author: J. Seaborn Holt, Associate Justice.

text:
    Hickinbotham v. Williams, Chancellor.
    4864
    296 S. W. 2d 897
    Opinion delivered December 17, 1956.
    [Rehearing denied January 21, 1957.]

      Kenneth Goffelt, for petitioner.

      Bailey, Warren & Bullion, for respondent.
   J. Seaborn Holt, Associate Justice.

On July 9,1956 the City of Little Rock duly enacted Ordinance 10206 which prohibited the operation of grocery stores and meat markets on Sunday. The ordinance contained these provisions: “Section 1. That it shall be unlawful for any person or persons, firm, corporation or association within the corporate limits of the City of Little Rock, Arkansas, on the first day of the week, commonly called Sunday, to open to the public, or to sell, or offer to sell, give away, or dispose of, in any manner from any grocery store, building or establishment where groceries, fruits or vegetables or articles ordinarily sold from a grocery, fruit or vegetable store or stand; or to open any meat market, sell, offer to sell or give away from such meat market any meats or other products ordinarily sold or handled in meat markets; and all such grocery stores and meat markets shall be closed on said day; provided, however, that nothing herein contained shall extend to those who conscientiously observe the seventh day of the week as the Sabbath, and in pursuance of such observation, shall close and keep closed their store or meat market on the seventh day of the week, commonly known as Saturday. Section 2. That any person, persons, firm, corporation or association violating any of the provisions of this ordinance shall be deemed guilty of a misdemeanor; and upon conviction thereof, shall be fined not less than Twenty-Five Dollars ($25.00) nor more than One Hundred Dollars ($100.00) for each separate offense. Section 3. That each Sunday which such grocery store and/or meat market is opened to the public for purposes prohibited in Section 1 of this ordinance shall be deemed a separate offense. Section 4. That all ordinances or parts of ordinances in conflict herewith are hereby repealed.” Section 5 was an emergency clause. Petitioner Hickinbotham, who had on many Sundays prior to the enactment of said ordinance operated his grocery store on the sabbath, continued to keep open and operate on practically every Sunday since the enactment of the ordinance.

Plaintiffs, some 20 in number, who operated retail grocery stores in Little Rock, on behalf of themselves and all others similarly situated, filed suit in Pulaski Chancery Court August 17, 1956, seeking to enjoin appellant from continuing to open and operate his grocery store on Sunday. Plaintiffs alleged, in effect, that appellant’s consistent and continual violation of the above ordinance amounted to a public nuisance and damaged their civil property rights and privileges. Hickinbotham filed one general and two special demurrers to the complaint, in which he questioned the constitutionality of the ordinance and the jurisdiction of the Pulaski Chancery Court to enjoin him under the allegations of the complaint. On a hearing the court overruled the demurrers, whereupon the plaintiffs (retail grocers) asked for a temporary, restraining order, which the court granted on the following morning, and after plaintiffs had given a bond, which was approved and filed, Hickinbotham continued his practice to open and operate his grocery store on Sunday. Subsequently and on September 18, 1956, the court ordered petitioner to show cause why he should not be punished for contempt of the court for willful disobedience of the court’s order. On a hearing, Hickinbotham was adjudged guilty of contempt for having kept his store open on Sunday, September 16, 1956, in violation of the court’s order, and his punishment fixed at a fine of $50.00 and a term of ten days in jail.

Petitioner has filed in this court “Petition for Writ of Certiorari” alleging: “Petitioner alleges that all of the judgments, orders and decrees for temporary restraining order, and the judgment holding petitioner in contempt of court is void. They are void because the Chancellor has no jurisdiction to enter, or cause to be entered, any such orders, judgments or decrees, as herein referred to, or either of them. The judgments, orders and decrees violate the constitutional rights of petitioner under both the Arkansas Constitution and U. S. Constitution. They violate the Arkansas Statutory rights of the petitioner. Petitioner, therefore, alleges that because of the above and foregoing facts, which the petitioner alleges to be true, he is now being unlawfully and wrongfully punished under the Chancellor’s decree holding him in contempt of court, which judgment and decree is now being enforced.” We hold that this writ must be denied.

The above ordinance is constitutional. It is based on our basic statute, Ark. Stats. 1947 § 41-3802-3, and is consistent with this statute. In a similar situation in the case of Taylor v. City of Pine Bluff, 226 Ark. 309, 289 S. W. 2d 679, wherein Taylor was convicted under the above basic statute for having his grocery store open on the sabbath, we held the above statute constitutional. We there said: “We prefer to give full effect to the presumption of constitutionality that attends every statute and to uphold the statutory classification in the absence of proof indicating that there is no reasonable basis for the distinctions laid down by the legislature. Under this view, which prevails in many jurisdictions, Sunday laws applicable only to grocery stores and meat markets have been held to represent a reasonable classification. People v. DeRose, 230 Mich. 180, 203 N. W. 95; State v. Somberg, 113 Neb. 761, 204 N. W. 788; see also Theisen v. McDavid, 34 Fla. 440, 16 So. 321; State v. Towery, 239 N. C. 274, 79 S. E. 2d 513, appeal dismissed, 347 U. S. 925. It is our conclusion that a Sunday law applying only to grocers would be valid and that therefore the appellant is entitled only to be treated in the same manner as other grocers ...”

The Pulaski Chancery Court had jurisdiction under the complaint, which, as indicated, alleged that petitioner’s acts amounted to a nuisance and damaged their civil property rights. We so held in State ex rel. Atty. Gen. v. Karston, 208 Ark. 703, 187 S. W. 2d 327.

Petitioner’s remedy in the circumstances was by appeal, whether the trial court’s decree punishing petitioner for contempt was right or wrong, it was petitioner’s duty to obey it as long as it remained in force. See Stewart, et al. v. State, 221 Ark. 496, 254 S. W. 2d 55. Also see Carnes v. Butt, Chancellor, 215 Ark. 549, 221 S. W. 2d 416. In the latter case we said: “Where a Court has jurisdiction of the subject matter and the person, it may exercise its apparent power, even though error is committed in doing so, a matter not reached for consideration here. The principle upon which the trial Court in this case proceeded was that facts in support of the plaintiff’s allegations were yet to be developed, and the defendants likewise were entitled to be heard in opposition to the plaintiff’s charges of illegal picketing. But during the interim allowed for the benefit of each, side, the defendants arbitrarily concluded that the Court was wrong in issuing the injunction, hence it could be disobeyed without penalty. The law is otherwise. The proper procedure would have been to obey the order until a higher court passed upon its validity.” Whether petitioner here should be enjoined on final hearing would depend upon the evidence presented upon a trial of the issues. There has been no such trial. In the oral argument before this court, Counsel stated there had been a trial and decree since the present action was filed here, and that an appeal from that decree is now being prosecuted to this court.

Accordingly, the writ is denied.


source: Caselaw Access Project

license: Public Domain

text:
    Tankersley Brothers Industries, Inc. v. City of Fayetteville.
    5-1104
    296 S. W. 2d 412
    Opinion delivered December 17, 1956.

      Hardin, Boston, Hardin and Garner; Dickson $ Putman, and Bay Trammell, for appellant.

      A. D. McAllister, Jr., and Glen Wing, for appellee.
   J. Seaborn Holt, Associate Justice.

This is a suit by the City of Fayetteville, Arkansas, and two property owners to require the removal of a building constructed under a permit from the City, and to enjoin other uses of its property by the defendant alleged to be in violation of zoning ordinances.

Defendant, Tankersley Brothers Industries, Inc., is a wholesale distributor of frozen foods with its principal warehouse and place of business at Fort Smith, Arkansas. In September, 1954, it desired to open a place of business in Fayetteville where it purchased a lot described as the South 180 feet of Lot 5, Block 12, A. L. Trent’s Revised Plot of the City Park Addition to the City of Fayetteville. The lot was in the “E” Commercial Zone and bounded by College Avenue on the East, Pollard Avenue on the West and Prospect Street on the South. The property on both sides of College Avenue is zoned and used essentially for commercial purposes while the property opposite and across the street from defendant on Pollard and Prospect is in the “C” multiple Family Residence District.

On September 13, 1954, defendant filed its application for a building permit for the erection of a “one-story masonry commercial building” 20 ft. x 20 ft. to be located on its lot at 818 Pollard Avenue. The application provided that all work and building set-backs would conform to the ordinances of the City. There was attached to the application a plot plan of the proposed building showing a 10-foot set-back of the building from the East line of Pollard Avenue. An application for certificate of occupancy also- filed with the application stated it was made for a commercial building located in the “E” Commercial Zone and the First Fire Zone and listed the use to which the premises were to be put as “Office and Cold Storage.” A permit duly granted by the City Council was issued September 24, 1954 and construction commenced shortly thereafter was completed early in December 1954, when defendant began business operations.

Defendant’s business consisted primarily of the sale, storage and distribution at wholesale of frozen and refrigerated foods to grocery stores, restaurants and other retail establishments in Fayetteville and other cities and towns in that area. A small amount of sales are made directly to consumers but at wholesale prices. The products are usually transported by truck from defendant’s Fort Smith warehouse to the building in question for storage and distribution in two trucks maintained by defendant at the Fayetteville place of business. The building consisted of a small office and a storage room 12 ft. x 20 ft. in which refrigeration equipment was installed. It was constructed to face Pollard Avenue with the West wall about 5 ft. from the street and a concrete platform or dock 5 ft. x 20 ft. and 1 ft. high running from the front of the building to the street line.

The plaintiffs, Glen Wing and Dr. Fount Richardson, maintain their homes across the street from defendant’s lot, with the Wing residence on Pollard Avenue facing the Northwest corner of defendant’s lot and Dr. Richardson’s residence facing Prospect, but set back a considerable distance from the street. Shortly after defendant commenced operations, they complained to the City Building Inspector about trucks parking in the street and obstructing traffic in the area. On December 10, 1951, the City Inspector wrote a letter to defendant informing it of the complaints and the fact that a zoning ordinance required off-street parking and loading areas and requested immediate compliance with the ordinance. Defendant immediately constructed a driveway from Pollard Avenue on its lot north of its building and between said building and a small rock residence located on the north portion of its lot.

There were further complaints made to the City Inspector about the continued parking of trucks in Pollard Avenue and defendant’s use of the concrete dock adjacent thereto in loading and unloading its products. However, no further complaints were made to defendant until April 11, 1955, when the City Attorney wrote defendant that he had reviewed city building and zoning ordinances at the request of interested property owners and wished to advise defendant of its apparent violations of said ordinances in five particulars: (1) conducting a business not authorized for “E” Commercial District; (2) failing to provide off-street parking and loading facilities; (3) failing to set back the front wall of the building 10 feet from the street; (4) building the concrete dock in violation of the permit; and (5) failing to front the building on College Avenue instead of Pollard Avenue. The letter also suggested that defendant contact the City Inspector regarding an immediate compliance with applicable ordinances otherwise appropriate legal action would be taken.

On April 27, 1955 the City and the two individual property owners filed the instant suit asserting in substance the alleged violations mentioned in the City Attorney’s letter, and that the operation of the business constituted a public and private nuisance. They prayed for a mandatory injunction to remove the building or that defendant lie enjoined from the present use of its property and from using the concrete dock adjacent to Pollard Avenue. The defendant admitted application for and issuance of the permit and construction of the building under supervision of the city’s agents but denied other material allegations of the complaint. It also alleged that its place of business being upon College Avenue was in fact in a business area regardless of zoning ordinances; that the City had full knowledge of the use to which the building was to be put when it issued the permit and plaintiffs should be estopped to question either the manner of construction or use of the building. Trial resulted in a decree denying the prayer for removal of the building but enjoining defendant from operating its wholesale business therein and requiring that off-street loading facilities be provided and used. It was also decreed that defendant front its building upon and conduct operations from the College Avenue side of the building but using Pollard Avenue for ingress and egress in carrying out said operations. Defendant has appealed, and plaintiffs have cross-appealed from that portion of the decree denying a mandatory injunction for removal or relocation of said building.

Defendant paid $7,500 for the lot in question and spent $6,000' in the construction of the building. The construction was observed by the City Inspector who approved the 5 ft. set-back line, because such construction was permissible under the First Fire Zone ordinance which he understood took precedence over the regular zoning ordinance, and counsel for plaintiffs was of the same view at the trial. Plaintiffs stood by without making any further complaint to defendant and without making any complaint relative to the character of business being conducted for four months after defendant commenced operation of its wholesale business.

We have concluded that the trial court was correct in denying appellee’s prayer for removal of the building but was in error in limiting appellant’s operations to the College Avenue side of the building, and, also was in error in denying appellant the right to operate its wholesale business. Appellant applied for and was granted a permit by the City to erect this small building for commercial purposes in a commercial zone, and proceeded to construct such building at a cost of some $6,000, under the supervision of the city’s agents. We find no evidence of any fraud on the part of appellant. It was permitted to operate a wholesale business for more than 4 months after the building was completed without complaint by the City. We hold that the City has stood by too long and is now equitably estopped to have the building removed or to deny appellant the right to operate wholesale. As indicated, while the trial court confined appellant’s operations to the College Avenue side, it, however, allowed appellant access to the building-over Pollard Avenue. We hold, in the circumstances, that appellant, in addition to the privilege to operate on College Avenue, should also be permitted to operate its business in the ample space immediately north of its building, and to this end should be permitted to construct on its driveway north of the building a platform or loading dock. With this right, in addition to the loading and unloading privileges allowed on the College Avenue side, we think that it would make no material difference whether appellant operated retail or wholesale. It seems obvious to us that there would be even less congestion operating wholesale than there would be operating retail.

The rule which we hold applicable here is stated by the text writer in 58 American Jurisprudence, § 184, p. 1040: “On the other hand, there are cases in which a municipality has been regarded as equitably' estopped from revoking a building permit. Indeed, where the permit is properly obtained, the weight of authority is that it may not be revoked arbitrarily, particularly where, on the faith of it, the owner has incurred material expense. Hence, there are a number of cases in which the revocation of a permit on the ground of the violation of a zoning regulation has been regarded as improper. This result has been reached where, in good faith, and in reliance on the permit, money has been expended and substantial steps have been taken, such as the purchase of real estate, the execution of contracts for the purchase of land or other property or for other purposes, the employment of an architect or surveyor, the demolition of buildings, the excavation of land, and the installation of equipment.” Also in 43 Corpus Juris, § 380 p. 349: “As a general rule, a building permit has none of the elements of a contract and may be changed or entirely revoked, even though based on a valuable consideration, if it becomes necessary so to change or revoke it in the exercise of the police power. Applicant’s property is not exempt from the operation of subsequent ordinances and regulations legally enacted by the corporation, as for instance, his property may be subject to an ordinance or regulation extending the fire limits. But when once the proper authorities grant a permit for the erection or alteration of a structure, after applicant has made contracts and incurred liabilities thereon, he acquires a kind of property right on which he is entitled to protection; and under such circumstances it is generally held that the permit cannot be revoked without cause or in the absence of any public necessity for such action . . .” See 62 C. J. S. § 227, p. 521.

The decree, therefore, is modified so as to permit appellant to operate wholesale and to construct a loading and unloading platform immediately north of its building, and as so modified is affirmed.

Justices McFadbin and-MiLLWEE dissent as to modification.


author: Ed. F. McFaddin, Associate Justice.

text:
    Barber v. Jones.
    5-1103
    296 S. W. 2d 404
    Opinion delivered December 17, 1956.

      Barrett, Wheatley, Smith db Deacon, for appellant.

      Frierson, Walker & Snellgrove, for appellee.
   Ed. F. McFaddin, Associate Justice.

The only question on this appeal is whether the jury verdict of $5,500 was excessive. We have concluded that it was not excessive; and a mere per curiam opinion to that effect might be sufficient. But such would neither explain our reasons to the litigants nor aid as a precedent in future cases. Hence this opinion; because an opinion has the two-fold purpose of explaining to the litigants the decision of the Court and becoming a precedent as an aid to the bench and bar.

Appellee, Grady H. Jones, brought action in the Poinsett Circuit Court against appellant, Mrs. W. R. Barber, to recover for personal injuries sustained in an automobile accident, which occurred on December 21, 1955, when a vehicle driven by appellant collided with a vehicle driven by appellee. Appellee alleged that he had sustained a badly wrenched back and that the injury aggravated a pre-existing condition. He alleged physical pain, mental anguish, expenses, loss of earning capacity, and permanent injuries. The case was tried to a jury on May 14, 1956, under instructions given by the Court, to which there were no objections by appellant. In answer to specific inquiries, the jury found that appellee was not negligent and that the negligence of the appellant was the proximate cause of the collision. As aforesaid, the jury verdict for appellee was $5,500; and the only question on this appeal is whether the verdict is excessive.

Dr. Barnett testified that he examined Grady Jones on December 23,1955 and again on May 7,1956. The first examination was about two days after the collision and Jones was at that time in pain. The doctor said:

“A. My diagnosis on the first occasion was myositis acute, due to trauma and it was not mentioned in my impression, but it was mentioned in the general write up that there was a residual of an old ruptured inter vertebral disc that had been treated by surgery in 1947.

Q. Do you know where that disc was located?

A. I have been unable to specifically locate the site of surgery.

Q. What is myositis?

A. It is an inflammatory process of muscle.

Q. Is pain associated with myositis?

A. Yes.

Q. What course of treatment did you prescribe for Mr. Jones?

A. • Some sedation, some exercises and some heat therapy . . .

Q. Did you find from your examination a partial obliteration of the lumbar lordotic curve?

A. Yes.

Q. What would this indicate?

A. Muscle spasm.

Q. Was muscle spasm present when Grady Jones’ back was first examined by you?

A. Yes, to a moderate degree.

Q. Muscle spasm is caused by what?

A. Trauma, infection, are two primary causes.

Q. Basing your answer on your examination of Grady Jones, what would you say caused the muscle spasm in his back?

A. Trauma. ’ ’

Dr. Barnett also testified that Jones had a restriction of motion anteriorally of approximately 50%; and it was the doctor’s opinion that this restriction was caused by the recent trauma. As to the examination of May 7,1956, the doctor stated that Jones was still suffering from myositis and was still suffering pain.

It was admitted that several years prior to the present injury, Jones had suffered an injury that resulted in surgery for a ruptured inter vertebral disc in 1947 at Kennedy General Hospital in Memphis; and it was the appellant’s contention that all of the present pain and suffering that Jones had was due to the original injury and not to the injuries received in the automobile collision here involved. On this point Dr. Barnett testified:

“A. At the time of the first examination I did not feel that his complaints at that time were the results of the old injury. I thought it was a result of the trauma involved two days previously.

Q. You did not see him again until May 7, 1956?

A. That is right.

Q. What was your impression on that occasion?

A. Myositis, chronic and residuals of an old ruptured inter vertebral disc.

Q. I believe you stated on that occasion he complained of numbness?

A. Yes, sir.

Q. On the second occasion?

A. Yes, six'.”

Several witnesses testified as to Jones’ ability to perfox'm full work prior to the 1955 injury here involved. He was employed at the Burton Garage in Marked Tree. Prior to the injury of December 21, 1955, Jones had been able to drive a truck and lift and unload his burdens; and had earned $45.00 a week. When he returned to work after the injuries here involved he was not able to lift any weight and had. to take a cashier’s job at only $25.00 a week; thus having a loss of earnings of $20.00 a week. His employer said that his old job was open for him whenever he could take it, but that Jones was unable to do Ms old work. His employer also testified that Jones was in bad condition and his physical appearance indicated that he was not able to do the work. Other witnesses also testified. One said that Jones had lost weig'ht; that it was a hard job for him to get np and down the steps when he was going to church; and that his physical appearance had deteriorated.

That Jones expended $89.00 in drug and doctor bills; that his earnings had dimimshed $20.00 per week; and that he had experienced pain and suffering, are all undisputed matters. He is 37 years of age. The jury saw him and observed his demeanor on the witness stand. The jurors knew that a normal, healthy man 37 years of age has a reasonable expectancy; and that a man whose earning capacity had been reduced $20.00 a week would lose over $1,000 a year in earning capacity. Here was a man 37 years of age who had lost that amount and had experienced pain and suffering which were continuing at the time of the trial almost six months after the injury. As practical men of common sense — and that is what jurors are supposed to be — the jury returned a verdict for $5,500; and under the evidence offered we cannot say that such verdict is excessive. No new principles of law are involved. This case calls for application of the rule on verdicts reflected in some of our cases like Phillips Motor Co. v. Rouse, 202 Ark. 641, 151 S. W. 2d 994; Mo. Pac. v. Newton, 205 Ark. 353, 168 S. W. 2d 812; Ozan Lbr. Co. v. Tidwell, 210 Ark. 942, 198 S. W. 2d 182; and Rowe v. Dickerson, 226 Ark. 780, 295 S. W. 2d 305.

Affirmed.

       The Court instructed the jury, as to damages, as follows: “You are instructed that if by your findings the plaintiff, Grady Jones, is entitled to recover in this action, you may consider as his recoverable damages such a sum of money as you find from a preponderance of the evidence will reasonably compensate him for his injuries. You may take into consideration any pain and physical and mental suffering undergone by Mr. Jones, either at the time of the collision or afterwards as a result of the injuries sustained in the collision, together with any pain and mental or physical suffering which he may hereafter sustain as a result of said injuries and you may take into consideration the permanency, if any, of any bodily injury which he sustained in the collision. In addition, you may take into consideration any medical expenses or liability that Mr. Jones has incurred or may in the future be reasonably expected to be incurred by him resulting from his injuries, for medical care, hospitalization, x-rays, other expenses of this character, and in addition thereto, any wages, if any, you find from a preponderance of the evidence he has lost as a result of this accident and the probable future loss of wages, if any. If you find that the plaintiff is entitled to recover under the instruction hereto given you, and if you find that the plaintiff had a pre-existing back injury, at the time of this collision, and that the pre-existing condition was inactive or dormant or that plaintiff had fully recovered therefrom and that the plaintiff was otherwise in good physical condition, or if you further find from a preponderance of the evidence that the pre-existing injury was activated or aggravated as a result of the accident in this suit, then you are told that this plaintiff is entitled to recover for the full amount of damages which ensued as a result of this collision, notwithstanding his previous condition. In determining the damages, you are told that in so doing you are to base your estimates upon that which is established by the evidence and that which is reasonably to be inferred therefrom. You should not resort to speculation or mere surmise, but your findings must conform to that which is reasonably determinable from the evidence before you.”


text:
    Horton v. City of Marshall.
    5-1090
    296 S. W. 2d 418
    Opinion delivered December 17, 1956.

      Walker & Villines and Virgil D. Willis, for appellant.

      N. J. Henley, for appellee.
   Ed. F. McFaddin, Associate Justice.

The question here posed is the legal right of the appellant — city marshal ■— to demand a salary of $175.00 per month from the City of Marshall, Arkansas, -which is a city of the second class. We have several recent cases involving the matter of salaries for city marshals in cities of the second class. Some of these cases are: Thomas v. Sitton, 213 Ark. 816, 212 S. W. 2d 710; Conner v. Burnett, 216 Ark. 559, 226 S. W. 2d 984; Sitton v. Burnett, 216 Ark. 574, 226 S. W. 2d 544; Berryville v. Binam, 222 Ark. 962, 264 S. W. 2d 421; and Augusta v. Angelo, 225 Ark. 884, 264 S. W. 2d 321. Reference to these cases gives the background of applicable law.

This case was tried before the Circuit Judge without a jury, and the record contains the Circuit Judge’s opinion, from which we copy pertinent portions:

“The plaintiff, Bunyan Horton, was elected City Marshal of the City of Marshall at the general election in November, 1954, and thereafter was duly qualified and assumed the duties of his office on January 1, 1955. His predecessor in office was Clyde Hensley. On January 20, 1953 the City Council adopted a resolution to pay the said Clyde Hensley the sum of $175.00 per month salary and this salary continued throughout the remainder of his two year term. On January 4, 1955 the City Council adopted a resolution to pay the plaintiff $175.00 per month salary. This salary was paid plaintiff through the month of June, 1955. On June 7, 1955 the City Council adopted a resolution to pay the plaintiff at the rate of $100.00 per month, and this salary was paid through December, 1955. At its December, 1955 meeting the City Council adopted a resolution to discontinue paying the plaintiff any salary from city funds, as of January 1, 1956.

“The plaintiff is asking that the defendants be directed by Writ of Mandamus to pay him the rate of $175.00 per month throughout the entire term of two years for which he was elected. On the other hand the defendants ask that the plaintiff be required to reimburse the City for all amounts paid to him as City Marshal.

“Basically the City Marshal is entitled only to the fees provided by statute. The City is under no legal obligation to pay the City Marshal any salary, but has the authority to do so. Above the statutory fees the Marshal is entitled only to such salary as is legally provided by the Council ... It follows then that the City Council is under no legal obligation to continue paying plaintiff’s salary at the rate of $175.00 a month or any other amount ... It, therefore, follows that the plaintiff’s petition for Writ of Mandamus should be dismissed and that the defendants should take nothing from the plaintiff by reason of their cross-complaint.”

I. The Direct Appeal Of Horton. The opinion of the Circuit Judge clearly states the issues. The appellant, as marshal of a city of the second class, is an officer; and his salary as such marshal could neither be increased nor diminished during his term of office (see § 19-907 Ark. Stats.). The appellant took office on January 1, 1955, and it was not until January 4, 1955 that there was passed the resolution attempting to fix his salary at $175.00 a month. If this was to be a salary as marshal, then it is void under our statute and cases. So the judgment is affirmed on direct appeal.

II. Gross-appeal Of The Gity Of Marshall. This has given us most serious concern. When we hold — as we do — that the statutory fees as city marshal were what the appellant was drawing when he took office, it follows that any money paid him for services as marshal, in excess of such statutory fees was an increase ‘ ‘ during the term” and within the inhibition of § 19-907 Ark. Stats., which says in part: . . the emoluments of no officer whose election or appointment is required in this Act shall be increased or diminished during the term for which he shall have been elected or appointed.”

But the January 4, 1955 resolution of the Council (which resolution is brought in the record by stipulation) shows that appellee, Horton, was paid this $175.00 per month for his services as night watchman, separate and apart from his office as city marshal. The resolution was adopted on January 4, 1955 and said “that they hire him and he will go to work January 5, 1955 at 2:00 P. M. and work until 2:00 A. M. . . .” It is beyond argument that the City Council could not “hire” Horton as city marshal on January 4th because he had already taken office on January 1st; so the act of hiring necessarily related to some other work than that of marshal. Furthermore, the fact that Horton was to work 12-hour shifts as night watchman is shown by the hours designated. In short, the hiring on January 4, 1955 was a month to month hiring; and the City had a right to discharge Horton as night watchman at the close of any month, just as was done. The $175.00 per month salary as night watchman was separate from the statutory emolument as marshal. Horton rendered services as night watchman and can keep the money paid him for such services.

Affirmed on direct appeal and cross-appeal.

Mr. Justice Robinson concurs.

       See § 19-1103 Ark. Stats. and City of Augusta v. Angelo, 225 Ark. 884, 286 S. W. 2d 321.

       Both in Barnes v. Williams, 53 Ark. 205, 13 S. W. 845, and Thomas v. Sitton, 213 Ark. 816, 212 S. W. 2d 710, we held that this statute was applicable to city officials; but in neither of those cases was there the question of the right of the city to recover amounts previously and erroneously paid.


author: Minor W. Millwee, Associate Justice.

text:
    Holbert v. Slaughter.
    5-1117
    296 S. W. 2d 402
    Opinion delivered December 17, 1956.

      J. F. Wallace and George E. Pilte, for appellant.

      L. A. Hardin and J. M. Smith, for appellee.
   Minor W. Millwee, Associate Justice.

This is an action to recover damages for personal injuries sustained by appellee, Horace Slaughter, while working on a rice farm belonging to appellants, F. O. Holbert and W. S. Holbert, and being managed by appellant, Max B. Files. There was a verdict and judgment in appellee’s favor for $2,000.

The only contention for reversal is that the evidence is insufficient to sustain the jury’s findings that appellee was an inexperienced person and that appellant, Max B. Files, negligently instructed appellee to get into the grain cart in which he was injured. In determining this issue we must, of course, view the evidence in the light most favorable to appellee.

The only persons present at the time of the incident were appellee and the appellant, Max B. Files. According to the testimony of appellee he was hired by appellants on September 29, 1954, to assist in harvesting the rice crop on the Holbert Farm. The next day appellee and Files began harvesting the rice about 1 p. m. Files was operating the combine and appellee was driving a tractor pulling a grain cart into which the rice was being conveyed from the combine. They had worked two or three hours when a rain cloud came up and the grain cart was pulled to the side of a truck for the purpose of unloading the rice from the cart to the truck before it rained. This operation is performed by means of a power take-off running from the drive shaft of the tractor to an open auger at the bottom of the grain cart which lifts and carries the rice to the truck.

Upon reaching the truck Files threw the power takeoff into gear and proceeded to get into the truck to shovel the rice back as it came from the grain cart. It had commenced raining which caused the rice to stick to the sides of the large hopper of the grain cart and prevented it from feeding into the auger at the bottom of the cart. Files told appellee to get into the cart and try to get the rice out. Appellee got into the cart and held to the side with his hands as he tried to push the wet rice with his feet. As he did so, he lost his handhold and slipped with one foot going into the auger which was covered with rice. His foot was so badly mangled that it had to be amputated.

Appellee was 20 years of age at the time of his injury. He had reached the 9th grade in school and served in the U. S. Air Force for a time. While he was reared on a farm and had previously operated tractors and other farm implements, he testified he had never driven a tractor with a grain cart attached to it before and had never previously worked with a grain cart and had not seen inside the cart in question; and that he had never been warned by Files, or anyone else, as to the danger of getting into a grain cart. Files denied that he ordered appellee to get into the cart and stated he had warned him of the danger of doing so. He also stated the first time he knew an accident had occurred was when he scooped up two of appellee’s toes and the bottom of his boot. Other witnesses testified they had previously seen appellee driving a tractor with a grain cart attached to it.

In many cases we have held that where an employee, by reason of his youth or inexperience, does not fully realize or appreciate the danger of a particular service he is directed to perform, it is the employer’s duty to give proper instructions and to warn him of patent as well as latent dangers; and that before the inexperienced servant can be presumed to have realized the danger and assumed the risk it must be shown that he was instructed and warned of it. Arkansas Midland Ry. Co. v. Worden, 90 Ark. 407, 119 S. W. 828; Ideal Cement Company v. Hardwick, 208 Ark. 163, 185 S. W. 2d 266. Where, as here, there is a sharp dispute in the testimony on such issues, the questions of whether appellee was an inexperienced servant and appreciated the danger of his employment as well as the questions of whether Files negligently directed him to get into the grain cart, or had warned him against it, were for the jury. Southern Cotton Oil Company v. Spotts, 77 Ark. 458, 92 S. W. 249; A. J. Neimeyer Lbr. Co. v. Brame, 136 Ark. 564, 207 S. W. 35; Chickasaw Cooperage Co. v. McGraw, 144 Ark. 138, 221 S. W. 1057; Woodley Petroleum Co. v. Willis, 172 Ark. 671, 290 S. W. 953; Pekin Wood Products Co. v. Mason, 185 Ark. 166, 46 S. W. 2d 798. The evidence adduced by appellee is sufficient to sustain the jury’s determination of these questions in his favor under instructions which are not questioned, and we find no merit in appellants’ assertion that appellee’s testimony is contrary to the physical facts, or that it is otherwise insufficient to sustain the verdict.

Affirmed.


text:
    Bryant Stave & Heading Company v. White.
    5-1095
    296 S. W. 2d 436
    Opinion delivered December 17, 1956.

      Shaw, Jones $ Shaw, for appellant.

      Mark E. Woolsey, for appellee.
   Minor W. Millwee, Associate Justice.

This is an appeal from a judgment of the Franklin Circuit Court affirming an award by the Arkansas Worknjen’s Compensation Commission in favor of the appellee, Herman White, for an “accidental injury” allegedly sustained by him while employed by the appellant, Bryant Stave & Heading Company, at its plant in Ozark, Arkansas.

The facts are undisputed. Appellee is 44 years old and has been employed in sawmill and other timber work for several years. In June, 1951 he was working for a lumber company when he sustained a back injury diagnosed as a ruptured intervertebral disc for which he was awarded a ten percent permanent-partial disability to the body as a whole by order of the Commission in December, 1951. He recovered sufficiently to resume work shortly thereafter and his back had given him no further trouble when he began work for appellant, Bryant Stave & Heading Co., on March 20, 1954. In the meantime he had worked for another company for about one and one-half years. He worked continuously for the appellant until March 30, 1955, with the exception of a brief period when the mill was closed down.

During his entire employment with the appellant, appellee was engaged in loading stave bolts, with the aid of a helper, by lifting them upon wagons about three to three and one-half feet high. The bolts were from white oak timber about 38 inches long and weighed from 75 to 250 pounds each. In loading the bolts it was necessary that the two men lift some of them higher than their heads. Appellee had been assisting in loading bolts in the usual manner on March 30, 1955, until about 1:30 P. M. when he noticed a pain in his right side, leg and back. He first thought it was merely a “catch” in his back but the pain persisted and increased in intensity until he reported it to his foreman. The next morning he could hardly get out of bed and his doctor placed him in the hospital where he was “put in traction” and remained 12 days.

The doctor diagnosed appellee’s injury as a narrowing of the intervertebral disc between the fourth and fifth lumber vertebrae and as an aggravation of the pre-existing injury of the same nature received in 1951. He also testified that such aggravation of the pre-existing injury was caused by appellee’s work in lifting and loading the stave bolts. Appellee experienced no external, fortuitous accident such as falling, stumbling or dropping a bolt on the day in question and, as far as he could tell, there was no more unusual strain than on other days.

On these undisputed facts the Commission found that appellee’s pre-existing injury was aggravated by his performing the usual duties in his customary manner; and that appellee thereby suffered an accidental injury to his back which arose out of and in the course of his employment and resulted in temporary total disability for an indeterminate period. In short, that appellee suffered a compensable accidental injury to his back while performing the usual duties of his employment in his customary maimer -without any unusual strain or other external fortuitous happening.

For reversal of the circuit court judgment affirming the award made by the Commission, appellant earnestly insists there can be no accidental injury in a workmen’s compensation case in the absence of a showing of unusual exertion, strain or other external fortuitous happening which causes or brings about the injury. Now it is settled by our cases that the aggravation of a preexisting physical condition is compensable if occasioned by accidental injury. Murch-Jarvis Co. v. Townsend, 209 Ark. 956, 193 S. W. 2d 310. So the sole issue here is whether a disabling back strain suffered by a claimant while doing his usual work in the customary manner, and without any external fortuitous happening, constitutes a compensable “accidental injury” within the meaning of the Arkansas Workmen’s Compensation Law (Ark. Stats., Cum. Suppl., Secs. 81-1301 to 81-1349).

Two sections of our statute are pertinent to the present issue.' Sec. 81-1302 (d) reads: “‘Injury’ means only accidental injury arising out of and in the course of employment, including occupational diseases as set out in Section 14 (Sec. 81-1314) and occupational infections arising out of and in the course of employment.” Sec. 81-1305 provides in part: “Every employer shall secure compensation to his employees and pay or provide compensation for their disability or death from injury arising out of and in the course of employment, without regard to fault as a cause for such injury; provided that there shall be no liability for compensation under this Act where the injury or death from injury was solely occasioned by intoxication of the injured employee or by willful intention of the injured employee to bring about the injury or death of himself or another.” These provisions are precisely the same as those set out in the original Act 139 of 1939.

In reference to the term “accidental injury” it seems apparent that the adjective “accidental” refers to and modifies the noun “injury,” and does not refer to the cause of the injury. There is no statutory requirement that the cause of the injury itself must have also been an accident. What the statute says is that the injury itself must have been accidental, that is, unforeseen and unexpected. When the two sections are read together, it is apparent that “accidental injury” means every injury to an employee arising out of and in the course of his employment except those injuries caused by his intoxication or by his willful intention to bring about the injury or death of himself or another.

The issue presented here has been the source of much controversy and litigation in the courts of this country as well as those in England where compensation acts originated. Before considering our own cases, we deem it appropriate to review these' authorities. The terms “accidental injury” or “injury by accident” appear-in most compensation acts. The English courts have given the term a liberal construction and have consistently held that an employee sustains an injury “by accident” if either the cause or the result of the injury is unexpected, unforeseen or unintended. Fenton v. Thorley Co., Ltd., A. C. 443 (House of Lords); Clover, Clayton & Co. v. Hughes, A. C. 242, 3 B. W. C. C. 275. In other words, the English courts hold that an unexpected result from usual or customary exertion, even though there is no unexpected or fortuitous cause, constitutes a compensable accident.

A very substantial majority of the courts of this country have adopted and followed the English rule and hold that an injury is accidental where either the cause or the result is unexpected or accidental, although the work being done is usual or ordinary. In Schneider, Workmen’s Compensation Text, Perm. Ed., Sec. 1446, it is said:£ £ It is held in some states that where the ordinary exertion or straining of the employee’s usual work causes the unexpected and disabling event or injury or accelerates or hastens its consummation, that in itself constitutes a compensable accident because the injury and disability is due to the employment.” The author lists 21 states, including Arkansas, as supporting this rule and then states: “In other states disability or injury resulting from the ordinary and usual strain or exertion of the employment, whether great or small, which may accelerate an existing infirmity does not constitute a compensable accident, unless there was an accident in the cause, or an abnormal strain or exertion.” Eleven states are then listed as following the minority view.

The foregoing text statement was published in 1946. An analysis of many later cases cited in the 1956 Pocket Supplement to Sec. 1446 shows that several additional states have since adopted the majority view, while a few of those listed as supporting the minority rule have done an about face on the question. For instance, Arizona was originally listed as supporting the minority rule under the decision in Pierce v. Phelps Dodge Corp., 42 Ariz. 436, 26 P. 2d 1017, which was overruled in 1944 in In re Mitchell, 61 Ariz. 436, 150 P. 2d 355. Also North Carolina listed as following the minority rule apparently adopted the usual-strain and unexpected result theories in Smith v. Cabarrus Creamery Co., 217 N. C. 468, 8 S. E. 2d 231.

In Larson, Workmen’s Compensation Law, Sec. 38.00 the various holdings are summarized as follows: “The ‘by accident’ requirement is now deemed satisfied in most jurisdictions either if the cause was of an accidental character or if the effect was the unexpected result of routine performance of the claimant’s duties. Accordingly, if the strain of claimant’s usual exertions cause collapse from heart weakness, back weakness, hernia and the like, the injury is held accidental. A very substantial minority of jurisdictions require a showing that the exertion was in some way unusual, or make other reservations, but this line of decision causes difficulty because of the constant necessity of drawing distinctions between usual and unusual strains.”

At Sec. 38.20 of the same work the author says: “A clear majority of jurisdictions now hold that when usual exertion leads to something actually breaking, herniating, or letting go, with an obvious sudden mechanical or structural change in the body, the injury is accidental. So we find an overwhelming majority compensating for hernia, and a substantial majority compensating for cerebral hemorrhage, arterial or blood-vessel rupture, 'ruptured aneurism, apoplexy, ruptured appendix, herniated intervertebral disc, stomach rupture, dislocated kidney, dislocated'cervical cord, and detached retina, even when the exertion or conditions producing the change were not out of line with the ordinary duties of the job.” See also, 58 Am. Jur., Workmen’s Compensation, Secs. 195 and 255; Horovitz on Workmen’s Compensation 88; 9 N. A. C. C. A. 43. A few of the leading cases supporting the majority rule are: Derby v. Swift & Co., 188 Va. 336, 49 S. E. 2d 417; Gray v. Employers Mut. Liability Ins. Co., (Fla.) 64 So. 2d 650; Walter v. Hagianis, 97 N. H. 314, 87 A. 2d 154; Gray’s Hatchery & Poultry Farms v. Stevens, 46 Del. 191, 81 A. 2d 322; Liberty Glass Co. v. Guinn, (Okla.), 265 P. 2d 493; Brown’s Case, 123 Me. 424, 123 A. 421, 60 A. L. R. 1293; Purity Biscuit Co. v. Industrial Commission, 115 Utah 1, 201 P. 2d 961.

We now turn to our own cases. In Harding Glass Co. v. Albertson, 208 Ark. 866, 187 S. W. 2d 961, a glass cutter suffered a heat prostration from ordinary exposure which aggravated a previous heart condition. In accepting the majority rule we said: “While appellants cite authorities holding to the contrary, we think the better rule, and the one supported by the great weight of authority is that a heat prostration which resulted as here, and was sustained by a workman or employee, while engaged in the employment, and which grew out of the employment, whether due to unusual or extraordinary conditions or not, is deemed an accidental injury and compensable, and we so hold.” In that case we also approved the following statement by Judge Parker in Baltimore & O. R. Co. v. Clark, 59 Fed. 2d 595: “ ‘The statute provides that the ‘term “injury” means accidental injury or death arising out of and in the course of employment.’ 33 U. S. C. A., § 902. It says nothing about unusual or extraordinary conditions; and there is no reasonable basis for reading such words into the statute . . .”

This statement from Schneider, Workmen’s Compensation Text, Sec. 1328, was likewise quoted with approval in the Albertson case: “The majority of the American courts follow the English rule as set out in the case of Clover, Clayton & Co. v. Hughes (1910), A. C. 242: ‘An accident arises out of the employment when the required exertion producing the accident is too great for the man undertaking the work, whatever the degree of exertion or condition of health.’ ” Other cases to the same general effect are: McGregor & Pickett v. Arrington, 206 Ark. 921, 175 S. W. 2d 210; Sturgis Bros. v. Mays, 208 Ark. 1017, 188 S. W. 2d 629; Batesville White Lime Co. v. Bell, 212 Ark. 23, 205 S. W. 2d 31; Frank Lyon Co. v. Scott, 215 Ark. 274, 220 S. W. 2d 128; Quality Excelsior Coal Co. v. Maestri, 215 Ark. 501, 221 S. W. 2d 38; Tri-States Construction Co. v. Worthen, 224 Ark. 418, 274 S. W. 2d 352.

While counsel for appellants concede the foregoing cases indicate our past adherence to the majority rule, they earnestly insist they have all in effect been overruled by some of our recent decisions in which we have affirmed the commission’s denial of compensation because there was no evidence of a fortuitous event, overexertion or unusual work load. Appellants rely particularly on Baker v. Slaughter, 220 Ark. 325, 248 S. W. 2d 106; Farmer v. L. H. Knight Co., 220 Ark. 333, 248 S. W. 2d 111; Stallings Bros. Feed Mill v. Stovall, 221 Ark. 541, 254 S. W. 2d 460; and Duke v. Pekin Wood Products Co., 223 Ark. 182, 264 S. W. 2d 834. It is true that the only instances in which the concept of an increased work load, or unusual exertion, has been employed by this court in reversing the Commission’s findings were when that body had refused to award compensation. However, it cannot be denied that we have also upheld the Commission’s denial of claims for compensation in cases that cannot be easily distinguished from this one on the facts. That confusion does exist is readily apparent from the majority, concurring and dissenting opinions in the Farmer and Baker cases, supra.

We agree that litigants, lawyers and members of the Commission are entitled to a definite and unequivocal settlement of the legal question here posed. In undertaking to do so, we see no valid reason for not aligning-Arkansas with the decided weight of authority on the subject by adhering to our holding in Albertson v. Harding Gas Co., supra, and similar cases. In our opinion the majority rule is sound and supported by the better reasoned cases. As Justice Wade pointed out in Purity Biscuit Co. v. Industrial Commission, supra: “If an unexpected internal failure is an accidental injury, such failure caused by ordinary exertion is as much accidental as where caused by overexertion. It is even more clear that the internal breakdown is accidental, in that it is not expected, unintentional and undesigned, where it is caused by ordinary exertion than where it is caused by overexertion, because we cannot as readily expect that ordinary exertion will cause an internal failure as we can that overexertion will produce that result . . .”

“The fact that overexertion is more apt to cause an internal failure than is ordinary exertion is no reason why we should require proof of overexertion to sustain an award. To make such a requirement would be to change the substantive law because in some cases the proof may not be sufficient. In many cases the proof that the exertion did cause the injury might be conclusive but under such a rule the applicant could not recover because he did not show overexertion. In a borderline case where the other proof is the same it might well be that proof of ordinary exertion would not be sufficient to sustain a finding that the exertion caused the injury, where if overexertion were shown the proof might be sufficient. But there is nothing in the statute which would justify a holding that an injury is compensable where overexertion is shown but is not compensable where only ordinary exertion is shown, provided that in both cases it is shown that the exertion causes the injury.”

If we should adopt a requirement that the work or strain be unusual or extraordinary we would reject the ■construction put on our statute in the jurisdiction from which it was borrowed and read into the law a requirement which greatly increases litigation to determine the -elusory difference between usual and unusual strain or ■exertion. We would also, in effect, recast upon the disabled employee the burden of the old common law defense of assumed risk in specific violation of the statute (See. 81-1304). This result is illogical and contrary to the spirit and purpose of the compensation law and the liberal construction that we have repeatedly resolved to give it. Birchett v. Tuf-Nut Garment Mfg. Co., 205 Ark. 483, 169 S. W. 2d 574; 58 Am. Jur., Workmen’s Compensation, Sec. 2.

Notwithstanding anything we may have said in prior cases, we hold that an accidental injury arises out of the employment when the required exertion producing the injury is too great for the person undertaking the work, whatever the degree of exertion or the condition of his health, provided the exertion is either the sole or a contributing cause of the injury. In short, that an injury is accidental when either the cause or result is unexpected or accidental, although the work being done is usual or ordinary. The judgment of the circuit court affirming the award is accordingly affirmed.


author: George Rose Smith, J.

text:
    Herron v. Arkansas Wholesale Grocers Association, Inc.
    5-1102
    296 S. W. 2d 409
    Opinion delivered December 17, 1956.

      Tom Gentry, Attorney General; James L. Sloan, Assistant Attorney General, for appellant.

      Talley <& Owen and William L. Blair, for appellee.
   George Rose Smith, J.

This is a suit by the wholesale grocers’ association to enjoin the director of the State Board of Health from enforcing a regulation which prohibits the sale of artificially colored potatoes. The chancellor held that the applicable statute is too indefinite to be enforceable; he also found that artificially colored potatoes are not poisonous or otherwise injurious to health. Upon these findings the court enjoined the appellant from interfering with the sale of colored waxed Irish potatoes in Arkansas.

We find no merit in the contention that the statute is too vague to he enforced. The section pertinent to this case was taken verbatim from the Federal Food, Drug, and Cosmetic Act. 21 U. S. C. A. § 342. It provides that a food shall be deemed to be adulterated “if any substance has been added thereto ... so as to .. . make it appear better or of greater value than it is.” Ark. Stats. 1947, § 82-1110 (b, 4). A statute such as this one must necessarily be phrased in rather general language, as it would manifestly be impossible for the legislature to enumerate with precision every possible instance of adulteration. Having clearly defined the types of adulteration that are forbidden, the legislature could properly authorize the Board of Health to adopt regulations within the scope of the statute. State ex rel. Hale v. Lawson, 212 Ark. 233, 205 S. W. 2d 204. The regulation now in question is brief and to the point: “(1) No artificially colored potatoes shall be sold, offered for sale, or stored for sale within the State of Arkansas . . . (3) The application of non-toxic polishing or coating materials to potatoes when such use does not conceal damage or inferiority, is not a matter of objection, providing such polishing or coating materials do not contain coloring agents.”

The principal question in the case is whether the above regulation is an appropriate means of enforcing the statute; that is, does the application of a red wax coating to Irish potatoes make them appear to be better or of greater value than they really are? It is immaterial that the coating is not poisonous or injurious to health, for adulteration of that nature is prohibited elsewhere in the statute. Ark. Stats., § 82-1110 (a). It is settled by decisions under the federal law that the provision we are now considering is intended to prevent ‘ ‘ economic adulteration,” which makes a product, although not deleterious, appear to be better or more valuable than is actually the case. United States v. Two Bags, Each Containing 110 Pounds, Poppy Seeds, C. C. A. 6, 147 F. 2d 123; United States v. 36 Drums of Pop’n Oil, C. C. A. 5, 164. F. 2d 250. Nor does it matter that the red wax is shown to be beneficial, in protecting the potatoes against deterioration, for the same benefit can be attained by the nse of nncolored wax, to which the Board of Health has no objection.

The great preponderance of the proof in this case shows that the coating or red wax is intended to, and does, make Irish potatoes appear to be better and of greater value than they are. It is shown that a freshly dng potato is reddish in color and contains about ninety milligrams of Vitamin 0 (ascorbic acid) to the pound. As the potato ages it tends to lose its color, and its vitamin content diminishes. According to the undisputed testimony, a new potato has both a greater monetary value and a greater food value than an old potato. The coating of red wax artificially preserves the original color of the potato and thus gives an old potato the appearance of a new one. It is true that experts in the produce business are able to detect the presence of artificial coloring, but the record shows clearly that the practice deceives a substantial part of the buying public. On the evidence before us there can be no doubt that the artificial coloring of potatoes is an adulteration of the type that the statute is intended to prohibit.

Other arguments made by the appellee need not detain us long. One of its witnesses expressed the fear that potatoes treated with uncolored wax might be hard to obtain, as the use of artificial coloring is widespread. Apart from the fact that expediency does not create a right to violate the law, the appellant’s proof effectively-refutes the suggestion that unadulterated potatoes are unavailable. There is testimony that various grocers in Arkansas have experienced no difficulty in complying with the regulation now complained of. It is also shown that the sale of artificially colored potatoes is prohibited in several other states, including California, Kansas, and Pennsylvania. It may safely be assumed that the ordinary processes of supply and demand have not left the inhabitants of those states without potatoes that meet the requirements of their laws.

It is also said that there is no federal regulation prohibiting the transportation of artificially colored potatoes in interstate commerce; the Federal Food and Drug Administration seems to have devoted its principal attention to matters directly involving the public health. The lack of a federal regulation, however, does not prevent the state board from acting in the matter. Although the Board of Health is authorized to make its regulations conform to those issued by the federal agency, Ark. Stats., § 82-1119, the state statute does not indicate a legislative intention to confine the Board of Health to the exact field covered by the federal directives.

Reversed and dismissed.


text:
    Stokes v. Stokes.
    5-1109
    296 S. W. 2d 399
    Opinion delivered December 17, 1956.

      A. F. Barham and Henry J. 8%oift, for appellant.

      Claude F. Cooper, for appellee.
   George Rose Smith, J.

This is an appeal from a decree granting the appellee a divorce, for personal indignities. When the plaintiff rested her case the defendant filed a demurrer to the evidence, which the court overruled. Stokes elected to stand on his demurrer and introduced no proof. He now contends that the plaintiff’s testimony does not establish her ground for divorce and that it is not sufficiently corroborated.

In passing upon a demurrer to the evidence the chancellor must give the plaintiff’s proof its strongest probative force and should sustain the demurrer only when the testimony would require a directed verdict for the defendant if the case were being tried before a jury. Werbe v. Holt, 217 Ark. 198, 299 S. W. 2d 225. It follows that if the defendant elects to stand on his demurrer the decree will be affirmed if supported by any substantial evidence. Phillips v. Tramble, 224 Ark. 359, 273 S. W. 2d 400. In the case at bar we cannot say that there is no substantial evidence to sustain the decree.

The parties were married in 1951 and separated three years later. The plaintiff testified that her husband would get drunk about every two weeks and would curse and abuse her. On one occasion he threatened her life with a pistol; on another he threatened to cut her with a pocket knife. The plaintiff’s health was so affected by her husband’s treatment that she had to consult a physician. In addition to the matters mentioned, the plaintiff says that her husband neglected her and admitted having been out frequently with other women. This testimony, which we have stated in the light most favorable to the appellee, is more than sufficient to justify the chancellor in granting a divorce on the ground of indignities.

Inasmuch as corroboration is required for the purpose of preventing collusive divorce suits, the rule is that the corroboration may be relatively slight when, as here, there is plainly no collusion involved. Morgan v. Morgan, 202 Ark. 76, 148 S. W. 2d 1078. In the court below a police officer testified that the plaintiff, upset and crying, had appealed to him several times in connection with her marital troubles. A woman who stayed in the couple’s home for almost two months says that Stokes refused to talk to his wife and indicated by his attitude that he hated her. When the record is considered as a whole we think the corroborative testimony meets the standard fixed by our previous decisions.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Parker v. Hadley.
    5-1017
    296 S. W. 2d 391
    Opinion delivered December 17, 1956.

      Mahony <& Yocum, for appellant.

      Spencer S Spencer; Lawrence. S. Morgan, for appellee.
   Paul Ward, Associate Justice.

The only question presented by this appeal is whether the chancellor’s finding is contrary to a preponderance of the evidence.

Alfred Hadley died several years ago seized of approximately 500 acres of land in Union County, leaving-surviving him as his only heirs the following- named three children: Alabama Parker, a daughter, and C. B. H. Hadley, a son (appellants herein); and C. Minor Hadley, a son. This, of course, gave each of the children of Alfred Hadley an undivided one-third interest in the above mentioned land.

C. Minor Hadley died in 1949, and later appellee, Lola Hadley, claiming to be the sole surviving heir of C. Minor Hadley, brought a partition suit in the chancery court against appellants asking for her share of the rents and profits accruing from said land, and that the land be divided in kind or that it be sold and the proceeds be divided equally among the three of them. Appellants’ answer denied that appellee was the daughter of C. Minor Hadley. The trial court held in favor ■ of appellee, hence this appeal.

Appellee was the illegitimate daughter of C. Minor Hadley who later, on February 22, 1947, married appellee’s mother. For a reversal appellants rely on only one Point which they state as follows: “Lola Hadley was not recognized by C. Minor Hadley as his child.” To state the question properly and in accordance with the arguments made by appellant, we think the Point should be stated in this way: Lola Hadley was not recognized by C. Minor Hadley as his child after his marriage to her mother.

The pertinent statute involved is Ark. Stats. § 61-103 which reads as follows:

“If a man have by a woman a child or children and afterwards intermarry with her, and shall recognize such children to be his, they shall be deemed and considered as legitimate.”

Both appellants and appellee correctly agree that there must be recognition after the marriage.

Also appellants and appellee agree that the statute requires proof of three things, to-wit: (1) The actual parentage of the putative father; (2) The putative father’s marriage to the mother of the illegitimate child, and; (3) Recognition by the putative father, after the marriage, of the child as his. Appellants do not question the proof to establish (1 & 2) above.

After a careful examination of the record we have concluded that the weight of the evidence sustains the chancellor’s finding that C. Minor Hadley, after his marriage to appellee’s mother, recognized her as his child. The only testimony introduced by appellants was that given by themselves, and it contains no positive evidence that appellee was not so recognized by C. Minor Hadley. On the other hand we have this testimony offered by numerous witnesses on behalf of appellee to the effect that O. Minor Hadley did, after his marriage to appellee’s mother, recognize her as his daughter: Lizzie Roy, age 81, testified that she visited in the home of C. Minor Hadley after his marriage to appellee’s mother, and that he told her he was going to try to get his girl (referring to appellee) home and help her; Mitchell Adams testified that he talked with C. Minor Hadley after his marriage to appellee’s mother and that on one occasion Hadley stated that he was Lola’s daddy and that he was going to send after her, and wanted to give her something; Arbella Twine stated that she talked with C. Minor Hadley, after the marriage, and that he said Lola (appellee) was his daughter and he wanted to make provision for her to have something after his death, and; Appellee testified that she received letters from C. Minor Hadley, after the marriage, addressed to her as “Dear Daughter,” and signed “your father.”

In view of the above we are forced to conclude that the finding of the chancellor was supported by the weight of the testimony.

Affirmed.


text:
    White v. Maddux, Special Admr.
    5-1106
    296 S. W. 2d 679
    Opinion delivered December 17, 1956.

      Jeta Taylor and John J. Cravens, for appellant.

      Dobbs, Pryor & Dobbs, for appellee.
   Paul Ward, Associate Justice.

On April 25, 1956 appellant, Billy Price White, and his wife, Patsy White, were riding in an automobile which collided with another automobile being driven by Robert J. Kilgore. As a result of this collision Robert J. Kilgore and Patsy White were killed, the latter instantly, and appellant was injured.

Appellant filed a complaint against Prentice Maddux, Special Administrator of the estate of Robert J. Kilgore, deceased, containing two separate counts. In the first count appellant asked for judgment for personal injuries suffered by him, and in the second count he asked for $50,000 damages, as the surviving husband and next of kin of his wife Patsy White, for the loss of companionship, services, and consortium of his wife, there being no pain and suffering.

Count No. 1 was heard by the court sitting as a jury, and appellant was awarded judgment from which there is no appeal. Appellee filed a demurrer to Count No. 2 which was sustained by the court, forming the basis of this appeal.

It is the contention of appellant that the court erred in sustaining the demurrer, and that Count No. 2 states a good cause of action under the provisions of Ark. Stats. (Suppl.) § 27-905 which read as follows:

“When a wife be killed in this State by the wrongful act, neglect or default of any person, company or corporation, the husband may have a cause of action therefor against such wrongdoer, and be entitled to damages for his mental anguish and for the services and companionship of his said wife in whatever amount the jury trying the cause may consider he is entitled to; provided suit be brought within two (2) years from the time said cause of action occurs, which action may be brought by and in the name of the husband.”

The statute above copied is Section 1 of Act 39 of the Acts of 1949 and reads the same as Section 1 of Act 84 of the Acts of 1899 with the exception that it adds the words “for mental anguish and” after the word “damages” in the original Act.

On the other hand it is the contention of appellee that the cause of action set forth in Count No. 2, under Ark. Stats. § 27-905, does not survive against the administrator of Kilgore. The above contention of appellee, speaking generally, is based on the following: (a) Under the common law, a right of action against a tort feasor (Robert J. Kilgore) expires with the death of the tort feasor, and cannot be revived against the administrator of his estate, and; (b) The above common law rule is still in force in this state, and it has not been changed by statute respecting the cause of action under consideration.

(a) There appears to be agreement between the parties that at common law a right of action based on a tort dies with the tort feasor. This rule was definitely stated by this court in Davis v. Nichols, 54 Ark. 358, 15 S. W. 880. In speaking of the Davis case appellant says: ‘ ‘ The court based its decision upon the old common law rule that the tort dies with the tort feasor . . .”

(b) So, the only question for decision is: Has the common rule above stated been changed in this state by statute in the kind of case now under consideration?

We do not agree with appellant’s statement “that Section 27-905 Ark. Stats. Suppl. clearly and in plain language gives him a right to a cause of action against Kilgore’s estate.” The simple answer to the above statement by appellant is that there is nothing in said Section 27-905 which in any way changes the common law relative to the survivorship of a tort action against the administrator of the deceased tort feasor. What the said statute does do is give the husband a cause of action against a tort feasor for the services and companionship of his wife, but there is nothing in the statute repealing the common law which says that such a cause of action dies with the death of the tort feasor.

The issue in the case under consideration has been resolved against appellant by the opinion in the Davis case, supra, and it would serve no useful purpose here to reiterate and reconstruct the conclusion there reached. The only difference between the two cases is that, in the Davis case, the action was based on Ark. Stats. § 27-901, while, here, the action is based on § 27-905. There is no difference between the two sections as they bear on the legal principle involved, viz: The survival of an action against the administrator of a tort feasor. In the Davis case, brought under Ark. Stats. § 27-901, it was held there was no survival against the administrator, so, for the same reasons relied on there, we are forced to the same conclusion in this case where the action is based on Ark. Stats. § 27-905.

Ark. Stats. § 27-901 would sustain appellant’s action here against the administrator except for one thing: Said section applies to “wrongs done to the person or property” of another. However, as explained in the Davis case and other cases cited therein, a husband’s loss of the services and companionship of his wife does not amount to wrongs done to his person or property.

The final appeal appellant makes is that we overrule the Davis case, supra. A similar request was made and rejected in Billingsley v. St. Louis, Iron Mountain and Southern Railway Company, 84 Ark. 617, 107 S. W. 173, and we are furnished no good reason for overruling it at this time. This is peculiarly a matter that should be addressed to the legislature and not the courts.

The common law forms a substantial and an important portion of the laws of this state. A small part of that common law — that a tort action dies with the tort feasor — has been adopted by the legislature as the law of this state. Should we, by Judicial fiat, abolish that law, it would amount to more than a mere reversal of a former opinion.,, It would amount to an effort of this court to repeal an act of the legislature.

There is, however, some indication that the legislature does not desire to change the law. After this court rendered its decision in the Davis case, construing § 27-904 as it did, the legislature thereafter (in 1899) passed § 27-905 without correcting the (alleged) defect in § 27-904 which the Davis opinion so clearly pointed out.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    St. Francis Drainage District v. Austin.
    5-1082
    296 S. W. 2d 668
    Opinion delivered December 17, 1956.
    [Rehearing denied January 14, 1957.]

      Cecil Grooms and Kirsch, Cathey & Brown, for appellant.

      Oscar Fendler and J. W. Steinsiek, for appellee.
   Sam Robinson, Associate Justice.

This is a suit by appellees for damages to crops caused by the appellant, St. Francis Drainage District, using poison known as 2,4-D to kill willows growing on the drainage ditch right-of-way. Some of the poison drifted through the air and came in contact with some of the crops being grown by the appellees on land adjoining the drainage ditch. The cause was tried to a jury and there were verdicts total-ling about $15,000 for appellees. The Drainage District has appealed.

The cause was submitted to the jury on the theory of whether the farmers, appellees, were entitled to recover under Article 2, Section 22, of the Constitution of Arkansas. The court instructed the jury as follows:

“Gentlemen of the jury, the plaintiffs, Austin, Reese, Riggs, Brown, Wells, Kitchen Farms Company, and Barnes bring this cause of action against the defendant St. Francis Drainage District to recover compensation for crops which they allege were taken or damaged for public use by the defendant Drainage District. The defendant Drainage District denies that said property was taken or damaged for public use within the meaning of the law applicable to this type of proceedings.

“You are instructed that Section 22, Article 2, of the Constitution of Arkansas reads: £ The right of property is before and higher than any constitutional sanction ; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.’ You are further instructed that the St. Francis Drainage District is legally required to maintain the drainage ditches in its drainage system and the law has given this district the right to take private property, if necessary, to perform maintenance work upon its ditches. Therefore, if you find from a preponderance of the evidence in this case that the action of the St. Francis Drainage District was necessary and proper and if you further find that the Drainage District or its employees in doing this maintenance work acted without negligence, and that while so acting or maintaining said ditches, it was necessary to actually take or damage property belonging to the plaintiffs for public use, then your verdict will be for the plaintiffs.

“On the other hand, you are told that a drainage district cannot be held liable for the damage caused by the negligence of its agents and employees. Therefore, if you find that the damage, if any, sued for by the plaintiffs resulted from the negligence of the agents or employees of the Drainage District, you are instructed that none of the plaintiffs whose damage, if any, was caused by such negligence, can recover against tbe Drainage District. ’ ’

Tbe appellant contends that Article 2, Section 22, of tbe Constitution has no application because tbe crops were not damaged “for public use”; that tbe cause of action sounds in tort, and that, therefore, there can be no recovery against tbe Drainage District.

Appellees do not claim that tbe District is liable in tort. They say no tort was committed; that tbe jury so found; but they contend that tbe crops were damaged for public use, and, for that reason, tbe damage is compensable under Article 2, Section 22, of tbe Constitution. It is true tbe jury found that there was.no negligence on tbe part of tbe District, its agents or servants. But, the poison was not intentionally sprayed on tbe crops, and there is no evidence that in spraying tbe willows, on tbe Drainage District right-of-way, it was inevitable that some of tbe poison would drift over onto tbe crops. In fact, it appears that tbe poison was used by tbe District in tbe years 1950 to 1953, inclusive, with practically no damage. There was just one small claim of $15.00 during those years; tbe appellees claim their crops were damaged in tbe year 1954.

It would be stretching tbe imagination to tbe breaking point to say that tbe District used tbe crops or used tbe land on which tbe crops were growing. By a process of elimination justified by tbe jury verdict, and tbe undisputed evidence, the poison must have drifted on tbe crops accidentally. This does not constitute a use of tbe crops by tbe District within tbe meaning of tbe Constitution. It would be entirely unreasonable to say that under the law of this State tbe District is not liable if its agents, servants and employees negligently permitted poison to get on tbe crops, but that tbe District is liable if the poison used by tbe District got on tbe crops accidentally. To say that tbe District would be liable for such an accident, would be to say that tbe District would be liable if one of its trucks accidentally ran into another car and damaged it.

Appellees have cited many Arkansas cases in their excellent brief, but, in our opinion, none of the cases sustain their position, bearing in mind that appellees ’ crops were not intentionally, inevitably, or negligently damaged, and the damage was not of a permanent nature. Hot Springs Railway Co. v. Williamson, 45 Ark. 429, was a suit for damages by a property owner against a private corporation for injury to private property caused by the construction of a railroad embankment down the center of a street. The injury to the Williamson property was of a permanent nature, and whatever was done cannot be said to have been accidental in any sense of the word.

McLaughlin v. City of Hope, 107 Ark. 442, 155 S. W. 910. This case went off on a demurrer which admitted the property involved had been rendered unsuitable for the operation of a mill due to the discharge of sewage in a stream used by the mill in its operation. The court said: “Since the City’s action in constructing its sewer system so as to turn the sewage into said branch indicates an intention to acquire a permanent right to continue to use it and pollute the stream, the damages to the owner should be assessed upon that basis and as though the city were proceeding to acquire it under its power of eminent domain.”

Hogge v. Drainage District No. 7, 181 Ark. 564, 26 S. W. 2d 887. A demurrer admitted the lands had been damaged for public use. Land had been flooded and the owner was entitled to compensation. The flooding of the land amounted to a taking, and the court emphasized the fact that the .damage was of a permanent nature. Again and again in this case, the permanent feature of the damage is stressed; the court said: “There can be no doubt that obstructing a navigable or nonnavigable flowing stream and thereby flowing the water back upon the land of another is such damage as entitles the owner to compensation ... If the levee and drainage district does not concede that damages will result from the construction of the improvement, an action for damages may be brought by the landowner, when the improvement is constructed, to determine the question whether his lands will be permanently injured, and, if so, to recover the damages.” Referring to a United States Supreme Court case, the court said: ‘ ‘ The finding of the ■court was that it was not a case of temporary overflow but a condition of permanent injury from recurring overflows . . . Under the allegations of the complaint, the injury to the land was not temporary, but permanent . . . The levee and drainage district included dams and levees which obstructed the natural flow of the water, and caused it to flow back upon the lands of the plaintiff to their permanent injury.”

Sharp v. Drainage District No. 7, 164 Ark. 306, 261 S. W. 923. There, it is pointed out that a landowner may recover for the flooding of his land. The damage was of a permanent nature, and part of his land was taken. It went off on demurrer. Keith v. Drainage District No. 7 of Poinsett County, 183 Ark. 384, 36 S. W. 2d 59. This is a flooding case, a permanent condition. The same case was again before the court in 185 Ark. 553, 48 S. W. 2d 236. Road District No. 6 of Lawrence County v. Hall, 140 Ark. 241, 215 S. W. 262. The land was actually taken and used. Public use is stressed. Campbell v. Arkansas Highway Commission, 183 Ark. 780, 38 S. W. 2d 753. It was held that a property owner is entitled to recover for permanent damage done to his property by the construction of a bridge. No accident was involved. Miller Levee District No. 2 v. Wright, 195 Ark. 295, 111 S. W. 2d 469. There was an actual taking plus permanent damage in the construction of a levee. Public use was present. Sain v. Cypress Creek Drainage District, 161 Ark. 529, 257 S. W. 49. Public use is involved. A permanent condition exists, and plaintiff’s land is actually used for flooding.

Appellees rely heavily on North Arkansas Highway Improvement District No. 1 v. Greer, 163 Ark. 141, 259 S. W. 380. The District was authorized to take land for borrow pits and this is what it did. There was an actual taking and use by the District. Another case upon which appellees place considerable emphasis is Gray v. Doyle, 167 Ark. 495, 269 S. W. 579. There, embankments were constructed by the Improvement District which caused the water to back up on the property owner’s land, causing permanent damage. The embankments were built to protect the lower landowners and were a part of the plan in constructing the drainage district. Permanent damage is stressed.

Appellees contend that Drainage District No. 16 of Mississippi County v. Rouse, 203 Ark. 723, 158 S. W. 2d 261, is directly in point, but we do not think so. In that case, a strip of private property measuring some 45 1/2 to 50 1/2 feet by 700 feet adjacent to the drainage district right-of-way was actually used by the District on which to put dirt removed from a drainage ditch. The District deliberately and intentionally used the property owner’s land on which to place the spoil from a ditch which was being dug.

When all is said and done, and regardless of what this cause of action may be called, it sounds in tort. The Drainage District did not use appellees’ land or crops; certainly the poison was not intentionally sprayed on the crops. Moreover, the evidence shows that it is not impossible or impractical to spray the willows on the Drainage District Property without damaging crops on adjacent land. When the possibility of a cause of action for damages due to an intentional act or to an inevitable result of an intentional act is eliminated, and that is the situation we have here, there remains only the possibility of an action in tort.

There are many laymen, lawyers and judges who believe that, in all fairness, the State, its political subdivisions and quasi public corporations such as improvement districts created by the State, should be liable for torts committed. But the law, holding otherwise, has been firmly established for many years. Wood v. Drainage District No. 2, Conway County, 110 Ark. 416, 161 S. W. 1057; Board of Improvement Sewer District No. 2 v. Moreland, 94 Ark. 380, 127 Ark. 469. In Sewer Improvement District No. 1 of Sheridan v. Jones, Administrator, 199 Ark. 534, 134 S. W. 2d 551, the court said: “If, when and after the plant has been completed, it is so maintained or operated as to become a nuisance, relief must be obtained by suit to abate the nuisance.” An action in tort would not lie. In Jones v. Sewer Improvement District No. 3 of Rogers, 119 Ark. 166, 177 S. W. 888, sewage was allowed to flow on adjacent property. The court held that an action in tort would not lie. Although the landowner had been damaged, injunction was the proper remedy.

Appellees’ crops were not damaged for public use. The principles of eminent domain are not applicable, and, since under the law of this State an improvement district is not liable in tort, there can be no recovery. This conclusion may appear to be harsh, but it has been the law of this State for many, many years that neither the State, its political subdivisions nor quasi public corporations such as improvement districts, are liable in tort. Neither the General Assembly nor the people have seen fit to change the law in that respect, and it should not be done by this court.

Beversed and dismissed.

Justices Holt and McFaddin dissent.


text:
    Brock v. Bates.
    5-1127
    297 S. W. 2d 938
    Opinion delivered January 7, 1957.
    [Rehearing denied February 18, 1957]

      L. A. Williams and Richard Motley, for appellant.

      Wiley W. Bean, for appellee.
   Ed. F. McFaddin, Associate Justice.

In this suit — involving a roadway — the decree must be reversed because of a procedural point.

At the close of the plaintiffs’ case, the Chancery Court sustained the defendant’s demurrer to the plaintiffs’ evidence and dismissed the complaint. Under the holding in Werbe v. Holt, 217 Ark. 198, 229 S. W. 2d 225, and other cases, the rule is that in passing upon such a demurrer the Court must give the evidence its strongest probative force in favor of the plaintiff and rule against the plaintiff only if such evidence, when so considered, fails to make out a prima facie case. In the case at bar, we believe that the plaintiffs’ evidence, when so weighed, made a fact question requiring the weighing of evidence and the exercise of fact finding powers; and so we conclude that the decree should be reversed and the cause remanded, with directions to overrule the defendant’s demurrer.

Appellants, Jack Brock, et al., own lands, in Johnson County, that are located about one mile west of old Highway Ño. 64, which runs in a general north and south direction. Appellee Bates owns the land west of and along the highway. West of the Bates land, Buddy Brock owns land; and then further west arc the lands of appellants. The road in question (called the Brock road) leaves old Highway No. 64 on appellee’s lands and goes westerly through the lands of appellee and Buddy Brock to the house on appellants’ lands about a mile west of old Highway No. 64. In 1955 appellee, Bates, erected and locked an iron gate across the Brock road where it leaves Highway No. 64. Appellants brought this suit in chancery to prevent the locking of the gate and the closing of the Brock road to the appellants.

Appellants offered evidence designed to show: that the Brock road had been in existence for over sixty years; that the appellants and their predecessors in title had, during all that time, traveled the Brock road across the Buddy Brock lands and the appellee’s lands to old Highway No. 64; that originally the Brock road continued on westerly through appellants ’ land to a boat landing on the Arkansas River; that the portion of the road from the appellants ’ lands to the river had been discontinued; that since about 1906 there had been a “seasonal gate” on the boundary line between the Buddy Brock lands and the appellee’s lands, and, at another place on the Brock road, there had been a “wire-gap-gate”; that both of these gates had only been nsed about three months a year, and only to prevent cattle in the fields from going from one farm to another. It was also shown that the Brock road had never been dedicated as a State or County highway, but had existed by prescription for over sixty years.

In sustaining the defendant’s demurrer, the learned Chancellor was of the opinion that the “seasonal gate” between the Bates land and the Buddy Brock land had existed since 1906 and had defeated the appellants ’ right to use the Brock road over the appellee’s lands. But the appellants argued that even if the Brock road was not a public road under § 37-109 Ark. Stats., still the appellants and their predecessors in title had used the Brock road and acquired prescriptive rights long before 1906 and that the prescriptive rights once acquired could not be lost except by a continuous gate maintained for seven years; that neither the “seasonal gate” nor the “wire-gap-gate” was so maintained; and that thus the prescriptive rights over the Brock road had not been lost by reason of either the “seasonal gate” or the “wire-gap-gate ’ ’.

A decision by the Chancery Court required a weighing of the appellants’ evidence to determine at least two questions: (a) had appellants’ predecessors in title acquired a prescriptive right prior to 1906? and (b) had the “seasonal gate” or “wire-gap-gate” been maintained in such a manner as to cause appellants’ prescriptive rights to be lost? In short, when we give full probative force to appellants’ evidence — as we do under the rule of Werbe v. Holt — the said evidence was suffieient to require the exercise of fact finding powers and the determination of whether the said evidence should be believed or disbelieved. In this situation the demurrer to the evidence should have been overruled so the evidence could be weighed and the facts decided on the merits. Therefore, the decree is reversed and the cause is remanded, with directions to overrule the demurrer; and for further proceedings not inconsistent with this opinion.

Carleton Harris, C. J., not participating.

       Some of the cases following and applying the rule of Werbe v. Holt are: Poynter v. Williams, 218 Ark. 570, 237 S. W. 2d 903; Thompson v. Murdock Acceptance Corp., 223 Ark. 483, 267 S. W. 2d 11; Karoley v. Reid, 223 Ark. 737, 269 S. W. 2d 322; and McCord v. Robinson, 225 Ark. 177, 280 S. W. 2d 222.

       As regards the Brock road and the “seasonal gate” erected about 1906, Mr. Cecil Barger, who, up until about 1950, lived on the lands that the appellee now owns, testified:
      “Q. Was it ever stopped up to keep the public from traveling it?
      A. Not that I know of.
      Q. Did you stop it up ?
      A. No.
      Q. And you lived there until 1950?
      A. That’s right.
      Q. Sometime back in 1936, or somewhere along in there, did you sign a petition to have that declared a County road?
      A. I signed it — let’s see — yes, I signed that petition.
      Q. Did the County work that road?
      A. They did.
      Q. Until you left there, is that right?
      A. Yes, sir . . .
      Q. . . . That was on west of the house. It was a wire gap, wasn’t it, or was it a gate?
      A. Which one?
      Q. Back over on the west there where you put it up.
      A. When I put it up, I put up a wire gate.
      Q. Was it what would be called a gap?
      A. That’s right.
      Q. You didn’t put a lock on it, did you?
      A. No.
      Q. You permitted everybody to use it?
      A. That’s right.
      Q. Had no intention of cutting them off?
      A. No, nothing only that one time.
      Q. But you didn’t do it then?
      A. No, and I wouldn’t today.”

       We cannot find “wire-gap-gate” in the dictionary; but to farmers and others engaged in agricultural pursuits the meaning is clear: when there is a wire fence, the wires on one of the fence posts may be severed from the post and attached to a stake so that the stake can either be tied to the post to make a fence, or the stake and attached wires pulled away so as to leave an opening or gate between the two fence posts. The evidence showed that the “wire-gap-gate” was far less an obstruction to the road than the “seasonal gate”, and existed for a much shorter period of time.


text:
    Consolidated Chemical Industries, Inc. v. White.
    5-1122
    297 S. W. 2d 101
    Opinion delivered January 7, 1957.

      Wright, Harrison, Lindsey & TJpton, for appellant.

      Fred A. Neioth, Jr., and Kenneth C. Goffelt, for appellee.
   Minor W. Millwee, Associate Justice.

Appellant, Consolidated Chemical Industries, Inc., owns a 10-acre tract of land in Pulaski County which lies immediately south of 8.5 acres belonging to appellees, E. H. White and Jesse A. White. E. H. White purchased the 8.5 acres in 1945 and subsequently sold two acres to his brother and each bnilt homes on their respective tracts. In 1951 appellant commenced strip mining operations for bauxite on its land and the first dirt removed was spread over the 10-acre tract. Later appellant built a high ramp or dump out of the dirt, lignite and other waste material from its mining operations along the north edge of its tract adjacent to appellees’ lands.

On July 29, 1955, appellees filed the instant action against appellant to recover damages to their lands which allegedly occurred within three years next before the filing of the complaint by reason of the maintenance of a nuisance in the construction of the ramp or stockpile of waste materials which caused the washing of appellees’ lands and the deposit of said waste materials upon and across said lands. Appellant’s answer was a general denial and a plea that the action was barred by the three-year statute of limitations (Ark. Stats., Sec. 37-206). This appeal is from a verdict and judgment for E. H. White in the sum of $650 and for Jesse A. White in the sum of $275.

Appellant first argues that the undisputed evidence established that the damage to appellees’ lands was completed in the spring of 1952 and that their claims were consequently barred by the statute of limitations. The applicable rule which is based upon a distinction between structures which are and those which are not “necessarily injurious” is stated in the leading case of St. Louis I. M. & S. R. Co. v. Biggs, 52 Ark. 240, 12 S. W. 331, 6 L. R. A. 804, 20 Am. St. Rep. 174, as follows: “Whenever the nuisance is of a permanent character and its construction and continuance are necessarily an injury, the damage is original, and may be, at once, fully compensated. In such case the statute of limitations begins to run upon the construction of the nuisance. Ry. v. Morris, 35 Ark. 622; Ry. v. Chapman, 39 Ark. 463. But when such structure is permanent in its character, and its construction and continuance are not necessarily injurious, but may or may not be so, the injury to be compensated in a suit is only the damage which has happened; and there may be as many successive recoveries as there are successive injuries. In such case the statute of limitations begins to run from the happening of the injury complained of.” See also, Chicago, R. I. & P. Ry. Co. v. Humphreys, 107 Ark. 330, 155 S. W. 127, and Daniels v. Batesville, 189 Ark. 1127, 76 S. W. 2d 309, and cases there cited.

It is clear that the instant case falls within the second class mentioned above and that the statute begins to run from the happening of the injury complained of. On this issue appellees testified that the ramp and stockpile of waste materials were still under construction in August 1952 and that rains subsequent thereto washed their lands and otherwise damaged them by leaving heavy deposits of the waste material as far as 75 feet upon their lands, killing their trees and destroying the fertility of the whole tract. While Jesse A. White noticed some washing by the “winter rains” in 1952, each of the appellees stated that most of the damage occurred in 1953 and subsequently. While the testimony of appellees was disputed to some extent by that offered by appellant, it was substantial and sufficient to support the jury’s finding that the damages occurred within three years next before the filing of the complaint on July 29,1955. On the whole case the evidence was sufficient to sustain the verdict and the trial court did not err in refusing to direct a verdict for the appellant.

We also find no merit in appellant’s contention that the verdict was excessive. A real estate agent familiar with the lands in question testified on direct examination that appellees’ lands would be worth $11,000 except for the damages occasioned by appellant’s construction and maintenance of the ramp which had reduced the value of the lands 40 per cent. While this estimate was rendered somewhat indefinite on cross-examination, the witness still concluded that the lands sustained a 25 percent reduction in value on account of the construction and maintenance of the ramp and his testimony was not contradicted by that of any other witness.

Affirmed.

Carleton Harris, C. J., not participating.