he was going eastbound toward North Little Rock and was in the righthand lane of the highway, while a tanker truck was traveling beside him in the inside lane; that one of the people around the automobile stepped out in front of the appellant’s truck and he locked his brakes to avoid striking the person and the unit jacknifed causing his truck to strike the parked vehicle.

Mrs. N. P. Ford testified that she was driving north on Interstate Highway 40 and saw the collision. She said that she saw the automobile on the west shoulder of the southbound lane of the highway and saw the truck strike the automobile. On this point she testified as follows:

“A. I saw a big truck pull off the highway and hit a parked car with two men standing outside.
Q. Could you tell it a little more detailed? Was this car parked on the highway?
A. No, it wasn’t on the highway. It was on the shoulder.
* * *
Q. And what did you see this truck do, again?
A. It was pulling off the highway and I commented to my husband, ‘That truck is going to hit that car.’ Then I turned and looked and then I saw pieces of the car flying.
Q. When you say, ‘pulling off the highway,’ do you mean onto the shoulder?
A. Yes, toward the car. I realized the truck was headed straight for the car.
Q. So the truck had been off the shoulder for some little time when it was headed toward the car?
A. Right.
Q. You don’t know how many feet when you first saw it?
A. No.”

As pointed out by the appellant in his own testimony at the trial, Mrs. Ford was traveling north on Interstate 40 and the collision occured across the median from her point of observation; but Mr. Ralph Sparkman, an employee of the Conway Public Schools, testified that he was driving south in the outside lane of the highway and also saw the collision. He said that immediately prior to the collision the appellant passed him in a usual and uneventful manner. He said that after the truck passed him and it had traveled about seven or eight car lengths ahead of him, it moved back into the outside lane' ahead of him, and just continued to move toward the shoulder of the highway until the dual wheels were off the concrete driving lane onto the asphalt shoulder. He said that the dual wheels of the appellant’s vehicle stayed on the asphalt shoulder of the highway until the impact with the automobile. He said that he did not see the automobile before the impact but that the truck was perhaps 15 or 20 car lengths ahead of him when the impact occurred. On cross-examination this witness testified that when the truck first pulled back in front of him after passing and continued to move toward and onto the shoulder of the highway, he thought the truck was pulling over to stop, but there was no signal light indicating such intention. He said that it appeared to him that the truck driver was going to stop or was asleep. He said that he did not see the automobile on the shoulder of the highway ahead of the truck, but that he was watching the truck to see if it was going to pull completely off the highway or back onto the highway. This witness testified that after the collision, the appellant said a few words to him and said something about a truck being beside him and someone stepping out into the highway in front of him, but this witness testified that he saw no other truck on the highway at that time and place.

Mrs. Marsha Little testified that she was riding in the station wagon at the time it was struck by the truck. She said that she was sitting on the passenger side in the station wagon and Mr. LaPorte was driving. She said that the station wagon motor started missing or something and that Mr. LaPorte drove onto the shoulder of the highway and stopped the vehicle and he and Mr. Weiderman, the other passenger in the station wagon, got out of the vehicle on the righthand side to investigate the trouble. She said that the hood was up on the station wagon and that Mr. LaPorte was at the right side of the station wagon and Mr. Weiderman was at the front of it at one point, but that is all she remembers as to the position of the two men in relation to the station wagon. She said that she remained in the station wagon and does not know where the two men were, in relation to their vehicle, at the time of the collision impact.

The appellant testified that he was employed as a truck driver for McConnell Heavy Hauling and had been so employed for approximately nine years. He testified that he was driving the truck south on Interstate Highway 40 between 55 and 60 miles an hour and as he came over a little rise in the highway, he saw the decedent’s station wagon sitting on the shoulder of the highway approximately six inches, but no more than one foot, from the edge of the concrete traffic lane. He testified that when he was within 50 or 55 feet of the station wagon, a man stepped from near the station wagon, one full step, right out into the highway in front of him. He said that he hit his brakes so quick and hard his truck swerved sideways and that he could never get it straightened back up before it struck the station wagon. The appellant denied that he passed Mr. Sparkman just prior to the collision. On cross-examination the appellant testified that he did not pass any moving vehicle from the time he came on the interstate at Conway. He testified that when the man stepped from near the parked station wagon into the traffic lane in front of him, he slammed his brakes on hard enough to leave skid marks. He testified that he saw his own skid marks as well as the ones about which Trooper Carnahan testified and that the skid marks referred to by the officer were not made by the appellant’s truck. The appellant also testified that the officer was mistaken about the tire marks on the shoulder of the highway because those marks were made by smaller tires than the ones on appellant’s vehicle and were not tracks or tire marks made by his vehicle.

A review of our cases will indicate that in most prosecutions for involuntary manslaughter in "driving any vehicle in a reckless, willful or wanton disregard of the safety of others,” under § 41-2209, supra, the case is submitted to the jury with proper instruction on the lesser degree of the offense as set out under “negligent homicide” in Ark. Stat. Ann. § 75-1001 (Repl. 1957). The only real difference in the two statutes is in the penalties that may be assessed and the word "willful” is not included in the lesser offense of negligent homicide. Thus it appears clear that if the homicide results from the operation of a vehicle in a reckless or wanton disregard of the safety of others, the penalties provided under either statute may be imposed. But if the homicide results from the operation of a vehicle in a willful disregard of the safety of others; or if a willful disregard is charged and proved in addition to either or both of the other two elements; "reckless” or "wanton” disregard, then the offense could not be negligent homicide but could only be at least, involuntary manslaughter.

In the case at bar a jury was waived and the trial judge, sitting as a jury, tried the case on its facts as well as the law. The question before us on appeal is whether there was any substantial evidence to support the judgment, and in considering this question we view the evidence in the light most favorable to the appellee. Baker v. State, 237 Ark. 862, 376 S. W. 2d 673. From the record before us we conclude there was substantial evidence from which the trial judge could have found that the appellant drove his truck along the blacktop shoulder of the highway in a reckless disregard for the safety of the decedent and the other passengers in the station wagon parked on the shoulder of the highway.

The judgment is affirmed.


source: Caselaw Access Project

author: Conley Byrd, Justice. John A. Fogleman, Justice,

license: Public Domain

text:
    SOUTHEAST CONSTRUCTION CO., a corporation v. Billy EUDY
    5-5909
    480 S.W. 2d 571
    Opinion delivered May 22, 1972
    [Rehearing Denied June 26, 1972.]

      Barber, Henry, Thurman, McCaskill ir Amsler, for appellant.

      Pickens, Boyce & McLarty, by: Tim F. Watson, for appellee.
   Conley Byrd, Justice.

Appellee Billy Eudy was injured in a headon collision which occurred when a northbound car driven by Lynn Person first veered off onto the east shoulder, carné back onto the highway, veered onto the west shoulder and then into appellee’s southbound lane of travel. Appellee brought this action against appellant Southeast Construction Company, a corporation, on the theory that Southeast Construction Company was negligent in failing to warn or protect the motoring public from the dangerous conditions created by its construction work on Highway 67 in the area where the collision occurred. The jury found the issues in favor of Eudy.

Appellant contends among other things, that the court erred in refusing to direct a verdict for appellant, in refusing to instruct on an independent intervening cause, in giving a slanted instruction when an AMI instruction was available, and in instructing the jury that Eudy could recover for loss of ability to earn.

No. I. The negligence testimony was given by Eudy, Trooper Scott Brown and Ralph Wyatt, an engineer for the Highway Department in Batesville.

Eudy testified that on the morning of the accident he was going south on Highway 67 and noticed Person’s car. The first time that he noticed it he saw the car go off the highway, then off on his side of the road and then come back on the highway and hit him headon. He knew construction was taking place, having driven the same route the preceding evening going home from work. When asked about the highway condition the evening before, he stated:

“A. General, just a general construction with equipment, some equipment along there; some of it was parked; in fact, I think all of it was parked at that time; some of the materials, sand and rock was piled up alongside the highway. On some parts of it they had built the shoulder up for cars and trucks to come on and off and on other parts of it was an open trench along the edge of the shoulder of the highway.”

On cross-examination Eudy was asked if he observed Person’s car drop from the paved portion of the highway to Person’s right at the time it veered off the highway to the east. In answer Eudy said, ‘‘I couldn’t have seen it; I was too far away.” Appellant’s counsel then asked if he saw Person’s car drop in any way to which Eudy answered: “I did see; in fact, I think that is when I first noticed it more than anything else was when I saw the right side of it drop or the right front quarter of it drop.” Concerning his northbound travel the evening before, Eudy was asked if he remembered having observed any road signs of any character along where the accident occurred or men working, to which he answered: “Not of a specific nature where I can say, well I saw such and such a sign in such and such a place on such and such a day.” However, he frankly admitted that he was well aware that the road was under construction at the time. It is also admitted that the weather was dry and the day was dear at the time of the collision.

Trooper Brown testified that he was aware of the construction project to widen Highway 67 north of Newport. He stated that he was familiar with the safety precautions that are ordinarily and customarily taken by contractors undertaking a project such as this. When the construction first started he saw a number of hazardous conditions existing up and down the road a number of times and called them to the attention of the Highway Department’s district engineer. In so doing he had suggested that the contractor needed to take precautions to keep their lights and signs in better shape than they had been doing. On cross-examination Trooper Brown clarified his statement by saying that after he made his complaints to the district engineer, the unsafe practices were remedied and that his complaints were made during the early part of the construction. He specifically stated that he had no complaints with the construction taking place at the time and place where the accident occurred.

Ralph Wyatt, the highway department’s district engineer, testified that sometime prior to September 26, two days before the accident, he had had a complaint from the State Police about the laxity or lack of safety precautions of the contractor on this job. As a result thereof, he wrote a letter on Sept. 26, directed to appellant, suggesting that there was a laxity of supervisory personnel in providing adequate warning signs where work was in progress and at places it constituted a hazard to the traveling public. On cross-examination this witness could not determine when the complaint was made nor that the condititons existed at the time of the injuries complained of.

Negligence is ordinarily defined as the failure to do something which a reasonably careful person would do or the doing of something which a reasonable person would not do under the circumstances similar to those shown in evidence. Proximate cause is ordinarily defined to mean a cause which in a natural and continuous sequence produces damage and without which damage would not have occurred. As can be seen from the foregoing testimony of Eudy, Brown and Wyatt, there is no evidence to show that appellant failed to erect warning signs or any other phase of the construction was the cause “which in a natural and continuous sequence” produced Eudy’s damage. Consequently, the trial court erred in failing to direct a verdict for appellant.

No. II. Brown testified that if Person had lived he would have been charged with driving under the influence of intoxicants. This assertion by Trooper Brown was made upon his personal observations of Person at the scene of the accident. Under these circumstances the trial court committed error in failing to give appellant’s requested instruction, AMI 503, with reference to an independent intervening cause.

No. III. Over appellant’s objections the trial court gave appellee’s requested instruction No. 1A as follows:

“To find in favor of the plaintiff, Bill Eudy, on the question of negligence, it is not necessary that you find that the defendant, Southeast Construction Company, was completely or one hundred percent at fault. If you find that Southeast Construction Company was at fault to any extent or degree, and that fault proximately caused or contributed to cause this accident, then you should find for the plaintiff, Bill Eudy.”

The contents of this instruction are covered by AMI 502 on concurring proximate causes. As pointed out in Vangilder v. Faulk, 244 Ark. 688, 426 S.W. 2d 821 (1968), the April 19, 1965, per curiam order of this court clearly directs that when an AMI instruction is applicable in a case it shall be used, unless the trial judge finds that it does not accurately state the law. Appellant in objecting to the instruction given pointed out that it was not an AMI instruction. In view of the possibility of a new trial we point out that the AMI instruction should have been given if an instruction is given on the issue.

No. IV. In giving AMI 2207 on the issue of damages, the trial court told the jury that if they found for Eudy on the question of liability they then must fix the amount of money which would reasonably and fairly compensate him, among other things, for “the present value of any loss of ability to earn in the future.” The evidence shows that as a result of the collision Eudy is no longer able to engage in any sports activity; his knee buckles often when he attempts to run causing him to collapse; his ability to climb stairs is greatly hampered by the knee injury and his ability to drive an automobile is somewhat hampered because of stiffness in his neck. While there is other evidence tending to show that appellee has had a continuous increase in his earnings from the date of ibe injury to the date of the trial, we cannot say that there is no evidence of loss of ability to earn in the future.

While we point out that the trial court should have instructed a verdict in favor of appellant, for the reasons pointed out in St. Louis Southwestern Railway Co. v. Clemens, 242 Ark. 707, 415 S.W. 2d 332 (1967), we reverse and remand the case for a new trial.

Reversed and remanded.

Harris, C.J., not participating.

Fogleman and Jones, JJ., dissenting in part.

John A. Fogleman, Justice,

concurring in part, dissenting in part. I concur in the result and in all of the majority opinion except that part relating to loss of earning capacity, or ability to earn in the future. I do not agree that the showing of this appellant’s physical handicaps, standing alone, is sufficient evidence to support a jury verdict for that element of damage, particularly in view of the fact that appellant’s earnings are greater after the injury than before. It seems to me that, in the absence of other evidence in this case, a jury would be left to pure speculation. It also seems to me that this element of damage, like future pain and suffering, should be shown with reasonable certainty. I also think that the fact that appellant’s earnings have continuously increased should give rise to a rebuttable presumption that he has suffered no loss of ability to earn.

I am authorized to state that Mr. Justice Jones joins in this opinion.


author: Conley Byrd, Justice.

text:
    Vonda Kathleen BRADFORD v. Glenn FITZGERALD et ux
    5-5917
    480 S.W. 2d 336
    Opinion delivered May 22, 1972

      Donald Goodman and Donald Poe, for appellant.
    C. Richard Lippard for appellees.
   Conley Byrd, Justice.

This sad story arises from birth of a child out of wedlock to appellant Vonda Kathleen Bradford, age 23, and adopted by appellees Mr. & Mrs. Glenn Fitzgerald. Two days after birth appellant signed a Waiver of Issuance and Service of Summons, Entry of Appearance, and Consent to Adoption. After the interlocutory order of adoption was entered, appellant intervened and resisted the final order of adoption, from which she appeals. We affirm.

The record shows that appellant had had a previous child out of wedlock who lived with appellant in her mother and stepfather’s home. When it became apparent that she was going to have another child, her mother and stepfather informed her that she could not bring the child into their home. Knowing that there was no way she could raise her first child without going back into her mother and stepfather’s home and asking for their help, she entered into discussions with appellees about adopting the forthcoming child. Appellees gave $50.00 to her stepfather and $35.00 to her before the baby was born. Thereafter Appellees paid all hospital and doctor bills. Appellee, Mrs. Fitzgerald quit her job to take care of the baby.

Appellant’s mother had some misgivings about the adoption by the time appellant got home from the hospital and so told the appellees before the interlocutory order was entered. Appellant, however, did not talk to the appellees until some three months after the baby was born. She stated that she admired the appellees very much and felt like in order to ask for her baby back she had to prove herself not only to her parents but to the appellees.

At the time the discussions concerning the adoption were had, appellant was unemployed. At the time of trial, however, she was steadily employed and she and her first child had moved out of her parents’ home into an apartment shared bv a divorcee and her two children.

Admittedly, the appellees have a comfortable home and Mrs. Fitzgerald is giving her full time to the child.

There is nothing in the record to show that the consent to adoption was not knowingly given and not retracted until after the entry of the interlocutory order of adoption on January 6, 1970. Under these circumstances, the trial court properly followed our holding in Martin v. Ford, 224 Ark. 993, 277 S. W. 2d 842 (1955), and in considering the best welfare of the child, entered the final order of adoption.

Affirmed.


author: Frank Holt, Justice.

text:
    Patrick MAYNARD v. STATE of Arkansas
    5714
    480 S.W. 2d 353
    Opinion delivered May 22, 1972

      John C. Earl, for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellee.
   Frank Holt, Justice.

The jury convicted appellant of the crime of robbery and assessed his punishment at three years in the penitentiary. For reversal of that judgment, the appellant first contends by his court appointed appellate counsel that the court erred in admitting testimony about suppressed evidence, a knife, which was allegedly used in the crime. We cannot agree.

An investigating officer went to appellant’s apartment and was admitted by a woman (a prostitute), who occupied the apartment with him as his fiancee and, also, as Mrs. Maynard. The officer arrested appellant as a robbery suspect at which time appellant voluntarily produced a small pocket knife from his person when the officer asked appellant if he had a weapon. The officer took the appellant to the police station where he learned that a knife was used in the robbery. Another officer, with appellant’s purported wife, returned to the apartment and retrieved the knife. The court sustained the appellant’s pre-trial motion to suppress the knife as evidence on the basis it was secured without a search warrant. However, during the trial the officer, who first observed the knife when he arrested the appellant, was permitted to testify only to the extent that appellant had a knife on his person when arrested and described it as a bone handle pocket knife with a 3 to 3 1/2 inch blade. The victim described the weapon used during the robbery as an ordinary pocket knife with a single blade 4 to 5 inches. The officers knowledge about the knife was acquired when he first arrested appellant. There is no contention that the arrest was unlawful. It is well recognized that an arresting officer has the right, incidental with a lawful arrest, to ascertain if an individual is armed in order to avoid possible harm to the arresting officer. See Bailey v. State, 246 Ark. 362, 438 S.W. 2d 321 (1969); Ballew v. State, 246 Ark. 1191, 441 S.W. 2d 453 (1969); Patrick v. State, 245 Ark. 923, 436 S.W. 2d 275 (1969); Sibron v. New York, 392 U.S. 40 (1968). Furthermore, it is permissible for a witness in a criminal proceeding to testify about his observation of tangible objects even though they are not produced as evidence. See Washington v. State, 248 Ark. 318, 451 S.W. 2d 449, (1970).

The appellant next asserts that the court erred in failing to properly instruct the jury as to the legal tests of insanity. Appellant argues that the state’s instruction No. 6 is confusing and does not include the three tests of insanity which are incorporated in the standard instruction consistently approved by this court since Bell v. State, 120 Ark. 530, 180 S.W. 186 (1915). Appellant specifically asserts that the instruction is defective because it does not include the first test which relates to the defendant’s knowledge as to the nature and quality of the alleged act. This instruction, which we do not recommend as a model instruction, is not subject to this alleged deficiency. According to appellant, he was formerly adjudged mentally insane in a criminal proceeding in federal court. He now receives social security benefits through a payee which occurs whenever an individual is unable to handle his affairs because of either his physical or mental condition. In the case at bar, the state adduced evidence, however, that appellant was sane at the time of the alleged offense. Our review of the record discloses that the appellant never produced evidence that he was insane at the time of the present offense or specifically that he did not know the nature and quality of the alleged offense. An instruction must be germane to the factual issues.

Affirmed.


author: Eugene A. Matthews, Special Justice.

text:
    John A. DAVIS, Bill R. HOLLAND, and the firm of BRIDGES, YOUNG, MATTHEWS and DAVIS v. Hon. James MERRITT, Chancellor
    5-5715
    480 S.W. 2d 924
    Opinion delivered May 22, 1972

      Bridges, Young, Matthews ir Davis, for petitioners.

      Clifton Bond ir William E. Johnson, for respondent.
   Eugene A. Matthews, Special Justice.

I. Summarization of factual background of case.

This Petition for Writ of Prohibition to the Chancery Court of Desha County, McGehee District, grows out of Motion filed by Petitioners on August 25, 1970, in the case of Pine Bluff Production Credit Association, et al, v. H. G. Lloyd, et al, Chancery Case No. 763 to set aside “summarized findings and conclusions’’ signed by the Respondent on Auguest 12, 1970, and filed with the Clerk of Court on August 13, 1970, such Motion alleging that the entry of the summarized findings and conclusions was prompted by bias and prejudice on the part of the Court towards Petitioners as demonstrated in a telephone conversation between two of Petitioners and the Court on August 12, 1970; and, praying that the Respondent disqualify himself in connection with the determination of the Motion and any further proceedings in the case.

Thereafter, on September 2, 1970, the Respondent signed a final decree in Case No. 763 which was filed with the Clerk of Court in Desha County on September 3, 1970. On September 15, 1970, Petitioners filed an amendment to the Motion which they had filed in the Desha Chancery Court on August 25, 1970, in which they renewed the prior motion, further alleging that the entry of the decree on September 3, 1970 was prompted by bias and prejudice on the part of the Court toward Petitioners and praying that Respondent disqualify himself in connection with any proceedings in the case; that a Special Judge be assigned by the Judicial Department of Arkansas; or, in alternative, order a new trial; and, that the summarized findings and conclusions entered by the Court on August 12, 1970 and the decree entered in Case 763 on September 3, 1970 be set aside. To this amended motion was attached the affidavit of John A. Davis and Bill R. Holland setting out their version of the telephone conversation with the Respondent on August 12, 1970.

Thereafter the case of Pine Bluff Production Credit Association, et al, v. No. 763, H. G. Lloyd, et .al, was appealed from the Chancery Court of Desha County, McGehee District, to this Court, and is now pending in this Court as No. 5598. On June 10, 1971, Petitioners filed in this Court their abstract of pleadings and testimony in Case No. 5598 (Case No. 763 in the lower court) and their brief. In the Abstract of Pleadings the Motion filed in the Chancery Court on August 25, 1970, the amendment to such Motion filed on September 15, 1970, in the Chancery Court, together with the affidavits of John A Davis and Bill R. Holland, all as hereinabove referred to, were set forth, and in Petitioners’ brief the allegations of bias and prejudice on the part of the Respondent were argued as Point One of such brief.

Copies of the Abstract and Brief filed by Petitioners in this Court in Case No. 5598 were received by the Respondent on June 11, 1971.

On June 23, 1971, the Respondent entered an order in Desha Chancery Case No. 874 captioned:

In the matter of the appointment of a committee to investigate John A. Davis, Bill R. Holland, and, the law firm of Bridges, Young, Matthews ¿r Davis for alleged contempt of court and violation of canons of professional ethics.

in which Order a recital was made of the receipt of the aforementioned Abstract and Brief by Respondent on June 11, 1971; reciting that one copy of the Abstract, referred to as Volume One (1), and one copy of the Brief referred to as Volume Two (2), of Appellants (Petidoners) had been filed in Case No. 763 pending in the Desha Chancery Court and were a part of the record. The Order went on to say:

“* * *These two volumes have been read by the Chancellor of this Court and the contents and/or substance thereof made known in open Court on this date. The statements, affirmations, references and charges, along with the referred to record made by John A. Davis, Bill R. Holland, and the law firm of Bridges, Young, Matthews and Davis appearing in said volumes may constitute contempt of Court, violation of the Code of Professional Ethics, perjury and criminal slander.
“The Court on its own motion, finds that a committee should be appointed, composed of solicitors of the Bar of the Second Chancery Circuit, Arkansas, to conduct an investigation of the statements, affirmations, references and charges, along with the referred to record made by John A. Davis, Bill R. Holland, and the law firm of Bridges, Young, Matthews and Davis, found in Volume One (1) and Two (2) aforementioned, and report this to the Court, whether or not in their opinion, based on their investigation, any part or portion of said volumes constitute contempt of court or violation of the Code of Professional Ethics.* * *”

A three-member committee of lawyers practicing in the Second Chancery Circuit were then named to conduct the investigation and report their findings to the Court on or before September 4, 1971. It directed that the Committee should convene within ten (10) days from the receipt of a copy of the Order from the Clerk of the Court and organize by electing one committeeman as Chairman, another as Vice-Chairman and the other as Secretary, and thereafter proceed with the investigation therein ordered by the Court. The Order then stated:

“* * *The said committee or any designated member is authorized to accept, hear and take evidence during said investigation, either by affidavit, statement or oral examination. The Court reporter of this Circuit should serve as reporter for said committee to report any evidence directed to be taken by the committee or other proceedings of the committee, and in the event of his inability to serve, the committee is authorized to employ a reporter for the purpose of the investigation. The Clerk of this Court is authorized to issue subpoena(s) for witnesses upon request of any member of the committee and the Sheriff is authorized to serve said issued writ(s) upon the person therein designated for service.”

The Order then continued that while the authority and powers of the committee were not being circumscribed, and that it was granted full power and authority to conduct the investigation therein ordered to ascertain the true facts and report to the Court, but said Committee should specifically ascertain the following:

“1. Did the law firm of Bridges, Young, Matthews and Davis authorize their name to be printed on volume One (1) and Two (2)? (a) Who are the members of the aforenamed law firm? (b) What member or members wrote the volumes? (c) What members of the firm authorized, knew or had knowledge of the contents of the volumes? (d) Were the statements contained in said volumes written at the request, direction or instance of the appellants? (e) Did the appellants have knowledge of the contents of said volumes and confirm or ratify said statements? (f) Who paid for the printing of said volumes? (g) Have the volumes been filed with the Clerk of the Supreme Court? (h) What distribution has been made of said volumes?
“2. Were the statements, affirmations, references and charges, along with the referred to record made by John A. Davis and Bill R. Holland in the form of an affidavit, made by the law firm of Bridges, Young, Matthews and Davis directed toward the Chancellor of this Court and this Court was it essential, necessary and material to the adjudication of the appeal by the Supreme Court? (a) If not, why were these statements, affirmations, references and charges placed in the volumes?
“3. Does the laws of the State of Arkansas require Courts of Chancery to file or make detailed findings of fact and authorities in the adjudication of actions in said Courts?
“4. Ascertain and determine the true facts surrounding and the events transpiring when John A. Davis attempted to call by telephone the Chancellor of this Court on August 12, 1970? (a) Report this in detail with the words spoken, (b) Was Davis authorized to communicate by this means with the Chancellor? (c) Ascertain and determine if there was any pleadings filed in the office of the Clerk in the case of Pine Bluff Production Credit Association v. Lloyd, No. 763 which would have authorized the Chancery Court to act on the question of the sale of assets of the defendants in said action? (d) Ascertain and determine if Courts of Chancery in this State conduct the proceedings of said courts by conference telephone connection? (e) Ascertain and determine if the Chancery Courts of the Second Chancery Circuit conducts its proceeding by telephone?
“5. Ascertain if the ‘bias and prejudice’ charged against the Chancellor of this Court was sufficient in law to disqualify him in the adjudication of the action? (a) Ascertain if there in fact existed any ‘bias and prejudice’? (b) Ascertain and determine why the motions referred to in said volumes relating to the Chancellor of this Court, and said Court were not presented to the Court when the same was in open session, pursuant to order, on September 5, 1970? (c) Ascertain and determine if the Chancellor of this Court had notice of the filing of said motions?
“6. Ascertain and determine if the Chancellor of this Court is guilty or innocent of the charge of violation of ‘Canon No. 22 of the Canons of Judicial Ethics (p. 7 of vol. 2)?
“7. Ascertain and determine if the statements, affirmations, references and charges in volumes One (1) and Two (2) are ‘false accusations against a Judge (the Chancellor of this Court)?
“8. Ascertain and determine if there exists any constitutional or statutory authority for the Supreme Court of Arkansas to conduct a trial of a Chancellor of a Chancery Circuit of Arkansas, and enter an order disqualifying him from adjudicating an action pending in the Chancery Court, where no showing is made under Section 20 of Article 7 of the Constitution of Arkansas with the proceedings a part of an appeal in a certain action, with the charge being based on the Exparte statements of the appellants lawyers, and the Chancellor not as a party or given an opportunity to be heard on the charge?
“9. Ascertain and determine when the findings in case No. aforenamed was drafted by the Chancellor?
“10. Ascertain and determine if the affidavit appearing on pages 63/64/65/66/67/68 of volume One (1) was filed by the named affiants for the purpose of the record to create an atmosphere in which to try a de novo appeal in the Supreme Court? (a) Ascertain and determine why the ‘Motions’ referred to in volumes One (1) and Two (2) were not presented to this Court on September 5, 1970, when the Court was in regular session pursuant to order entered by direction of Act 11 of 1955, Act 244 of 1957 and Act 358 of 1969, or on the other regular dates when the Court in regular session, or by notice under Section 22-408.2 of the Statutes of Arkansas, or by action under Section 27-2106.4, supra? (b) Ascertain and determine why the statement(s) on page 7 of volume Two (2) were made that ‘no hearing was granted’ if the ‘Motions’ were not presented to the Court?
“11. Ascertain and determine what ‘Correspondence with the Court (p. 7, Vol. Two (2) was had as mentioned by the attorneys for the appellants?
“12. Ascertain and determine if a lawyer is authorized to communicate with a judicial officer by telephone concerning a case under submission when there are no pleadings filed seeking interim relief? (a) Does a judicial officer have a right to allow lawyers to have private interviews with him concerning actions pending in the Court over which the judicial officer presides?
“13. Ascertain and determine if the Chancellor of this Court is ‘temperate, attentive, patient (and) impartial’, (a) What has been his attitude toward counsel, litigants, and especially to ‘young and inexperienced lawyers’?
“14. What has been the policy of the Chancellor in announcing disqualification in actions before the Chancery and Probate Courts?
“That upon the filing of said report by said Committee this Court will take further action in this matter consistent with the facts, and if the report shows any violations, then a committee will be appointed to draft and file charges against the alleged violators in this Court and the Supreme Court of Arkansas.”

Thereafter, Petitioners, on June 25, 1971, filed in this Court — Case No. 5-5715 — their Petition for a Writ of Prohibition to which was attached as Exhibit “A” a copy of the foregoing Order of the Desha County Chancery Court entered on June 23, 1971. Petitioners praying that a Temporary Writ of Prohibition be entered prohibiting any further proceeding in connection with the Order of the Desha Chancery Court of June 23, 1971, in its Case No. 874, and upon final determination of the matter, such Writ of Prohibition be made permanent and the said Desha County Chancery Court Order be cancelled and set aside. On June 28, 1971, a Temporary Writ of Prohibition was granted and the parties directed to file briefs in accordance with Rule 16(c).

II. Rulings on Respondent’s motion to strike, demurrer to petition and motion to dismiss petition.

The Respondent, on June 28, 1971, filed his response to Petition for Writ of Prohibition and included therein a demurer based upon the allegations that the Petition was directed against the Respondent as Chancellor of Desha County, Arkansas, when the Order showed on its face that it was not entered by a Chancellor but by the Chancery Court of Desha County, Arkansas, in open Court, and a Motion to Dismiss on the ground that the action for Writ of Prohibition by Petitioners had been prematurely commenced and that the Petition for Writ of Prohibition did not allege facts to show irreparable injury to the Petitioners.

On August 3, 1971, Petitioners filed their amendment to the Petition and Reply to Response to Petition for Writ of Prohibition to which were attached as exhibits: (a) copy of Motion of Production Credit Corporation et al to set aside summarized findings and conclusions. Exhibit “A”; (b) copy of renewed and supplemental Motion to set aside summarized findings and conclusions and decree. Exhibit “B”; (c) affidavit of John A. Davis and Bill R. Holland in support of renewed and supplemental motion. Exhibit “C”; (d) copy of Points to be relied on in Case 5598. Exhibit “D”; and, (e) copy of argument on Point One in Case 5598. Exhibit “E”.

On August 31, 1971, Respondent filed his reply to amendment to petition and reply to response to petition for Writ of Prohibition and attached thereto his affidavit giving his version of the telephone call from John A. Davis and Bill R. Holland on August 10, 1970, and of the events which transpired later that day. On this same date Respondent filed his Motion to Strike parts (a), (b), (c), (d), (e) of the Amendment to Petition filed by Petitioners on August 3, 1971, and Exhibits “A” through “E”, both inclusive attached to said amendment.

On September 10, 1971, Petitioners filed their response to Motion to Strike. On September 13, 1971, Respondent’s Mo don to Strike was submitted to this Court and by per curiam order entered on September 20, 1971, it was denied. In like manner the Court overrules Respondent’s Demurrer to Petition for Writ of Prohibition filed June 28, 1971, and denies Respondent’s Motion to Dismiss filed on the same date.

III. Issues to be decided.

Respondent, in his brief at Page 2 states, “The issue in this action is the jurisdiction of the Chancery Court of Desha County, Arkansas, to make and enter the order in issue.” (The order of June 23, 1971 entered by the Chancery Court of Desha County, Arkansas in its Case No. 874, which is summarized above.). We agree with that statement of the issues to be determined in this matter.

In his brief, filed in this Court, Respondent further states:

“The Order, the subject of this action, refers to: (A) contempt of Court, (B) violation of the Code of Professional Ethics, (C) perjury, and (D) criminal slander.”

Respondent in his brief recognizes that the Chancery Court of Desha County, Arkansas, is not vested with criminal jurisdiction (State v. Martineau, 149 Ark. 237, 232 S.W. 609, and City of DeQueen v. Fenton, 98 Ark. 521, 136 S.W. 945) but states that facts constituting a criminal offense may constitute contempt of court. Thus, we shall discuss whether the Court exceeded its jurisdiction in appointing the committee to conduct an investigation and report to the Court whether or not in their opinion, based on their investigation, any part of Volumes One (1) and Two (2) constituted contempt of court or violation of the Code of Professional Ethics.

A.

Contempt of Court

The Arkansas State Constitution provides in Article VII, Section 26, as follows:

“Punishment of indirect contempt provided for by law. — The General Assembly shall have power to regulate by law the punishment of contempts not committed in the presence or hearing of the courts, or in disobedience of process.”

Section 34-901 of the Arkansas Statutes Ann., 1962 Replacement, provides in part:

“Criminal Contempt — What Constitutes. — Every court of record shall have power to punish, as for criminal contempt, persons guilty of the following acts, and no others.
“First, Disorderly, contemptuous or insolent behaviour, committed during its sitting, in its immediate view and presence, and directly tending to interrupt its proceedings, or to impair the respect due to its authority. * * *”

Section 34-903 of the Arkansas Statutes, Ann., 1962 Replacement, reads as follows:

“Contempts in presence of court — Summary punishment — Notice of charge in other cases. — Contempts committed in the immediate view and presence of the court, may be punished summarily; in other cases, the party charged shall be notified of the accusation, and have a reasonable time to make his defense.”

In the case of Blackard v. State, 217 Ark. 661, 232 S.W. 2d 977, this Court said:

“Criminal contempt proceedings are those brought to preserve the power and vindicate the dignity of the court and to punish for disobedience of its orders. Civil contempt proceedings are those instituted to preserve and enforce the rights of private parties to suits and to compel obedience to orders and decrees made for the benefit of such parties. * * *”

This Court has recognized two classes of contempt: (a) direct contempt being an act committed within the immediate presence of the Court, and (b) constructive contempt, an act directed against the dignity, integrity, and authority of the Court but not having been committed in its immediate presence. The above cited Statutes recognize these distinctions.

The Respondent, in his response to the petition for a Writ of Prohibition filed in this Court on June 28, 1971, stated: “An examination of the briefs (Vols. One (1) and Two (2) referred to in the above order) caused a conclusion to be drawn that the Petitioners herein might be guilty of constructive contempt of the Chancery Court of Desha County, Arkansas* * *Further, Such Motions Filed in the Chancery Court, the Charges, Statements, Affirmations and References Made by the Petitioners in Said Briefs Might Constitute Criminal Contempt * * *”. In his brief Respondent states: “The alleged contempt of court referred to in the order to issue sounds in constructive, indirect or consequential contempt of court.” While we are not called upon to decide whether the order entered in Case No. 874 in the lower court, as summarized above, referred to a possible charge of direct contempt or one of constructive contempt, it is clear from what has just been said that the Respondent in its pleadings filed in this Court and in its brief filed in this Court, treated the matter as one of constructive contempt.

In the case of Lee v. State, 102 Ark. 122, 143 S.W. 909, this Court, in sustaining a petition for certiorari to quash a judgment of contempt entered against the petitioner in the lower court, said:

“It is contended that the circuit record was without authority to punish the petitioner for a criminal contempt, not committed in its immediate view and presence, without an affidavit or information bringing the facts to its knowledge first made. Courts of record and general jurisdiction have inherent power to punish for contempts and the conferment of the power by statute upon a superior court of record is deemed no more than declaratory of the common law. Such court may go beyond the powers given by statute in order to preserve and enforce its constitutional powers when acts in contempt invade them. Rapalje on Contempts, Sec. 1; art. 7, Section 26, Constitution; State v. Morrill, 16 Ark. 384. This charge was of criminal contempt, being directed against the dignity, integrity, and authority of the court, and constructive, not having been committed in its immediate presence. In Brown on Jurisdiction, Sec. 116, it is said: ‘In constructive con-tempts, the court can only act upon a showing of the facts invoking jurisdiction and time should be given accused to resist the charge.’ Our statute provides ‘contempts committed in the immediate view and presence of the court may be punished summarily; in other cases, the party charged shall be notified of the accusation and have a reasonable time to make a defense.’ Section 722, Kirby’s Digest.
* * #
“There was no affidavit filed in this cause, setting out the publication and charge against the petitioner before the citation was issued, neither was there any statement of the facts constituting the charge made of record and signed by the judge in vacation, nor any order of the court, while in session, reciting that it had come to its knowledge that such publication had been made, setting it out, and directing a citation to issue against the petitioner to show cause why he should not be punished for contempt for causing the publication, and if any such procedure was necessary, the petitioner did not waive it, having objected to the jurisdiction of the court specifically on that account.
# # #
“Under our system of procedure, the accused is entitled to be informed with reasonable certainty of the facts constituting the offense with which he is charged and an opportunity to make defense thereto — his day in court. The different kinds of procedure have been outlined for the punishment of other offenses, but the statute, as to this one, says only that he shall be notified of the accusation and have a reasonable opportunity to make his defense. There must be an accusation before the accused can be notified of it, and there is no reason why the court in session cannot recite that the matter offending has come to its knowledge, setting it out in an order and direct a citation thereon to show cause. * * *”
See also ex parte Coulter, 160 Ark. 550, 255 S.W. 15; Hall v. State, 237 Ark. 293, 372 S.W. 2d 603.

Parenthetically, let it here be said that this opinion should not be construed as in any manner weakening the principle of law enunciated by this Court in the case of State v. Morrill, 16 Ark. 384, and since re-stated in Weldon v. State, 150 Ark. 407, 234 S.W. 466, and many other decisions of this Court. In the Morrill case it was said:

“It was argued by the counsel for the defendant, that the court must look to the statute for its power to punish contempts, and not to any supposed inherent power of its own, springing from its constitutional organization. That it is controlled by the statute, and cannot go beyond its provisions. In other words, that the will of a co-ordinate department of the government is to be the measure of its power, in the matter of contempts, and not the organic law, which carves out the land-marks of the essential powers to be exercised by each of the several departments of the government.
“In response to this position, we say, in the language of Mr. Justice Scott, in Neil v. State, 9 Ark 263, that : ‘The right to punish for contempts, in a summary manner, has been long admitted as inherent in all courts of justice, and in legislative assemblies, founded upon great principles, which are coeval, and must be co-existent with the administration of justice in every country, the power of self-protection. And it is only where this right has been claimed to a greater extent than this, and the foundation sought to be laid for extensive classes of contempts not legitimately and necessarily sustained by these great principles, that it has been contested. It is a branch of the common law, brought from the mother country and sanctioned by our constitution. The discretion involved in the power is necessarily, in a great measure, arbitrary and undefinable, and yet, the experience of ages has demonstrated that it is compatible with civil liberty, and auxiliary to the purest ends of justice, and to the proper exercise of the legislative functions, expecially when these functions are exerted by a legislative assembly.’
“And in the language of Mr. Chief Justice Watkins in Cossart v. The State, 14 Ark. Rep. 541; ‘The power of punishing summarily and upon its own motion, contempts offered to its dignity and lawful authority, is one inherent in every court of judicature. The offense is against the court itself, and if the tribunal have no power to punish in such case, in order to protect itself against insult, it becomes contemptible and powerless, also in fulfillment of its important and responsible duties for the public good. * * *”

In this case, the basis of any alleged charge of contempt of court was a matter within the knowledge of the Chancellor himself inasmuch as the motion filed in the Desha County Court on August 25, 1970 and the renewed and supplemental Motion filed in that case on September 15, 1970, to which were attached the affidavits of Petitioners John A. Davis and Bill R. Holland, all related to a purported telephone conversation between Davis and Holland and the Chancellor on August 12, 1970, and the act of the Chancellor in filing his "summarized findings and conclusions” in Case No. 763 on Ausust 13, 1970, and his entry of decree in the case which was filed with the Clerk on September 3, 1970. These statements were reiterated in Petitioners’ abstract and brief as referred to in the above order.

The Court did not see fit to cite the Petitioners summarily for the alleged contempt nor did it file, or cause to be filed, an accusation against the Petitioners, cause them to be notified of the accusation and give them a reasonable time within which to make their defense.

Instead, the Court, in its order entered June 23, 1971, appointed a committee of three lawyers practicing in the Second Chancery Circuit in Arkansas to conduct an investigation and to report to the Court whether or not, in their opinion, based on their investigation, any part or portion of Volumes One (1) and Two (2), filed with this Court in Case No. 5598 and in the Chancery Court in case No. 763, constituted contempt of court or violation of the Code of Professional Ethics; further stating that upon the filing of said report by the Committee the Court would take further action in the matter consistent with the facts, and if the report showed any violations, then a committee would be appointed to draft and file charges against the alleged violators in the Chancery Court and the Supreme Court of Arkansas.

We find this order exceeded the jurisdiction of the Chancery Court both as to the possible charge of contempt and, as we will hereinafter discuss, the possible charge of violation of the Code of Professional Ethics.

The order, in effect, purported to confer upon the three committee members the right to conduct a preliminary trial of the Petitioners, granting the committee, or any designated member of the committee, the authority to accept, hear and take evidence during said investigation, either by affidavit, statement, or oral examination, without granting to Petitioners the right to present evidence upon the issues involved, nor did it provide any method by which Petitioners could test the truthfulmess of evidence taken by “affidavit”, “statement” or “oral examination”. The order further authorized the Clerk of the Court to issue subpoenas for witnesses upon request of any member of the committee and authorized the Sheriff to serve such issue writs upon the person therein designated for service. Again, no provision was made for subpoenas to be issued at the request of Petitioners and had the investigation proceeded it would have been solely within the discretion of the committee as to the witnesses to be heard.

We are not impressed with Respondent’s argument that the members of the committee were in effect, “Masters in Chancery”, to take the proof and file their report. They were not designated in the order as “Masters” but as a “committee” to investigate the acts of Petitioners; the record of proceedings in Desha Chancery Court in Case No. 874, in which the order was complained of was entered, does not reflect that the members of the committee were sworn in open court as required by Section 27, 1802 of the Arkansas Statutes, Ann., 1962 Replacement, which provides:

“Oath — Every master before entering upon the duties of his appointment, shall be sworn in open court, faithfully and impartially to perform the duties of his appointment, which shall be entered on the minutes.”

The aforementioned record of proceedings does reflect a letter from one member of the committee to the other two members and the Clerk of Court in which it is stated: ‘The only action taken by the committee to date to my knowledge is a meeting on June 50, 1971, wherein Mr. Roberts was elected Chairman, Mr. Barker elected Secretary-Treasurer and I was elected Vice-Chairman. This was done without knowledge of said Writ.” (referring to Temporary Writ of Prohibition issued by this Court.) This action certainly indicates that the members of the committee felt that they were acting as a committee and not as masters in chancery. Further, Section 27-1801 of the Arkansas Statutes, Ann., 1962 Replacement, provides as follows:

“Powers of Masters. — Each master in chancery shall have power to take testimony and to administer oaths and to compel the attendence of witnesses in all matters referred to him, and to do and perform all such other ministerial acts as are commonly performed by a master in chancery.”

The Respondent has been on the bench for many years and had he considered the members of the committee to be masters in chancery, he would not have considered it necessary to confer subpoena powers upon the committee, to authorize the Clerk to issue such subpoenas and the Sheriff to serve them. Nor would he have found it necessaary in such order to appoint the Court Reporter of the Circuit to serve as reporter for said committee to report any evidence directed to be taken by the Committee or other proceedings of the committee. Section 27-1806 of the Arkansas Statutes, Ann., 1962 Replacement, provides that the master shall reduce to writing the testimony of all witnesses examined by him, and shall have power to commit such witnesses as may refuse to testify.

In the case of State ex rel. Purcell v. Nelson, 246 Ark. 210, 438 S.W. 2d 33, this Court said:

“(16 — 29) In his first pretrial order, the chancellor appointed a Special Master, and instructed him to prescribe rules for the expeditious and orderly progress of the tasks with which he was charged, and to proceed with hearing of evidence and ruling upon all matters of fact and law incident thereto. The master was directed, upon completion of the presentation of evidence, to prepare and file his recommended findings of fact and conclusions of law and a proposed decree. In this respect, the trial court was proceeding illegally. Before a master is appointed, the main issue establishing the rights of the parties should be determined so that definite directions can be given to the master for his guidance. Hicks v. Hogan, 36 Ark. 298; Fullenwider v. Bank of Waldo, 101 Ark. 259, 142 S.W. 149. It was pointed out, in Hicks v. Hogan, that the chancellor should hear the cause upon the pleadings and such evidence as may enable him to determine the principles to be applied in adjusting the equities of the parties and then make a reference to a master for such special inquiries or statements of accounts as may aid the court in making a definite decree. The decision in La Buy v. Howes Leather Co., 352 U. S. 249, 77 S. Ct. 309, 1 L. Ed. 2d 290 (1957) involved the application of the very same principle to an antitrust case which included charges of monopoly and price fixing under the Sherman Act. In that opinion, the United States Supreme Court stated that the use of masters was to aid judges in the performance of specific judicial duties as they arise and not to displace the court. They held that the appointment of a master and a reference at the inception of the case is to take evidence and to report the same to the court with his findings of fact and conclusions of law was an action beyond the court’s powers. There, as here, an effort was made to support the reference by reason of anticipation of a lengthly trial, complexity of the issues and congestion of the court’s calendar. We agree with the Supreme Court of the United States that these reasons do not constitute sufficient grounds for the virtual displacement of the court by a Special Master. While we can conceive of situations in which a reference of particular matters may be made to a master during the course of litigation, a reference as broad as the one involved here is clearly in excess of the court’s jurisdiction and in that respect the court proceeded without authority of law. Jones v. Adkins, 170 Ark. 298, 280 S.W. 389, relied upon by appellees, is not contrary to this view. The only issue there was an accounting, for which purpose we have always recognized the power of the court to appoint a master. If this case should reach the point where the only issue remaining is a matter of accounting, the appointment of a master would be appropriate.”

In this case there was no action pending but only an ex parte proceeding appointing a committee to investigate the possible contempt of court or violation of the Code of Professional Ethics on the part of the Petitioners. The record does not show the issuance of summons to be served upon Petitioners, but rather that the matter was, as stated, an ex parte proceeding. Thus, we conclude that the members of the committee were not acting as masters in chancery.

While the committee was not limited in its investigation to the fourteen specific points contained in the Court’s order as set forth above, we have set them forth in detail in order to demonstrate their wide range, there being contained therein many items going both to the possible charge of contempt of court and the possible charge of violation of professional ethics, as well as many questions the answers to which were peculiarly within the knowledge of the chancellor.

Neither in the exercise of the Court’s inherent power to punish for direct contempt nor in the exercise qf its power to file, or cause to be filed, a charge of constructive contempt, do we find any constitutional, statutory, or case law which would justify the entry of the above order. The order did not purport to direct or authorize the committee to file charges against the petitioners in the event their investigation showed probable cause but stated that upon the filing of said report by the committee, the court would take further action in the matter consistent with the facts and if the report showed any violations, then a committee would be appointed to draft and file charges against the alleged violators in the Chancery Court and in the Supreme Court of Arkansas.

B.

Violation of the Code of Professional Ethics.

Clearly, the Chancery Court exceeded its jurisdiction in its order of June 23, 1971, when it directed the committee to conduct an investigation of the statements contained in the abstract and brief (designated as Volumes 1 and 2, respectively in that order) and report to the Court whether or not in their opinion, based on their investigation, any part or portion of said volumes constituted a violation of the Code of Professional Ethics.

In the general election of 1938, Amendment No. 28 to our Constitution was adopted. It reads:

“The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.” 1 Ark. Stats. Ann., 228.

Rules regulating the professional conduct of attorneys at law were adopted by this Court on April 24, 1939, such rules providing for a Bar Rules Committee to be appointed by the Court. Armitage v. Bar Rules Committee, 223 Ark. 465, 266 S.W. 2d 818. By order dated June 2, 1969, effective June 15, 1969, the rules were amended and the committee is now called Supreme Court Committee on Professional Conduct. Record of Proceedings, Supreme Court, Book C-46, Page 551, et seq.

The exclusive jurisdiction of the Bar Rules Committee, now the Supreme Court Committee on Professional Conduct, is well illustrated in the case of Hurst v. Bar Rules Committee of the State of Arkansas, 202 Ark. 1101, 155 S.W. 2d 697 (1941), where we said:

“This court in several cases prior to the adoption of Amendment No. 28, and the promulgation of rules by this court under the authority of this amendment, has sustained the power to disbar an attorney as inherent in all courts to protect the courts and the public, as well as to maintain the honor of the profession, * * *
“Now, since the adoption of the rules by this court, and the appointment of the Bar Rules Committee to act under these rules, it becomes the duty of the Bar Rules Committee 'to make investigation of all complaints of professional misconduct that might be brought to its attention, in the form of an affidavit, or in response to any information, of which any member of the committee may have.’ They are required to give the accused attorney an opportunity to explain or refute the charge, and after a hearing if they think the facts warrant it, it is their duty to cause a complaint to be filed in the court against the attorney, who, after reasonable notice, not less than 20 days, is entitled to a trial before the circuit judge or chancellor. This throws an additional protection around the attorney and thus before he is convicted, he has had the opportunity of a hearing before two tribunals.”

In the case of Armitage v. Bar Rules Committee, supra, it was stated:

“* * * The Committe’s creation and existence in this Court’s determination that an impartial tribunal should consider complaints of professional misconduct, sift substantial accusations from charges based upon personal pique, disappointment, or prejudice, and then, in respect of serious implication, permit the attorney to explain the transaction and, when he so desires, bring witnesses before the Committee to substantiate his position.
“By this process minor professional deviations are disposed of justly without public embarrassment. # # *”

In the matter of Supreme Court License Fees, 251 Ark. 800, 485 S.W. 2d 174, this Court stated:

“In 1938 the people of Arkansas adopted Constitutional Amendment 28, consisting of a single sentence: ‘The Supreme Court shall make rules regulating the practice of law and the professional conduct of attorneys at law.’ The language of the Amendment is mandatory, affirmatively imposing upon this Court the duty of making and enforcing rules governing the practice of law and the conduct of lawyers. The duty necessarily extends to the enforcement of the rules as well as to their promulgation, for without enforcement the purpose of the Amendment would fail.”

Under the rules, attorneys against whom charges are made are given the opportunity to explain or refute such charges during the committee investigation and then, if the committee finds reasonable grounds to believe misconduct exists, it may either caution, reprove or reprimand the attorney or file charges in the Circuit or Chancery Court. Such rules afford both the committee and the attorney the right to subpoena witnesses and provide for an appeal to this court by either party.

We agree with Petitioners’ argument that the June 23rd order entered by the Chancery Court of Desha County, Arkansas, purporting to launch an investigation into the professional conduct of Petitioners, clearly circumvents the procedure established by this Court pursuant to amendment 28 and contravenes the fundamental reasons for the creation of a committee on professional conduct. Again, we agree with Petitioners’ statement that the order of June 23, 1970 entered by the Chancery Court in its Case No. 874, is contrary to this Court’s order establishing the committee on professional conduct and is without constitutional, legislative or judicial basis.

Clearly, the Committee’s investigation, although made in the utmost good faith, could cause irreparable injury to the professional reputations of Petitioners in a manner wholly unauthorized by law.

In view of what we have said, the Temporary Writ of Prohibition entered in this cause on June 28, 1971, is made permanent and the order of June 23, 1971 is hereby quashed and set aside. See Robinson v. Meritt, supra; State ex rel Purcell v. Nelson, supra; Monette Road Improvement District v. Dudley, 144 Ark. 169, 222 S.W. 59, for a full discussion of the function of the Writ of Prohibition as it is applied in this case.

Holt, J., disqualified and not participating. Byrd, J., disqualified and not participating. Special Associate Justice Charles A. Walls, Jr., sitting in his stead.


author: Chas. A. Walls, Jr., Special Justice.

text:
    PINE BLUFF PRODUCTION CREDIT ASSN. and WHITEOAK ENTERPRISES, INC. v. H. G. LLOYD and Mary F. LLOYD, husband and wife, Hershel Leon LLOYD and McGEHEE HATCHERY & POULTRY FARMS, Inc.
    5-5598
    480 S.W. 2d 578
    Opinion delivered May 22, 1972
    [Rehearing Denied June 26, 1972.]

      Bridges, Young, Matthews & Davis, for appellants.

      James A. Ross and James A. Ross, Jr., for appellees and appellants H. G. Lloyd et al; Smith ir Smith, for appellee Ralston Purina Co.
   Chas. A. Walls, Jr., Special Justice.

This litigation was the result of several financial transactions between the Appellant, Pine Bluff Production Credit Association, herein referred to as PCA and the Appellees and Cross-appellants, McGehee Hatchery and Poultry Farms, Inc., an Arkansas corporation, and H. G. Lloyd, Mary F. Lloyd and Hershel Leon Lloyd, herein referred to as McGehee Hatchery and the Lloyds. The PCA was engaged in the business of making agricultural operating loans and the Lloyds were engaged in the business of operating a chicken hatchery and hen houses for commercial production of eggs, including the processing of eggs for sale. This business was located in Mc-Gehee, Arkansas.

The Appellant, PCA, made loans to the Appellees and Cross-complainants; the first in June of 1966 for $225,-000.00; the second in October of 1966 for $90,000.00; and the third in July of 1967 for $79,000.00. At the time the foreclosure action was filed on July 22, 1969, the note evidencing the first loan had been paid. However, this note was past due when paid. Trial on the $90,000.00 note and $79,000.00 note was commenced on the 16th day of March, 1970, in the Chancery Court of Desha County, McGehee District, and the submission of evidence was completed on April 18, 1970. The Trial Court entered its “Summarized Findings and Conclusions” on the 13 th day of August, 1970, and the Decree was filed September 3, 1970.

The Summarized Findings and Conclusions as filed States:

“1. PCA should have judgment against Lloyds for the amount sued for in its complaint and amendments.
2. Lloyds should have judgment on their counterclaim and cross-complaint against PCA and White-oak as damages for the amount of the judgment mentioned in Part 1.
3. The notes and mortgages and security instruments sued on herein bv PCA should be cancelled and removed as cloud from the properties of Lloyd.
4. The solicitor for PCA should draft precedent for decree in accordance with these findings and submit the same to the solicitor for Lloyd for approval as to form.
Dated: August 12, 1970
/s/ James Merritt Chancellor”

The decree, which obviously was not prepared by the solicitor for the PCA, awarded the PCA a judgment for the balance due on the October 5, 1966, note and a judgment for the full amount on the July 19, 1967, note, together with interest for a total amount as of September 1, 1970, of $170,025.71. The decree also contained a judgment in favor of PCA for the sums expended by it for insurance premiums upon the life of H. G. Lloyd in the amount of $5,945.50, or a total judgment as of September 1, 1970, in the amount of $175,971.21, with a credit for stock in PCA of $11,250.00 or a net judgment as of September 1, 1097, in the sum of $164,721.21.

There being no issue in regard to this part of the judgment it should be affirmed and the liens sought in the complaint established in favor of PCA and the ministerial acts of completing the foreclosure of these liens should be completed.

The Trial Court granted judgment against PCA in the sum of $55,150.24 for loss of feed purchased; $16,000.00 loss on egg sales; $59,894.50 damages from sale of hens; $20,320.80 rental on real property, houses and equipment; and the sum of $21,000.00 damages for waste on premises and equipment, aggregate being $172,365.04, with interest at 6%. An attorney fee of $7500.00 was ordered paid by the Appellees, McGehee Hatchery and the Lloyds, to the PCA attorneys. These parts of the decree constitute the points in issue on this appeal.

The McGehee Hatchery, an Arkansas corporation with its stock being owned within the family and Oscar Lee Lloyd, a brother, was located in McGehee, Arkansas. The business was operated by H. G. Lloyd, his sons, Hershel Leon Lloyd and Charles Lloyd, and his brother, Oscar Lee Lloyd. They were engaged in the production of eggs commercially and in other phases of the chicken and egg industry. H. G. Lloyd and his sons lived in homes that adjoined the hatchery and real estate.

H. G. Lloyd started this business in the late 1940’s and had expanded so much the local banks could not furnish the capital desired by the Lloyds in the operation of the business. The Lloyds and McGehee in 1966 sought financing from PCA because they needed capital that exceeded the limit that could be furnished by the Dermott State Bank. In June 1966 the $225,000.00 loan was obtained from PCA and on October 5, 1966, an additional loan of $90,000.00 was obtained by McGehee from PCA.

At this time McGehee was operating a feed mixing mill, chicken hatchery, hen houses for egg production and egg processing facilities. They were hatching chicks under contract for Arkansas Valley, Inc., which sold chicks and feed. The feed mill of Arkansas Valley, Inc., burned in May of 1967 and McGehee discontinued this part of the hatchery operations. At this time the egg market was getting into a depressed period and the cash flow was diminishing. Ralston Purina, a commercial feed company, negotiated an agreement with McGehee where it would furnish the feed and help market the eggs, PCA would make an additional loan to place chicks in the houses. This was in June and July, 1967. PCA made the loan of $79,500.00 on July 19, 1967, for the purchase of the chicks and fulfilled their part of the agreement.

In May of 1968 the egg market was still in a depressed condition. Ralston Purina changed credit managers and stopped making the payments, which were part of the 1967 agreement, to PCA; PCA became concerned and arranged a meeting with Ralston Purina representative, H. G. Lloyd and Hershel Leon Lloyd; this was in June of 1968. Some changes were made in the agreement, including the change where all proceeds from the sale of eggs were to go to Ralston Purina. Hershel Leon Lloyd, the son who actually had managed the business, took another job on September 18, 1968, because the hens had depleted to a level he could not justify his employment.

McGehee and Lloyds under the existing loan agreements were committed to pay $11,000.00 monthly on PCA loan. After the meeting in May of 1968 by agreement the PCA payment was reduced to $5500.00 monthly. Purina was furnishing the feed and was to receive proceeds from egg sales, except locals. Purina was to pay PCA and Mc-Gehee on the basis of each dozen sold.

The McGehee egg production was what is called a floor operation; the hens being kept on the floor rather than on wire. There were nests and the hens would jump up into the nests to lay the eggs. They had automatic feeders and waterers. This floor operation, which is not used anymore, takes more labor and results in more dirty and stained eggs.

In October of 1968 H. G. Lloyd, the father, was in poor health. He had been in poor health for about two years. He had emphysema which was aggravated by the dust in the hen houses and was not able to go in the houses. His son Charles had been employed elsewhere Since June of 1968 and his son Hershel Leon had not worked at the Hatchery since the 18th day of September, 1968. His brother Oscar Lee Lloyd was helping and was actually managing the business. H. G. Lloyd, in October of 1968, called Danny Bourland, then manager of PCA, and advised him he was not feeding the hens any longer. Mr. Bourland immediately went to McGehee and found the above situation.

After several conferences between Bourland and H. G. Lloyd, it was determined best to dispose of the hens. Bourland sent buyers to H. G. Lloyd and a sale was consummated for the hens. They were purchased by Whiteoak and the hens were to lay out on the premises. This was in October of 1968. The action on the notes and for foreclosure of the liens was filed in July of 1969.

On appeal the first question involves the findings of fact by the Chancellor. The Court has since its announcement followed the rule laid down in Leach v. Smith, 150 Ark. 465, where it stated:

“The rule was early announced and has been consistently adhered to that the findings of the Chancellor will not be set aside by this Court unless they are clearly against the preponderance of the evidence. This simply means that on a trial anew of the issues of fact in a Chancery cause on the record as presented to this Court on appeal, unless it is clear to our minds, that is, unless we are fully convinced as to which of the parties litigant is entitled to the decision, we accept and adopt the findings of the chancellor as our own and treat them as conclusive. The meaning of the rule may be shown by this simple illustration: When Chancery causes are taken up for determination by this Court, the judicial balance, so to speak, stands at perfect equipoise. One side of the scales is labeled “appellant,” the other “appellee.” The testimony in the record is examined and all that is incompetent is discarded. That which remains for appellant is put on his side, and that for the appellee is put on his side, and if the scales are evenly balanced, or so nearly so as to leave the judges in doubt as to where lies the greater weight, the the decision of the Court below is persuasive and is allowed to stand as the correct result.
While the rule has been stated in different forms and in somewhat different language in various decisions of this Court, the above we believe correctly states and illustrates the rule that the Chancery causes are tried de novo in this Court and that the findings of fact by the Chancery court are allowed to stand unless they are clearly against the preponderance of the evidence.” Leach v. Smith, 130 Ark. 465; State Bank v. Conway, 13 Ark. 350; Ringgold v. Patterson, 15 Ark. 209; Woodruff v. Core, 23 Ark. 341; Gerson v. Pool, 31 Ark. 85; Chapman v. Liggett, 41 Ark.292.”

After a careful review of the record, which consists of 1076 pages of testimony and 318 pages of exhibits and pleadings, this Court is unable to conclude that the findings of fact are not clearly against the preponderance of the evidence on the cross-complaint and counter-claim of McGehee and Lloyds.

On appeal in this case the first matter presented to the Court involved the findings of fact by the Chancellor. From the testimony in the record we find that the son, Hershel Leon Lloyd, on direct examination was the only witness to testify that the Production Credit Association closed the first feed mill; however, the record clearly reflects the reason that the feed mill was closed, if closed, and there was evidence that it never closed, was the result of the agreement entered into with Ralston Purina Feed Mills. This agreement, which was entered into in 1967, was one of the methods the appellee used to obtain additional financing.

When appellees were operating the feed mill, it was required of them to pay cash for the ingredients. By purchasing the mixed feed from Ralston Purina, the appellees could get the feed and not pay for it until later. Purina was extending credit for the feed. There was no need for continuing the operation of the feed mixing mill as Purina was furnishing the mixed feed on credit. The simple, unsupported statement from one witness will not of itself alone be considered a preponderance of the evidence where there are many witnesses and the record as a whole reflects contrary evidence.

From all of the testimony in the record no conclusion can be reached except that the PCA had no control or influence over the closing of the feed mixing mill or the sale of the eggs.

The findings of the Chancellor:

“That prior to June 1, 1967, McGehee owned and operated its own feed mill for its laying hens and on or about said date plaintiff through its agent, Danny Bourland, required defendant to close its feed mill and purchase feed from commercial feed company at prices much greater than defendant could have produced its own feed. The difference between cost of feed purchase was $55,150.24, more than it would have cost defendant to produce its own feed and defendant should be awarded a judgment for that amount as damages against PCA and
[The findings] that about June 1, 1967, PCA by its agent, Danny Bourland, required McGehee to sell eggs at markets other than those selected by the defendant and defendant having its own market was damaged by lower prices received for its eggs sold on markets not selected by it. The difference between what defendant could have received for eggs sold on local markets and lower markets at which eggs were sold from June 1, 1967, until November 1, 1968, amounts to $16,000.00 and said defendant should be awarded judgment against PCA for $16,000.00”

are not supported by the testimony of the witness or the exhibits in the record.

McGehee Hatchery’s principal witness on the sale of eggs was Leon Lloyd, who testified:

“Q. Did Mr. Bourland at that meeting or did he at any later meeting ever tell you where to sell your eggs?
A. No, I don’t believe that Danny Bourland told us where to sell our eggs. I think that he left this portion of the agreement to Purina’s judgment, I believe.”

In regard to the findings of the Chancellor on the closing of the feed mill and sale of eggs, we find no conflict in the testimony with the evidence against these findings.

H. G. Lloyd testified in regard to selling the eggs to Jersey Coast market.

“Q. You knew one thing for sure that he didn’t have any contract with you.
A. I knew that, you darn right.
Q. And you weren’t about to sell your eggs there if you wanted to sell them somewhere else, were you.
A. If I could beat it.
Q. And you did.
A. Not at that time. Later I did.”

Of greater concern to this court is the portion of the appeal relating to the findings by the Chancellor:

“That on or about November 1, 1968, PCA, by its agent, Danny Bourland, sold all hens owned by McGehee on which plaintiff held security interest. Plaintiff did not make said sale pursuant to law relating to foreclosure of security interest in personal property and is liable in damages arising out of said sale. Plaintiff sold hens without consent of McGehee and did not proceed in accordance with UCC procedure for foreclosing security interest in disposing of hens and failed to send reasonable notice of sale. Disposition of hens was not commercially reasonable in accordance with Ark. Stat. Ann. 85-9-504. Judgment for defendant for $49,994.50 on 56,000 hens and $9900.00 on 9000 hens.”

The preponderance of the testimony reveals the sale of the hens, which occurred in October of 1968, was proximately the result of the sons, Charles Lloyd and Leon Lloyd, having left the business and Mr. H. G. Lloyd’s poor health preventing him from carrying on the operation. Oscar Lee Lloyd, a brother of H. G. Lloyd, was taking care of the business.

At the same time the hens were sold to Whiteoak Enterprises by H. G. Lloyd, the president of McGehee, the sale had been discussed with his wife and son, Leon. At this time H. G. Lloyd, among other things, was suffering with emphysema and could not go in the hen houses. The egg market was still depressed. He had no operating capital. The only key personnel left was his brother, Oscar Lee. The flock was approaching being a border between salvage and molt. There were no replacement birds available. They owed Purina about $100,-000.000; PCA around $180,000.00, and the Bank of Mc-Gehee.

The facts surrounding the sale of the hens began when H. G. Lloyd called Mr. Bourland, who was with the Pine Bluff PCA, and advised Bourland that he was not feeding the hens anymore. When this occurred, Mr. Bourland visited with Mr. H. G. Lloyd, who requested Mr. Bourland to assist and protect the security in the sale of the birds. Mr. Bourland, in an effort to help in the sale of the hens, in compliance with Mr. Lloyd’s request, and in order to preserve the security, made a number of contracts about the sale, and the evidence clearly reflects that Mr. H. G. Lloyd entered into an agreement with Whiteoak for the sale of the birds after considerable negotiating.

The appellees contend that PCA sold the hens to Whiteoak Enterprises and the sale was made without the consent or authorization of McGehee at a price less than the market value.

The Chancellor found that PCA by its agent, Danny Bourland, sold all the hens owned by McGehee that PCA held a security interest on. The question became one of “Who sold the hens?”

PCA contends, and the evidence supports this contention, that Danny Bourland actively sought buyers for the hens, referred them to Mr. H. G. Lloyd and finally in late October of 1968, a contract of sale was entered into between McGehee Hatchery and Whiteoak.

Leon Lloyd, who was no longer with the business at the time of the sale of the hens, testified on direct examination, in his first appearance as a witness, that he did not know anything about the sale of the hens and had nothing to do with it. At a later date on cross-examination he testified he was against selling the hens to White-oak and told his Dad. This was the day he showed the hens to Mr. Treat, of Whiteoak, while his father was talking to Mr. Foster, of Whiteoak.

There is no question Bourland actively sought buyers for the hens. Sherland, a banker who appeared as witness for appellee, testified he would have done this had the loan been with his bank. All of the buyers Mr. Bourland referred to McGehee testified Mr. Bourland advised them they would have to make the purchase from Mr. Lloyd. The sale was made to Whiteoak by Mr. H. G. Lloyd, who was the real owner of McGehee. There is no question Mr. Bourland actively participated in the sale by acting as a go-between. All of the prospective buyers, including the purchaser, testified to this fact. Mr. Bourland was not present when the details of the final negotiations were worked out. The evidence does reflect that Oscar Lee Lloyd was employed by the purchaser as manager of the operation of Whiteoak at the McGehee Hatchery location. The purchaser left the hens at the McGehee Hatchery at the request of Mr. H. G. Lloyd, in order to make a sale of the business and realty easier, which could have more value as a going business. He continued the employment of the employees as requested by Lloyd. Mrs. Lloyd even testified she heard her husband tell Bourland to sell the hens. Mr. H. G. Lloyd was the only witness to testify that he did not sell to Whiteoak. There were many discrepancies in his testimony such as: he testified Mr. Lowe worked for him. Mr. Lowe testified they could have worked out something for him to work for Mc-Gehee had Mr. Lloyd not sold to Whiteoak. He denied calling Bourland and telling Bourland he was not going to feed the hens another day on direct examination, but on cross-examination admitted he might have said he was not going to feed the hens another day, but did not mean it that way, only was trying to get some more money. Mr. Lloyd testified he did not agree to the sale of the hens. Mr. Thorp, Mr. Bourland, Mr. Treat, Mr. Foster, and Mrs. Lloyd all testified that Mr. H. G. Lloyd sold the hens and agreed to the sale. The existing circumstances surrounding the entire transaction are such that the preponderance of the evidence on who sold the hens falls on the finding of fact that H. G. Lloyd made the sale.

The question of notice of the sale and commercial reasonableness of the sale under Ark. Stat. Ann. Sections 85-1-201 and 85-9-504 (3) become immaterial as H. G. Lloyd either agreed to or made the sale. This Court has not had before it the question of notice of sale and commercial reasonableness of the sale where the sale involved collateral which was perishable or threatened to decline speedily in value.

The lower Court entered judgment against PCA for rental on the real property, houses and equipment, in the sum of $21,000.00

H. G. Lloyd having made the sale of the hens to Whiteoak, rental, if any, would be due from Whiteoak. The facts as they appear in the testimony do not involve PCA in the rental for the use of the real property, house and equipment. The undisputed testimony was that for the Selma farm, upon which PCA had no mortgage, McGehee sought l<t per square foot per month rent after McGehee put wire in to get the hens off the floor. Whiteoak did not rent but moved the hens. Mr. H. G. Lloyd at one time told Mr. Foster, with Whiteoak, to pay him, Mr. Lloyd, four or five dollars a month for the used of the buildings. There was no mention of rent at the time of the agreement as Mr. Lloyd wanted the hens to lay out where they were located. There is no evidence that PCA rented the real property, houses and equipment. The bill that was sent for rent was sent to Whiteoak.

The appellee contends that Whiteoak took possession of the premises and at this time PCA was a mortgagee in actual physical possession of the property by and through Whiteoak. This contention is not supported by the evidence.

The rule adopted by the Court in Caldwell v. Hall, 49 Ark. 508, that a mortgagee in possession is liable for all rents collected or that could be collected by ordinary diligence and must apply them in discharge of the mortgage debt, unless otherwise applied by agreement. Donham v. Lack, 200 Ark. 445, has no application to the facts.

Here PCA was never in possession of the houses, property or equipment. Whiteoak was in possession of the mortgaged property to the extent of using some of the hen houses. Oscar Lee Lloyd used some of the property and equipment and paid rent to H. G. Lloyd.

Whiteoak used the egg graders and tried to pay H. G. Lloyd. Lloyd sent Whiteoak a statement for rent. The agreement made between H. G. Lloyd and Whiteoak about the use of the hen houses did not include the mortgagee, PCA.

The lower Court entered a judgment against PCA for rental on the real property, houses and equipment. There is no evidence PCA was ever in possession of the real property, houses and equipment and no judgment against Whiteoak which was in possession. There was no appeal from this part of the judgment by McGehee and Lloyd.

The last part of the monetary findings against PCA to offset the judgment of PCA against the Lloyds and McGehee involves alleged damage to the facilities and premises. This part of the judgment grants judgment against PCA in the sum of $21,000.00 damages for waste on premises and equipment.

Part of the agreement made between H. G. Lloyd and Whiteoak was for Whiteoak to employ Oscar Lee Lloyd, stockholder in McGehee and brother of H. G. Lloyd. Oscar Lee Lloyd was employed by Whiteoak to manage the operation at McGehee while Whiteoak was laying out the hens purchased from McGehee. The testimony is undisputed that Oscar Lee Lloyd as local manager had the full authority to make any and all repairs he felt necessary for the upkeep of the houses and equipment.

Whiteoak was in possession under agreement with H. G. Lloyd with a stockholder of McGehee managing the operation. The judgment against PCA which did not have possession and could not have committed waste on premises and equipment.

The judgment on the cross-complaint and counterclaim of McGehee and Lloyds against PCA is reversed.

The mortgage and security interest liens of PCA on the real and personal property are found to be first and prior liens on the property therein described and if the judgment is not paid within the time fixed by the Court then the property should be sold to apply toward the satisfaction of the judgment.

The attorney fee of $7500.00 is inadequate for the obvious time that has been involved in this litigation. The record consists of 1076 pages of testimony and 318 pages of pleadings and exhibits. The attorney fee for the attorneys for the PCA is fixed at $16,400.00

The action of the lower Court in amending the decree filed September 3rd deleting therefrom the paragraph that invalidated the lien of Ralston Purina is affirmed.

The complaint only put in issue the priority of the liens. McGehee and Lloyds in their pleadings only raised the issue of the validity of PCA mortgages and security interest.

The validity of the Ralston Purina mortgage and security interest was never in issue.

Byrd, J., disqualified and not participating.

Holt, J., disqualified and not participating.

Special Associate Justice Eugene A. Matthews, sitting in his stead.