text:
    Doyle MOORE v. Eloise COOK
    5-4353
    420 S. W. 2d 905
    Opinion delivered November 20, 1967

      Smith, Williams, Friday & Bowen; By: George Pike Jr., for appellant.

      Terral, Rawlings, Matthews & Purtle; By: Gale Matthews, for appellee.
   Lyle Brown, Justice.

This appeal by Doyle Moore challenges a jury verdict against him for personal injuries arising out of a traffic mishap. The only issues on appeal concern (1) the refusal of the trial court to give defendant Moore’s instruction No. 1, and (2) alleged error in giving AMI 601 concerning the rules of the road considered applicable by the court.

The accident occurred while both vehicles were traveling east on Ninth Street in Little Rock. The cross-street immediately ahead of them was Broadway. In that block, Ninth Street is divided into four lanes and is restricted to one-way traffic going east. Both sides of the street have parking meters. As to these litigants, Moore was driving the forward car and Mrs. Cook was immediately behind him, both being in the second lane. At a point approximately 118 feet inside the block, Moore began a turning movement to his right. If unmolested he would have crossed what Moore calls the “parking meter lane” and entered a driveway. At about the same time, Mrs. Cook began a right-turn movement. It was her intention to get into the lane nearest the curb, which was unobstructed from her point to Broadway, for the purpose of turning right on Broadway. The lane from which she desired to move was congested completely to Broadway. The two vehicles collided when almost side by side, Moore’s car being slightly at an angle to his right with the front end a few feet inside the “parking meter lane.”

In his requested Instruction No. 1, Moore wanted the jury told that Mrs. Cook was bound in law to pass Moore on the left. That was on the theory that the lane designated by Moore’s counsel as the “parking meter lane” could not be used for passing on the right. Secondly, Moore objected to the court submitting, in the format of AMI 601, those rules of the road governing overtaking and passing on the right. The thrust of that argument was likewise on the theory that the lane nearest the curb was not available for overtaking and passing; so Moore contends the rules of the road given were not applicable.

The primary purpose of building improved streets is for the movement of traffic. And, as has been appropriately said, “parking . . . has always been considered a right inferior to that of travel or passage.’’ 6 Vanderbilt Law Review 907 (1953). “Parking in the public streets in its broader connotation is a privilege in derogation of the common easement of travel and transport . . . .” Board of Commissioners v. Local Government Board of New Jersey, 45 A. 2d 139 (1945).

Appellant argues that the extreme right lane was obstructed. He theorizes that the white markings served as notice to the traveling public that the “curb lane was for parking.” That theory is not consistent with simple reasoning. It is common knowledge that the white markings indicate the space inside which a vehicle must be parked.

Appellant next argues that Mrs. Cook was driving outside the main-traveled portion of the street, which is not permitted when passing on the right. Ark. Stat. Ann. § 75-610 (Repl. 1957). The answer is two-fold:

(1) It is undisputed Mrs. Cook was making an approach for a right turn on Broadway. She started her approach some 180 feet from Ninth and Broadway when she could see the traffic “stacked up” in front of her in the driving lane she occupied. The extreme outside lane was completely unobstructed all the way to the Broadway intersection. That lane was nine feet in width, which was wide enough to accommodate travel. Ark. Stat. Ann. § 75-615 (Repl. 1957) requires the approach for a right turn to be made as close as practical to the curb. She may or may not have started her approach too soon. That was a question for the jury.

(2) Whether the extreme outside lane is a part of the main-traveled portion of the street is a fact question to be resolved according to the facts in this particular case. See Ketchum v. Pattee, 98 P. 2d 1051 (1940). The frequency of parking in this block is not to be found in the record. Witness Mallett, the investigating police officer, stated on cross-examination that driving in the involved lane was permitted when it was unobstructed. Mrs. Cook regularly used this route during school to pick up her children and she customarily used the lane for her approach to the Broadway intersection. The street was paved and curbed, marked for one-way traffic, and had ample room for four cars. By its findings the jury, after appropriate instructions, indicated their conclusion that Mrs. Cook was in a portion of the roadway regularly used, absent parked vehicles.

Finally, the court instructed the jury under Ark. Stat. Ann. % 75-613 (Repl. 1957), which prohibits motorists in laned traffic from moving from a given lane without first ascertaining the probable safety of the movement. We find no merit in appellant Moore’s objection to this instruction. Both drivers were moving from one lane to another and both were bound by the same rule. Moore argues he was merely “crossing a parking lane” to enter a driveway and he should not be charged with obedience to the rule. We do not agree. Four lanes were clearly identifiable. The outside marker for each lane was, of course, the curb; the other lines were marked with white paint. The presence of parking meters at the curb did not, of itself, transform the outside lanes into exclusive parking areas, as we have heretofore indicated.

Affirmed.

Harris, C. J., and Byrd, J., not participating.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Doris McCASTLAIN, COMM’R of Revenues
      v. OKLAHOMA GAS & ELECTRIC CO. et al
    5-4292
    420 S. W. 2d 893
    4 Opinion delivered November 20, 1967

      Lyle Williams, Tom Tanner and Hugh Brown, for appellant.

      Bryan & Fitshugh; House, Holmes & Jewell; Arnold & Arnold, and H. Duane Stratton, Oklahoma City, Okla., for appellees.

      This action was commenced against Doris McCastlain, as Commissioner of Revenues, the judgment was rendered against her as such, and the appeal was taken by her. The briefs were filed in: the name of B. Bryan Larey, as Commissioner of Revenues, but no substitution of parties has ever been made. Since the litigation was against the former Commissioner in her official capacity, any judgment or decree would be binding on her successors in office}

   John A. Fogleman, Justice.

Appellant made an adjusted assessment against appellee Oklahoma Gas & Electric Company under the Arkansas Compensating Tax Act on the use of certain items claimed to be exempt by the electric company. After paying the tax under protest and exhausting administrative remedies, the company brought suit against appellant seeking to recover the tax with interest. Southwestern Power Company was permitted to intervene, but has actually only asked that Oklahoma Gas & Electric Company have the relief it seeks. Since Southwestern has actually filled the role of amicus curiae, we will refer to Oklahoma Gas & Electric Company as the appellee.

The adjusted tax and penalty in the sum of $21,74-3.29 were assessed upon some 365 items. Protest was made on items on which the assessment amounted to $21,126.27. These items fall roughly into three categories :

1. Steel towers, wooden poles, crossarms, supports, insulators and other items supporting the wires over which electric current is transmitted and distributed.
2. Items constituting substations.
3. Items used for street and area lighting purposes.

Exemption of these items is claimed under § 6 of Act 487 of 1949 [Ark. Stat. Ann. § 84-3106 (G-) (Supp. 1965),] the pertinent provision of which is as follows:

“Public Electric Power Companies. Tangible personal property, consisting of electric power generating machinery, transformers, control boards, substation equipment, lines, meters, and all other accessory equipment and devices used directly in and connected to and becoming a part of the primary electric power generating and distribution system is declared to be a public transmission facility and exempt from the tax imposed herein. Buildings, dams, shops, tools, maintenance equipment, office machines and supplies, automotive equipment, and all other materials of whatever kind or character incidental to such primary generating transmission facility are not included or classified as exempt.”

The trial court granted judgment in favor of appellee on all items involved in the protest. From that judgment appellant brings this appeal, citing the following points for reversal:

I. Exemptions from taxation are never presumed, and to doubt is to deny an exemption.
II. Ark. Stats., § 84-3106 (G-), paragraph 3 exempts from the Arkansas Compensatng (Use) Tax a certain class of tangible personal property which is both specific and limited in its composition.
III. The Legislature further limited this' exemption by providing four rules or guide lines by which the particular item seeking exemptions must abide before the exemption may be granted.

We find it unnecessary to deal with the first point as we feel that the statute may be applied to the various items in question without reasonable doubt, making resort to presumptions inappropriate. As to the other points, we will deal with them as related to the various items rather than discuss the points separately.

It is the contention of appellant that the word “lines” as used in the exemption statute should be construed to mean “wires” only and that none of the materials utilized for the support of these wires is exempt. On the other hand, appellee contends that this exemption is broad enough to cover transformers, substations, street lighting equipment, and virtually all of the questioned items. Appellant’s position is that the popular definition of the word should control, while appellee contends that the technical definition followed in the industry should govern. Appellee bases its contention upon the rule that commercial, trade or professional terms used in a statute dealing with the trade, business or profession are construed in the sense in Avhich such terms are generally understood in that trade, business or profession* even though such meaning may differ from the common, ordinary meaning. As to the items involved, we would come to the same conclusion without regard to the definition used. We base our findings on what appears to us to be the clear legislative intent.

The word “electric” preceding the specification of items of tangible personal property in the first sentence of the applicable subsection quite obviously modifies each of the items specified; i. e., the tangible personal property'includes electric transformers, electric substation equipment, electric lines and electric meters. In view of the commonly accepted concept of the meaning of the term “electric lines,” we do not see how the extremely narrow definition urged by appellant could have been intended by our General Assembly. Individuals in ordinary conversation refer to electric lines as the entire structure carrying electric current from the point of generation to the place of consumption. We speak of electric lines in the same sense as we do of railroad lines and telephone lines. On those subjects we do not think of railroad lines as consisting of the steel rails only, nor do we mean that telephone lines are composed of the wires only. Definitions of the word “lines’’ in our dictionaries reflect this usage. Among those given by Funk & Wagnalls New Standard Dictionary are: “The roadbed of a railroad” [Emphasis added]; . . . “The system of wires and poles comprising a telegraph or telephone connection between two points, as the Western Union lines were all down.”

Webster’s New International Dictionary, Third Edition, includes: “The principal circuits of an electric power system” ... “The track or roadbed of a railway.”

The General Assembly resorted to this usage in granting to electric power companies the right of eminent domain and the right to use public highways and streets when authorized the construction, operation and maintenance of “lines of wire, cables, poles, etc., necessary for the transmission of electricity.” Ark. Stat. Ann. § 35-301 (Repl. 1962). Rural electric cooperatives are given similar rights for their “lines.” § 77-1104 (11) (Repl. 1957).

The legislative intent is further indicated by reason of the fact that the General Assembly specifically mentioned items such as transformers, control boards, and meters. All of these terms identify the articles intended with certainty. It seems only logical that if the General Assembly had intended to exempt only wires, it would have used that word. Furthermore, no logical reason has been offered to explain why it would exempt all generating machinery, transformers, control boards, substation equipment, wires, meters, all other accessory equipment and devices used directly in and connected to and becoming a part of the primary electric power generating and distribution system and not exempt the steel towers, wooden poles, crossarms, insulators, guying equipment and other items supporting the wires and making it possible for electric current to be transmitted over them. "We agree with the chancellor that these items are exempt. We also agree that such items as signs and numerals required to be mounted on the structures are exempt.

Appellant also questions the exemption of the substations and the fences around them. While we do not agree that these are parts of the “lines” exempt, we must consider whether these items constitute “substation equipment” or “other accessory equipment and devices used directly in and connected to and becoming a part of the primary electric power . . distribution system. ” In doing so, we must keep in mind that buildings, shops, and other materials incidental to such primary generating transmission facility are not exempt.

According to the undisputed evidence, substations serve the purpose of transforming the electricity from the high voltage used for transmission to a voltage suitable for distribution to customers for use. Substations consist of transformers, switches, control systems and other appurtenances necessary to transform electricity from one voltage to another. The structural steel which supports substation equipment apparatus (such as capacitors, fuses, switches, busses, insulators, regulator, wave trap, line terminals, current and potential transformers) is one of the principal substation items on which the assessment is questioned. The undisputed testimony is that it is necessary that this equipment be structurally supported and elevated above the ground. It was also shown that the protested reinforcing steel was an essential component of necessary concrete foundations and pads which supported apparatus constituting substation equipment which includes units such as circuit breakers and lightning arresters as well as the above enumerated items. This steel is also tied to the ground mat — a series of criss-crossed conductors under the earth. It seems to us that all this steel is as essential to a substation as is the apparatus it supports and is exempt as substation equipment.

Appellant also urges that the trial court improperly sustained an exemption of the chain link fencing around the substations. This fencing is required by the Arkansas Public Service Commission through adoption of the National Electric Safety Code. Its purpose is to, prevent the general public from coming into the substation, where, due to the presence of extremely high voltage electrical equipment, danger to uninformed persons might be imminent. While safety requirements of the Commission are persuasive, they are not necessarily controlling. The undisputed testimony, however, shows that the fencing complex is bonded into the ground mat through the ground grid connection as a part of the earth feature of the substation. This in itself is sufficient basis for holding this item to be exempt as substation equipment.

By similar reasoning, we find that fluorescent lights are equipment essential to the utilization of control boards and should be considered exempt as a part thereof. The same may be said of conduit for control cables connecting other substation equipment to control boards. An electric heater is substation equipment because it is necessary to control the temperature in which the sensitive devices constituting the control board must operate.

Appellant contends that components of an enclosure for control boards, meters and other substation control equipment should be classified as a building and, thus, subject to the tax. These units are roof ventilators, wall louvers, steel doors and joists, door frames and roof decking. We hold these to he substation equipment. The undisputed testimony is that these components constitute what is known as a control house, the function of which is to protect the very sophisticated and sensitive control board and equipment from adverse environment by providing an enclosure which can be ventilated, heated or air conditioned as the occasion demands.

A line tuner is a control device which automatically disconnects the lines in the event of inadvertant contact with the lines or an uncontrolled flow of electricity and which later automatically reconnects the circuit. When used in a substation, it is substation equipment.

We cannot agree, however, that lighting equipment is exempt. These light fixtures and components are for the consumption, not the transmission or distribution of electric power. Appellee makes the ingenious argument that these items should be exempt because we have held that street lighting fixtures constitute an integral part of a municipal electric system. In Todd v. McCloy, 196 Ark. 832, 197 S. W. 2d 160, it was said that the provision of ornamental standards and electric lighting equipment to provide modern “white way” electric illumination for city streets was such an enlargement, extension and improvement of a municipally owned light plant and distributing system as to constitute a proper project for financing by issuance of bonds by the city under Amendment Thirteen to our Constitution. Appellee is not operating a municipally owned system which traditionally furnishes street lighting in cities without charge. It is making a charge to cities and private consumers for the service on the basis of a monthly tariff. As a matter of history, the very origin of municipal power systems was in the authority granted to cities to construct or acquire works for lighting the streets. See § 14, Act No. 1 of March 9, 1875. The authority to furnish the power to consumers was added later. See § 1, Act No. 230 of May 6, 1909. The luminaries, hoods, reflectors and mounting and supporting brackets used for street lighting purposes do not constitute equipment and devices used directly in and becoming a part of the primary electric power and distribution system.

Neither can we agree that pole bandages come within any of the property exemptions under the statute. These bandages are impregnated with chemicals used to protect wooden poles from fungi. They are placed around the ground line of reset poles to restore wood preservatives. that have leached out while the pole was formerly set in the ground. If these can be said to be a part of the lines, so could a chemical wood preservative bought for treating poles or chemicals acquired to keep pole attacking insects from the power line right-of-way.

Appellant makes the-argument that exemption of these items gives out-of-state vendors an advantage over in-state businesses dealing in these products. We need not go into the purposes or objectives of the legislative department in granting these exemptions. The wisdom of legislation is not for our determination or consideration, but is for the General Assembly.

Appellee has asked that we assess costs for its supplemental abstract upon the contention that appellant’s abstract was not in compliance with Buie 9. Appellant’s abstract failed to contain reproductions of exhibits introduced, many of which were necessary for a clear understanding of the testimony, since practically all of the principal witness’s testimony was directed toward the introduction and explanation of the exhibits. Furthermore, appellant gave references to the record page numbers only at the introduction of the testimony of each: witness, then he showed only the respective beginning and ending pages of the record of their testimony. A considerable part of appellee’s supplemental abstract was essential to an understanding of all the questions, presented to this court. An award of costs might be appropriate if it were not for the fact that the State of Arkansas is the real-party in interest. It is a generally recognized principle that a state has no liability for costs unless there is specific statutory authorization,‘at least where the state is acting in a governmental capacity and did not institute the action. The immunity, an attribute of sovereignty, extends to the officers, boards and agencies of the state. See, Annot., 72 ALR 2d 1379; 20 Am. Jur. 2d 27, Costs, § 32; 81 C.J.S. 1345, States, § 234. We find no authorizing statute. No mention of costs is made in the statute [Ark. Stat. Ann. § 84-3120 (Repl. 1960)] authorizing this action. The policy of Arkansas in this regard may be found in statutes which exempt the Commissioner of Revenues from payment of costs for institution or prosecution of any suit (§ 84-1719) and which exempt the State from giving security for costs (§ 27-2307). Thus, we cannot assess costs against appellant in this case.

The chancery court is affirmed as to that part of the judgment rendered for recovery of the tax paid on the items we find to be exempt and reversed on those we find not to be exempt. While we would ordinarily modify the judgment here, neither the adjusted assessment nor any other exhibit showing the detailed calculation of tax and penalty paid under protest is in the record and we are unable to make the necessary calculation, so we remand this case for entry of a proper decree.

      While this is the principal use of the stations involved in this litigation, they are also used in certain instances to increase voltages for transmission.


author: John A. Fogleman, Justice. Lyle Brown, Justice,

text:
    Harold FISHER et al v. J. L. BRANSCUM d/b/a Branscum Moving & Storage Company
    5-4328
    420 S. W. 2d 882
    Opinion delivered November 20, 1967

      Louis Tarlowski, for appellants.

      Claude Carpenter Jr. and Reid, Burge & Prevallet, for appellee.
   John A. Fogleman, Justice.

Appellants ask that we reverse the trial court’s affirmance of an order of the Arkansas Commerce Commission authorizng the transfer of a certificate of public convenience and necessity. This certificate for the transportation of household goods was issued to one Homer Fisher on March 16, 1955. It covered irregular routes between points in Arkansas, but all shipments were required to originate or terminate in Mississippi County. Fisher entered into a contract with Branscum for the sale of these operating rights. The joint application of these parties was resisted by appellants, intrastate common carriers of household goods. Their protest was based upon the assertion that the certificate was dormant for failure to render reasonably continuous service. Consequently they contend that approval of the transfer is inconsistent with the public interest. One of the appellants held a virtually identical certificate which he had leased to Branscum.

Provision for transfer of certificates is contained in Ark. Stat. Ann. § 73-1767 (b) (Repl. 1957). Transfer is prohibited when the Arkansas Commerce Commission finds that such action will be inconsistent with the public interest or where it appears that reasonably continuous service has not been rendered under the authority granted by the certificate prior to the application.

After a hearing on November 23, 1966, the Arkansas Commerce Commission approved the transfer. It found that the certificate had not been dormant within the meaning of § 14, Act 397 of 1955 (§ 73-1767). It made a specific finding that Homer Fisher had been ill for a considerable period of time and unable to attend, to business such as he normally would have conducted: had he not become ill, but that afterwards he had been1 attempting to carry on his business.

The scope of our review on appeals is governed by § 73-134. This section provides that findings of fact of the circuit court are not binding on this court. On the other hand, it requires that we review all the evidence and make such findings of fact and law as we deem just, proper and equitable. The circuit court is required to review the order upon the record presented and to enter its finding and order thereon.

In the opinion in Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604, the variable, apparently inconsistent and sometimes confusing statements in some of our opinions with reference to the meaning and application of this statute were harmonized. It is now clear that the review therein provided for is that which we make in chancery cases. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. In doing this, we follow these rules:

1. The trial is de novo upon the record — not as if no judgment had been rendered, but for the purpose of determining whether the judgment is against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481; Missouri Pacific RR. Co. v. Williams, 201 Ark. 895, 148 S. W. 2d 644; Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604.
2. Neither the findings of the circuit court nor the findings of the Commission are binding on appeal, but we will not upset the findings of the Commission unless they are clearly against the preponderance of the evidence. Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truca Service, Inc. v. Missouri & Arkansas Transportation Co., 203 Ark. 506, 157 S. W. 2d 512; Arkansas Express, Inc. v. Columbia Motor Transport Co., 212 Ark. 1, 205 S. W. 2d 716; Wisinger v. Stewart, supra; Washington Transfer & Storage Co. v. Harding, 229 Ark. 546, 317 S. W. 2d 18.
3. In weighing the evidence, we do not substitute our judgment for that of the Commerce Commission. We will accord due deference to the Commission’s findings because of its peculiar competence to pass upon the fact questions involved and because of its advantage in seeing and hearing the witnesses during the full hearing. St. Louis S. W. Ry. Co. v. Stewart, 150 Ark. 586, 235 S. W. 1003; Fort Smith Light & Traction Co. v. Bourland, supra; Potashnick Truck Service, Inc. v. Missouri & Arkansas Transportation Co., supra; Schulte v. Southern Bus Lines, 211 Ark. 200, 199 S. W. 2d 742; Wisinger v. Stewart, supra; Boyd v. The Arkansas Motor Freight Lines, Inc., 222 Ark. 599, 262 S. W. 2d 282; National Trailer Convoy, Inc. v. Chandler Trailer Convoy, Inc., 233 Ark. 887, 349 S. W. 2d 672.
4. The burden is on the appellant to show that the judgment is erroneous. Fort Smith Light & Traction Co. v. Bourland, 160 Ark. 1, 254 S. W. 481.
5. When the evidence is evenly balanced, the Commission’s views must prevail. Boyd v. The Arkansas Motor Freight Lines, Inc., supra.

In short, this court’s function is to inquire whether the determination of the Commission is contrary to the weight of evidence. Missouri Pacific Transportation Co. v. Inter City Transit Co., 216 Ark. 95, 224 S. W. 2d 372. In so doing, we must not lightly regard the findings of the Commission. Superior Forwarding Co. v. Southwestern Transportation Co., 236 Ark. 145, 364 S. W. 2d 785.

Appellants now urge that the order approving the transfer is not supported by substantial evidence. The basis of their contention is that there was not substantial evidence to show that reasonably continuous service under the authority granted Homer Fisher had been rendered prior to the application for transfer.

Branscum testified that: During the four or five years h¿ had operated under the lease of Beckham’s certificate to the extent that it had been necessary for him to purchase additional equipment and to start construction of a new -warehouse; the population of the Blytheville area was increasing and industrial plants were moving in; he did considerable business because of the air base at Blytheville, and a lot of civilian moves were going on; to his knowledge, the only certificates for household goods carriers were those issued to Homer Fisher and three of the appellants, one of whom was previously Branscum’s lessor. Branscum also testified, over the objections of the protestants, that he had reviewed the books and records of Homer Fisher and made a list of the moves the latter had made outside the city limits of Blytheville in the preceding two or three years. The list showed 23 moves outside the city limits of Blytheville in 1963, 19 in 1964, 17 in 1965, and 24 in 1966. Although he had access to information as to origin and déstination, this was not shown on the list and it was very possible that most of the shipments during 1963 may have gone within a radius of a mile of Blytheville. He could not tell whether any of the moves on the list went to Little Rock or Texarkana or any other place in Arkansas. In the books he saw moves to Jonesboro and West Memphis.

Homer Fisher, at the time of the hearing, only owned one truck which he testified had been in operation continuously. He further testified that: He worked out of his home, a telephone there being listed in his name; he had two part-time employees; he had no warehouse; he was personally in charge of the operation; he had transported one or two or maybe more shipments between various points and places in Arkansas and Mississippi County in 1966; they originated in Blytheville, one going to Jonesboro and one to West Memphis; he handled 24 or 34 shipments to points around the edge of Blytheville, but outside the city limits, over the preceding two years; he had brought one or two to Little Rock and some to West Memphis during the life of the permit; he had not been able to handle more than a very few shipments during the preceding two years because of illness; he judged that there were five or six shipments under the permit in Mississippi County just outside the edge of Blytheville during the month of September 1966; to the best of his memory he handled movements under the permit in August 1966, but didn’t know where they went; he had records that would show movements during each month of 1966, but did not have them with him; he moved one or two to Fort Smith and one to Prescott and moved into Jonesboro in 1966, but couldn’t remember any others; the service he had rendered in 1965 had been less because he had been in the hospital most of the time; the bulk of his operations under the permit was conducted in the immediate vicinity of Blytheville; he drove his truck himself; he was advertising in the telephone book, in his front yard and on his truck, and by getting in contact with persons, making solicitations and trying to get business; he was incapacitated from July 1965, up until the first of September, but for the preceding two months he had been up and moving people.

Protestants offered no evidence pertaining to the issues.

We are unable to distinguish this case from The Arkansas Motor Freight Lines, Inc. v. Howard, 224 Ark. 1011, 278 S. W. 2d 118. There the applicant for transfer was authorized to operate as a motor carrier of a wide range of commodities upon designated highway routes extending into every section of the state. It had been unable to exercise its authority to any great extent. It had only one terminal. Its rolling stock consisted of one truck, three tractors and four semi-trailers. It had carried only 39 shipments of freight during its thirteen-month existence, although it advertised for business and never refused any cargo tendered. The Commission found that reasonably continuous service had been rendered and this court affirmed. Language in that opinion which we here deem appropriate is as follows:

“* * * Inasmuch as the Commission’s knowledge of its own specialized field is undoubtedly superior to ours, its judgment on a question of fact is not to be set aside unless clearly against tbe weight of the testimony. Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. No difficult problems of law were presented to the Commission in this case. Whether there is a need for the whole range of facilities that might be made available under the Atlas certificate is not the question, for the issue of public convenience and necessity was determined when the permit was granted. Nor was Atlas required to show that it had fully utilized the possibilities lying at its disposal; no law or regulaton requires that a motor carrier systematically travel over all its territory with trucks that are empty for want of business.
* * [T]he Commission was warranted in concluding that the Atlas certificate has not been dormant. This little company, with relatively modest assets, held itself in readiness to render service, advertised its existence, and accepted whatever business was offered. Under the statute complaint might have been made that it was not transporting ‘all the commodities authorized . . . over all the routes authorized,’ Ark. Stats., § 73-1715; but no such complaint ivas lodged by the Commission, the public, or any competing carrier. In this proceeding the issue is narroAved to whether the company’s service has been reasonably continuous; the Commission’s affirmative answer is not contrary to the evidence.”

In this case, too, the certificate might have been revoked by the Commission upon complaint of any of the protestants, or upon its oavh motion, on the very ground of appellants’ protest. See § 73-1767 (a). The fact that no such action was instituted could well be the basis for an inference that appellants’ anxiety about the transfer is due to the prospect of a more active utilization of the authority by a healthy proprietor. Appellants argue in their brief that we ought not to permit a change in the competitive situation in Blytheville and say that they are willing for Fisher to continue operations under the certificate. According to the opinion in the cited case, snch a change is not a basis for a finding that the transfer is inconsistent with the public interest.

As a point for reversal, appellants allege error in the admission of the lists prepared by Branseum from the Fisher books. Since they , were not business records kept in the ordinary course of business, they contend that these exhibits were inadmissible under either the best evidence rule or Ark. Stat. Ann. § 28-928 (Repl. 1962). Appellants’ argument on this point is interwoven into, and forms a part of the basis for, their contention that there is not substantial evidence to support the Commission’s findings. Even without these lists, the testimony would have been sufficient to meet the test laid down in the Howard case. Furthermore, it is not always necessary or advisable that boards, commissions and agencies of the nature of the Commerce Commission be required to adhere strictly to the rules of evidence governing courts in jury trials. See Piggott State Bank v. State Banking Board, 242 Ark. 828, 416 S. W. 2d 291. The necessity for strict adherence to rules of evidence by this Commission has also been eliminated by statute. The Arkansas Commerce Commission came into existence by virtue of Act 132 of 1957 (§§ 73-151 to 73-162). Under that Act all authority, powers, duties, privileges and jursdiction of the Arkansas Public Service Commission with respect to regulation of carriers were expressly conferred on the new Commission. We have recognized that procedure on appeals from the Commerce Commission is governed by the statutes which applied to the Arkansas Public Service Commission as the successor to the Corporation Commission which, in turn, was the successor to the Railroad Commission. See Wisinger v. Stewart, 215 Ark. 827, 223 S. W. 2d 604. By the same process of reasoning, the statute on rules of evidence governing the Public Service Commission while it had jurisdiction of matters pertaining to carriers should be applied. These rules were set out as a part of the same Act which changed the name of the Arkansas Corporation Commission to Arkansas Public Service Commission. Act 40 of 1945. Subsection A of § 2 of that Act (§ 73-127) provides that the Commission shall not be bound by the strict technical rules of .evidence, but may exercise such discretion as will facilitate its efforts to ascertain the facts bearing upon the right and justice of the matters before it. We cannot say that the Commission abused its discretion in admitting the evidence attacked.

The uncontradicted evidence offered by appellee is not too insubstantial to support the findings of the Commission. The judgment is affirmed.

Harris, C. J., George Rose Smith and Brown, JJ., dissent.

Lyle Brown, Justice,

dissenting. There is no substantial evidence to show that Homer Fisher rendered reasonably continuous service prior to the application for transfer. To the contrary, his own testimony shows the certificate was practically dormant.

Homer Fisher obtained his permit in 1955. He was authorized as a common carrier to transport household goods over the public' highways throughout the State. The only restriction on carriage was “that all shipments must originate or terminate within Mississippi County, Arkansas.” The history of his operation for the past four years indicates that practically all of his hauling was confined to Blytheville and the immediate vicinity. In those operations it should be pointed out that he needed no permit from the Commission. Ark. Stat. Ann. § 73-1758 (Repl. 1957). Transportation within a municipality “or within a commercial zone” is exempt from the permit requirements. The term “commercial zone” refers to any municipality and the area outside its corporate limits which is prescribed by the Interstate Commerce Commission as a commercial zone. Under the commercial zone table established by the ICC, the “Blythe-ville Zone” consists of the municipality and all unincorporated areas within four miles of its corporate limits. Code of Federal Regulations (1942) § 170.16 (3).

As to trips outside the city limits of Blytheville, appellee’s testimony was to the effect that Fisher made twenty-five such trips in 1963, nineteen in 1964, seventeen in 1965, and twenty-four in 1966. But of these trips, appellee offered proof of only four such trips being made beyond the Blytheville area within the last two years. Those consisted of trips to Jonesboro, Fort Smith, Prescott, and possibly West Memphis. In describing all other trips outside of Blytheville city limits, these expressions described the distance of these hauls: “just out of the edge of Blytheville,” and “in the immediate vicinity of Blytheville.”

The majority opinion gives credit to Homer Fisher for trips made within the commercial zone of Blythe-ville. Fisher is clearly not entitled to that credit.

The apparent failure of Homer Fisher to render a reasonably continuous service outside the Blytheville zone may well have been caused, in part, by his limited facilities. He possessed only one truck — a 1948 model which he acquired secondhand; it had a fifteen foot van-type bed, six to seven feet in width; he had no warehouse; he used his home as his headquarters; and he had two part-time employees. Homer testified that he was in the hospital during part of 1965, indicating that his illness affected his business. However, in that year he was able, according to his testimony, to do more local hauling than during any of the reported four years.

I cannot agree with the majority in making a favorable comparison of this case with Arkansas Motor Freight Lines v. Howard, 224 Ark. 1011, 278 S. W. 2d 118 (1955). Fisher possessed by way of equipment one secondhand truck of ancient vintage; Howard’s rolling-stock consisted of a truck, three tractors, and four semitrailers. Howard maintained a terminal at Pine Bluff; Fisher operated from his home. In the thirteen months prior to the Commission’s hearing in the Howard case, Howard transported thirty-nine shipments into most of the counties in which he was authorized to operate; in a two-year period, Fisher made only four trips under his permit authority.

Finally, I cannot agree with the majority that “when the evidence is evenly balanced the Commission’s views must prevail.” That statement is taken from an opinion written by Chief Justice Griffin Smith. Boyd v. Arkansas Motor Freight Lines, 222 Ark. 599, 262 S. W. 2d 282 (1953). The statement is clearly dictum. It weakens the salutary attempt of the majority opinion to clarify our scope of review. Furthermore, I cannot conceive it to be the law; in hearings before the Commission, one of the parties has the burden of proof. How can we say the burden is met “when the evidence is evenly balanced?”

Harris, C. J., and George Rose Smith, J., join in dissent.


author: J. Fred Jones, Justice.

text:
    Carl W. WIDMER v. KENNEDY, ALBERS & PHILLIPS, Inc.
    5-4371
    421 S. W. 2d 609
    Opinion delivered November 20, 1967
    [Rehearing denied December 18, 1967.]

      Carl W. Widmer; pro se.

      Warner, Warner, Bagon & Smith, for appellees.
   J. Fred Jones, Justice.

Appellant was sued for debt on open account in the Sebastian County Circuit Court by complaint filed on March 28, 1966, and summons was issued and served on the same date. On April 15, 1966, appellant filed a motion in abatement of the complaint to quash summons and set aside service thereof for the reason that the summons was not issued, served, or returned according to law and is wholly insufficient as a writ of process, and therefore no action had been commenced against the appellant. This motion is designated:

“SPECIAL APPEARANCE OF DEFENDANT MOTION TO ABATE COMPLAINT; TO QUASH SUMMONS AND SET ASIDE PURPORTED SERVICE THEREOF.”

Appellant appeared specially for the purpose of this motion and on May 4, 1966, the motion was overruled and appellant was given ten days to plead further.

Instead of pleading further as authorized and directed by the trial court, the appellant, on May 12, 1966, filed another motion almost identical to the one that had been overruled by the court only eight days before. This second motion is designated:

“SPECIAL APPEARANCE OF DEFENDANT MOTION TO VACATE ORDER OVERRULING DEFENDANT’S MOTION TO ABATE COMPLAINT; TO QUASH SUMMONS AND SET ASIDE PURPORTED SERVICE THEREOF.”

On February 8, 1967, answers to request for admissions were filed by the appellees, but no further pleading was filed by the appellant subsequent to his motion which was overruled, and his motion to vacate the order overruling the motion.

On February 13, 1967, appellant was advised by letter from the trial judge that the motion to vacate the order overruling the motion to abate and quash, was also then being overruled.

The appellant made no effort to plead further and on March 8, 1967, default judgment was rendered against him and a nune pro tunc order was also entered overruling the motion to vacate the order overruling the motion to abate complaint and quash summons.

On April 4, 1967, appellant filed a motion to vacate the default judgment for the reason that “no factual or statutory basis exists to support same and no default exists,” and to “vacate the nunc pro tunc order filed March 13, 1967, for the reason that order was not handled in manner prescribed by ‘Rules for the Twelfth Judicial Circuit.’ ”

This motion was also overruled on April 11, 1967, and on his appeal to this court the appellant designates the following points for reversal:

“1. That the trial court erred in not granting appellant’s ‘motion to abate complaint; to quash summons and set aside purported service thereof;’ and in turn for not granting appellant’s ‘motion to vacate order overruling defendant’s motion to abate complaint; to quash summons and set aside purported service thereof.’
“2. That the trial court erred in granting default judgment, and in turn, for not granting appellant’s ‘motion to vacate default judgment entered on March 8, 1967, and nunc pro tunc order filed March 13, 1967.’”

Ark. Stat. Ann. § 27-301 (Repl. 1962) provides as follows :

“A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to be issued thereon, and placed in the hands of the sheriff of the proper county or counties.”

This provision simply means what it says. See (Burks v. Sims, 230 Ark. 170, 321 S. W. 2d 767).

Ark. Stat. Ann. § 27-1101 (Repl. 1962) is as follows:

“The pleadings are the written statements, by the parties, of the facts constituting their respective claims and defenses.”

Ark. Stat. Ann. § 27-1103 (Repl. 1962) is as follows :

“The only pleadings allowed are:
First. The complaint by the plaintiff.
Second. The demurrer, or answer, by the defendant.
Third. The demurrer, or reply, by the plaintiff.”

When appellant’s motion was overruled and he was given ten days in which to plead further, he was obligated to plead further within the ten days or risk the consequences of judgment on the complaint.

We conclude that “ pleading further” simply means (as defined in Ark. Stat. Ann. § 27-1101, supra), and (as allowed in Ark. Stat. Ann. § 27-1103, supra) in addition to what has already been filed, and we hold that when a “motion to abate complaint; to quash summons and set aside purported service thereof” has been overruled and additional time is given in which to plead further, an additional motion to vacate the order overruling the original motion and restating the original motion, is not a further plea as defined and allowed by statute and within the meaning of the phrase “plead further.”

Circuit courts are designed for the serious business of settling disputes between individuals, and circuit judges are vested with considerable discretion in promulgating and enforcing court rules for the orderly conduct of the courts’ business.

As we are unable to say that the trial court erred on either of the points raised by the appellant, the judgment of the trial court is affirmed.

Affirmed.


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

text:
    Frank UEBE v. Troy F. BOWMAN et ux
    5-4338
    420 S. W. 2d 889
    Opinion delivered November 20, 1967

      Fitton & Meadows, for appellant.

      Moore & Brockman, for appellees.
   Conley Byrd, Justice.

This litigation is between two long-time friends and neighbors, appellant Frank Uebe and appellees Troy F. Bowman et ux. At issue are the questions whether Uebe’s holding over under a lease constituted an election to exercise an option to extend the lease, and whether the contractual requirement of advance payment of rental was waived by appellees.

The lease contract was entered into on February 14, 1947, for the use of water from a spring to operate a canning factory. The clause in issue provides:

“That for said consideration the right herein conveyed shall continue unto the party of the second part, his heirs and assigns for a fixed period of 16 years from this date, with the option to the party of the second part, his heirs and assigns, to continue said right in fall force and effect by the payment of the snm of $25.00 annually, payable in advance.”

The facts show that Uebe and Bowman, in a neighborly fashion, have from time to time exchanged labor and assistance to each other. The Bowmans at times have borrowed money from Uebe, purchased feed from him, and used his hay baler. In addition, Bowman sometimes worked for Uebe at the canning factory, at which times Uebe paid Bowman by cash or check. All other dealings between the parties were settled annually. Both parties testified to a settlement of their dealings after February 4, 1963, the expiration date of the 16-year lease, without mentioning or giving credit for the $25 annual payment provided in the lease agreement. In fact, Uebe testified that he was not aware that the lease was up that year or that the payment was due. There is testimony by Bowman that a settlement was had again in 1964. There is also testimony by Uebe that Bowman owed for hay baling, a hay baler and other items for which Uebe considered himself entitled to a set-off against any of the $25 payments due under the contract. Bowman disputes some of the items and admits other items. He acknowledges that he owes $25 for the old hay baler vdiich he bought in December 1964, and that he owes for the use of a truck in hauling some hay.

After February 4, 1963, the expiration date in the lease, Uebe continued to use the water from the spring as before, and Bowman made no complaint or comment about it until Uebe transferred the canning factory to a cooperative which he had organized in 1966. Sometime during the busy canning season of 1966, Bowman went by the canning factory to talk to Uebe about the spring, but Uebe suggested they discuss it at another time because he was too busy. Subsequently, on August 9, 1966, Bowman caused to be served upon Uebe a “Notice in Unlawful Detainer,” notifying Uebe to quit and deliver np the spring property occupied by bis pumping equipment. Uebe then filed this suit in chancery court making the contentions herein.

In contending that his holding over amounted to an election to exercise his option to extend the lease, Uebe relies on Riverside Land Co. v. Big Rock Stone & Material Co., 183 Ark. 1061, 40 S. W. 2d 423 (1931). We think the Big Roch case is distinguishable from the facts here because in the Big Roch case the lessor continued to accept payments under the lease and, after the issue concerning increased rental arose, negotiated an increased rental which it continued to accept from sometime in 1923 until 1930, when Big Rock gave the required notice under the option to extend the lease.

In Heyden v. Barnsdall Refining Co., 192 Ark. 789, 94 S. W. 2d 709 (1936), the lessor contended that Barnsdall, who held under a five-year lease, exercised its option of renewal by holding over a few months after the expiration of the five-year period. We there held that the holding over did not constitute an exercise of the option of renewal, and in distinguishing the Big Roch case, supra, pointed out that had the renewal clause “been a covenant to extend the lease without the performance of a condition precedent, a holding over may have extended same as a matter of law.”

When the option to extend here involved is read in its entirety, we hold that the trial court properly construed the provision for a payment “of the sum of $25 annually, payable in advance” as a condition precedent to the exercise of the extension. Since Uebe admittedly did not perform the condition precedent prior to the expiration of the 16-year period on February 4, 1963, we hold that his mere holding over did not constitute an extension of the lease under the option.

Nor can we find a waiver of the condition precedent to the extension of the lease. While the annual balancing of accounts between tbe parties for 1963 and 1964 depended to some extent on the recollection of each party with reference to time spent, material delivered, work done and payments made, neither party contends that the $25 payment was discussed or credit given or accepted for the same. Nor was the $25 payment subsequently accepted, as was the- situation in the Big Rock case, supra.

Appellant makes the further contention that there was no repudiation or abandonment of the lease and that the nonpayment of rent is not a cause of forfeiture. We hold this contention to be without merit. The issue is not whether there is a repudiation or a forfeiture of the lease but whether in fact appellant had exercised his option to extend the written lease. We think there is a clear distinction between forfeiture of an existing lease for failure to pay the rental and failure to exercise an option of extension by failing to perform the condition precedent of paying the rental in advance.

Affirmed.

Harris, C. J., and Fogleman, J., dissent.

John A. Fogleman, Justice,

dissenting. I cannot agree with the result reached by the majority in this case. While I have no particular quarrel with the holding that the payment in advance is a condition precedent to the right to renew or extend the lease, it is my opinion that appellees have effectively waived their right to terminate for appellant’s failure to comply with the condition.

Waiver occurs upon the failure to assert one’s known right. In the present case, the agreement created a lease' for the term of 16 years, with a perpetual option to renew or extend, exercisable by advance payment of the annual rental. Upon the expiration of the original 16-year lease period, it was incumbent upon appellant to pay the next year’s rent in advance in order to “continue” the lease “in full force and effect.” In such a case, failure of a lessee to make the required payment in advance would entitle a lessor to declare the lease at an end. Failure of a lessor to assert this right would amount to a waiver thereof. There no longer being any condition to the continuation of the tenancy, the lessee’s holding over and the lessors’ recognition of the lessee’s rights under the lease would operate to continue the lease.

I do not feel that the case of Riverside Land Co. v. Big Rock Stone & Material Co., 183 Ark. 1061, 40 S. W. 2d 423, can be distinguished from this case. Each involves a condition precedent to the extension of the lease, the condition there being the requirement of thirty days’ written notice. While it is true, as the majority opinion indicates, that there the lessee continued to pay, and the lessor to accept, the agreed rental, the performance of this covenant was significant only insofar as it showed that the lessor did not intend to require compliance with the condition precedent, i. e., the notice requirement. Here the advance payment of rent is itself the condition precedent. Other factors must be looked to in order to determine whether waiver of this condition has occurred. Thus, it becomes important to determine the effect of holding over on such a condition.

I do not agree that the case of Heyden v. Barnsdall Refining Co., 192 Ark. 789, 94 , S. W. 2d 709, is precedent for the proposition that a lessee’s holding over can never amount to an exercise of an option to renew or extend. The opinion in that case only said that the mere holding over for a few months would not constitute, as a matter of law, a renewal of the lease. The court went on to say that, on the facts, the trial court’s finding (that there had been no holding over) could not be said to be against the preponderance of the evidence. Certainly, if the facts had shown clearly that there had been a holding over, this factor could have been considered in determining whether the option had been exercised.

Whether the appellant’s holding over be considered a means of exercising the option to renew or a factor in determining if waiver of the condition precedent has occurred, the result in the present case would be the same.

Although the chancellor has found, as a matter of fact, that there has been no waiver of the condition precedent, this case is to be reviewed de novo. The chancellor’s determination, while not to be lightly regarded, is not binding on this court. A review of the evidence indicates clearly that the lessors, by their recognition of the tenancy after February 4, 1963, effectively waived their right to stand on the condition precedent. The record, with regard to the issue of waiver, shows the following facts which appellees either admitted or failed to deny on rebuttal:

1. That Uebe’s use of the spring has been continuous and uninterrupted from the inception of the lease contract until Bowman’s objection in the spring of 1966, which was three years after the expiration of the original 16-year period.
2. That when Uebe told Bowman that the latter owed him for the hay baler, he also mentioned to Bowman that this was to be payment on the contract.
3. That Bowman, in 1966, told a fellow worker the lease had been expired for two or three years. That he “thought he could get along with Uebe, but he didn’t know if he could get along with this board of directors that was on this cooperative.”
4. That when Bowman first approached Uebe in the spring of 1966, he intended only to determine the extent to which he (Bowman) was restricted in his use of the land surrounding the pump.
5. That Bowman helped Uebe repair his pipe line when it was damaged.
6. That the Bowmans, on separate occasions in 1965, had warned others about using the pump without the permission of Uebe.

The combined effect of these undisputed facts is to show that, although lessors knew of their rights under the lease contract, they nevertheless made no objection for over three years, during which period they continued to recognize the lease to be in effect. Such recognition of the lessee’s rights under the lease, together with the failure of the lessors to assert the condition precedent and declare the lease to be at an end, clearly demonstrates that the condition has been waived. Thus, the finding of the chancellor in this regard is clearly against the preponderance of the evidence.

I would like to make clear my position on this flatter by way of summary. My view is that the condition 'precedent has been waived, the condition, of course, being the required advance payment. I by no means intend to convey the idea that the Bowmans are not entitled to the agreed rental. The requirement of advance payment constitutes both the condition precedent and a covenant to pay rent. The covenant to pay rent is separate and distinct, and is not waived. But the requirement that it be made in advance was clearly waived. When the similarity between this requirement and the requirement of thirty days’ written notice in the Riverside Land Company case is noted, it seems clear that the requirement of advance payment, being a condition precedent, may be waived on a proper showing of facts. I believe that such a showing has been made.

The effect of the majority opinion is to preclude a finding of waiver of a condition precedent to a lessee’s right to renew or extend in any case where the rental has not been paid. I can see no reason to attach such controlling significance to the performance of this covenant. My view is that, where there are other factors indicating that the lessor intentionally fails to assert a known right, there may be a waiver of the condition precedent, whatever it may be, even though the rental covenant is not performed.

I would reverse and remand for entry of a decree consistent with this opinion.

I am authorized to state that Harris, C. J., joins in this dissent.

      For the purposes of this appeal, it is not necessary to consider the extent of the waiver or the effect of the tender of the 1967 rent by appellant.


author: Carleton Harris, Chief Justice.

text:
    GEORGIA-PACIFIC CORP., self-insured employer v. Elsie CRAIG et al
    5-4351
    420 S. W. 2d 854
    Opinion delivered November 27, 1967

      Paul Sullins and W. D. Rothwell, for appellant.

      Switzer & Griffin, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. Mallie Craig, age 55, an employee of Georgia-Pacific Corporation and its predecessor, was a crew leader of the bridge crew, operating a pile driver on the job, and acting as foreman when the regular foreman was absent. His normal working hours were 7:00 A.M. to 4:30 P.M. On March 31, 1966, he began his work at the usual time, worked throughout the day, and was on his way back to Crossett to .make the 4:30 P.M. quitting time, when he was met by the foreman, and requested to go to a forest fire in Drew County, approximately twenty-five miles away. He arrived there between 5:30 and 6:00 P.M., and left after the fire was extinguished to return home. He arrived at his residence sometime before 11:00 P.M., soon thereafter became ill, and was taken to the Crossett Health Center. At 2:40 A.M., on April 1, he was pronounced dead by Dr. W. A. Regnier, a physician of Crossett. The death certificate, signed by the doctor, stated that Craig’s death was caused by a massive coronary occlusion, due to arteriosclerosis. Mrs. Elsie Craig, the widow, filed a claim with the Arkansas Workmen’s Compensation Commission on behalf of herself and her minor daughter, Vicki. Dr. Regnier testified at a hearing before the referee, and at the conclusion of the hearing, compensation was awarded. Appellant appealed to the full commission, and there offered the deposition of Dr. Drew F. Agar, a Little Rock internist. The commlsson affirmed the referee’s award, and on appea1 +o the Circuit Court of Ashley County, the commission was affirmed. From the judgment so entered, appellant brings this appeal.

Fellow workers on the bridge crew testified relative to their normal duties, and also the work required in extinguishing the fire. No one testified that he observed Craig engaging in any particularly strenuous activity. Mrs. Craig testified that her husband had never missed more than one day of work due to sickness for the nineteen years that he had worked for the company. She said, however, that he had gone to Dr. Regnier; that “he was bothered with his heart, and he would get awfully tired, and he said the truck would just about shake him to death, especially when they’d be on those long hauls down in Louisiana, lots of times way up in Drew County.” Claimant testified that on March 31, her husband arrived home about 11:00 P.M., dirty and smutty, and went straight to the bathroom to take a bath. When she advised that his supper was ready, he replied that he did not want any supper, that he had already eaten a sandwich and drunk a coke, and that his chest was hurting. She stated that he thought it was probably indigestion caused by the sandwich. Shortly thereafter, he went to bed, but got up within a few minutes, walking back and forth, and she asked if she should call a doctor. He declined, saying that “maybe it will wear off in a few minutes.” After a while, Craig remarked that he was ‘ ‘ deathly sick. ’ ’ Mrs. Craig testified:

“* * # And I just ran out to the utility room and got a little ole plastic pail we had out there and ran back into the bed; then I ran to the bathroom and got a wash cloth and when I got back to him I started to bathe his face and when I did he just slumped over to the floor. Well, I called Don, my son, he was sleeping or had laid down up in the front bedroom, he hadn’t gone to sleep, and I run in there and called him and of course we called Doctor Regnier and called the ambulance and carried him to the hospital but he was dead on arrival. I found out later that he died in the bedroom, that he didn’t live to get on the stretcher.”

Dr. Regnier testified that in October of 1964, Craig had complained to him that his heart was bothering him; that Craig’s death was due to a massive coronary occlusion due to arteriosclerosis from which Craig had suffered for about five years. He stated that it was his opinion that the work performed by Craig from 7:00 A.M. until his return to Crossett was a contributing cause to his death.

Dr. Agar was furnished with a copy of the transcript of the hearing before the referee, and he said that, from the testimony, he could see no causal relationship between the activity Craig was engaged in and his subsequent demise.

Appellant mentions that there was no evidence that Craig was ill at any time during the day, and that, on leaving his fellow employees to return home after the fire, he stated, “I’ll see you hoys in the morning.” It is pointed out rather vigorously that Dr. Regnier was far from emphatic in his testimony, and that he would only say that the work may have contributed to the attack; further, he would not say that the attack started on the job; also he admitted it was possible that Mr. Craig could have died if he had not worked in a week. Appellant emphasizes that Regnier could not pinpoint any particular work that might have contributed to the attack, nor would he absolutely say that the attack was hastened by the number of hours Mr. Craig worked on the day under discussion. The doctor did say, however, that he did not believe he would have the same opinion if Craig had only worked five hours that day.

It is true'that Dr. Regnier’s testimony is not as positive as that in some other cases that have been before the court, but it does appear that the doctor was being as conscientious as possible in making his answers. It is evident that he held the opinion that the activities of the day, particularly the long hours, hastened the attack. From the cross-examination:

“Q. So you cannot say or not say whether or not the day that he spent was a contributing factor to his death?
A. In my personal opinion I think it did.”

Of course, in this type of case, a doctor can hardly be exact in his testimony. In fact, there are many such instances in the medical field. In U. S. Fidelity and Guaranty Company v. Dorman, 232 Ark. 749, 340 S. W. 2d 266, this court, quoting from an earlier case, said:

“ ‘Appellant insists that Dr. Monroe’s testimony is speculative, since he admitted the possibility that death was due to some other cause. But medicine, like the law is not an exact science. If mathematical certainty were required, a surgeon would act at his peril in advising his patient to undergo an operation. The law does not compel adherence to a standard so precise. The effect of Dr. Monroe’s testimony is that in his opinion the most probable cause of death was a pulmonary embolism attributable to the fractured leg.’ ”

Here, though unable to pinpoint the work, or the exact number of overtime hours that would have contributed to the heart attack, Dr. Regnier, like Dr. Agar, gave his best opinion after acquainting himself with the history and the facts deemed pertinent. Doctors are experts in their field, and as pointed out in Dorman, it is for that reason that they are permitted to express an opinion.

The commission took the view of Dr. Regnier, and, when all the facts are considered, we are not willing to say that there was no substantial evidence to support the award.

Affirmed.

        American Life Insurance Company v. Moore, 216 Ark. 44, 223 S. W. 2d 1019.


text:
    Frances MABRY et al v. Dan MABRY
    5-4365
    420 S. W. 2d 856
    Opinion delivered November 27, 1967

      Francis T. Donovan, for appellants.

      George Hartje Jr., for appellee.
   Carleton Harris, Chief Justice.

This is a child custody case. On July 16, 1963, Daniel L. Mabry, appellee herein, was granted a divorce on a cross-complaint from his wife, Winona Mabry, and was given custody of the three minor children born to the parties, Danny Mabry Jr., Steven Mabry, and Ronald Mabry. In late 1966, the oldest boy, Danny, ran away from home, and went to live with his mother in Carterville, Illinois. In January, 1967, Mrs. Wilma Mabry, age 64, and mother of Daniel Mabry, and Frances Mabry, sister of Daniel, petitioned the court for custody of Steve and Ronnie, asserting that their son and brother (appellee) had subjected the minor children to repeated and unnecessary whippings, these whippings occurring for ridiculous reasons, and they alleged that great mental damage was being done the children thereby. The petitioners, appellants herein, who live in Jacksonville, Florida, desired that the boys be removed from their present environment, and placed with appellants. Before this petition was heard, Steve also ran away from home and joined his mother and brother. Thereafter, the court conducted a hearing on the petition, and found that as between petitioners and the father, the latter was entitled to the custody of Bonnie. From the decree so entered, appellants bring this appeal.

The two older boys testified that their father would become angry, and whip them with a belt over the entire body. Each had a paper route, and each testified that if he were late getting back from the route, a whipping would be administered, and the same would occur if the boys were late from school. Danny testified that he earned about $40.00 per month on his route, and that his father and stepmother always took the money, leaving him only enough to pay for his lunch. He stated that his father hit him with his fist on one occasion after accusing him of taking drugs. Steven testified that appellee treated him and his brother all right until he remarried, but that after that his father would get very angry, make a “big thing” out of small matters, and would whip them with his belt. “She [referring to stepmother] put him up to it, though.” He also testified that the young boy, Ronnie, had been whipped with a belt.

Emma Lasiter, 88 years of age, and great grandmother of the Mabry children, testified that she had seen bruises on their bodies, including “the print of the whip on them.” Mrs. Lasiter, on one occasion, called the sheriff to her home to view the boys; the officer stated that, as he remembered, there was a skinned place above the left eye on Steve, which the boy said had been placed there by the father.

Wilma Mabry, one of the appellants herein, lives in Jacksonville, Florida, where she is principal of Fair-field School. She testified that she earned about $10,-000.00 per year. Mrs. Mabry had no personal knowledge of what might have happened in the home, acquiring her information from Steve, who, according to the witness, was extremely nervous, upset, and unsure of himself, and she said he cried during the whole time he told her about the situation at home. Dr. Ann R. Poin-dexter, who specializes in pediatrics, and is employed at the Arkansas Children’s Colony, testified as to the effect of home brutality on the mental and physical development of children. She had no personal knowledge of alleged events, expressing her opinion from having read the depositions. Frances Mabry, the other appellant, who lives in the home with her mother, Wilma, testified that she visited her brother (appellee) at his home, and on one occasion, heard him and his wife discussing the fact that Danny had bent his bicycle wheel. She said her brother started hollering at Danny, stating that the latter had taken the bicycle out and bent it on purpose. Miss Mabry said that she defended the boy, asserting that, in her opinion, the weight of the newspapers carried by Danny in the bicycle basket had bent the wheel.

“* * * So when I. said that, Dan tore into me. Said for me to shut my face and go back where I came from, that I had no right to he there. And started wagging his finger in nay face and coming at me. And he had these big blaring eyes, had a sort of glassy look in his eyes. And then he started shoving me backwards three or four times pretty hard and I felt like he was trying to knock me down, although he didn’t. And he more or less turned his temper, this tirade or whatever it was that he’d started on Danny, because I had defended Danny, and he turned it on me.”

Mrs. Delma Turner, whose husband is the uncle of appellee’s first wife, testified that the boys appeared to be emotionally disturbed when they would come to her home, and she said they had told her of their unhappiness. Mrs. Turner testified at length, but most of her testimony related to what had been told her by the younger boy, Steve. Here, again, the witness had no personal knowledge of what had happened in the home, having acquired her information from the boys.

Appellee testified that, as to the bicycle, he had told Danny three times during the week to get the bicycle fixed; on another occasion, an acquaintance advised that the oldest boy had thrown bricks at a horse, cutting a large gash in the animal’s head. A neighbor complained that the boys were throwing rocks at children, and he had punished them for these, and similar offenses. The father testified that they were supposed to get up around 4:00 o’clock as a matter of preparing to go on their paper routes, but he discovered that on one occasion, they had already left the house at 2:00 A.M., and on another occasion, they were gone at 2:30. When he asked as to the reason, their reply was that they were “just riding around town. Just riding around, was all they said, on their bicycles.” Mr. Mabry is vehicle dispatcher at the Little Rock Air Force Base, and he readily stated that he had used a belt on the two larger boys after they “got too big” to be spanked. He denied any brutal whippings, but did say that he accidentally hit Steve in the face, which was caused by the boy squirming and trying' to g’et away from him. As to the paper routes, he testified that he had whipped them for coming in an hour or an hour and a half late. He stated that he had spanked the youngest boy for such incidents as talking in church and playing in the commode. Mrs. (rienda Mabry, appellee’s wife, testified that she loved the hoys and that her husband always tried talking with them before inflicting any whipping. She said that at one time he whipped them for going inside the hospital and drinking cokes instead of coming straight home from their paper routes. She also mentioned that Mr. James Cox, the Gazette agent in Faulkner County, had come to the house on one occasion, because the hoys had not shown up to deliver papers, and he thought they had overslept. As a matter of fact, they had already left, and on returning home, stated “they were riding around looking at some tractors or something.” At another time, Cox came over about 4:30 looking for them, and again, around 5:15. She testified the hoys gave no explanation of what they had been doing.

Mr. Cox testified that he had received “more than average” complaints about the boys delivering the papers late, and he added that they left their employment without ever giving any notice to him that they would not be back.

Appellants point out that this court has stated that the controlling consideration in all custody cases is the child’s-best interest and welfare. Powell v. Woolfolk, 233 Ark. 893, 349 S. W. 2d 657, and cases cited therein. We agree that appellants, in that respect, state the law correctly, but the difficulty in the present instance is in determining just what is for the best interest of the child.

The entire argument of appellants is based on the alleged brutality of the father toward the two older boys. Of course, no normal human being would condone unmerciful or brutal beatings of a minor, but on the other hand, we think unquestionably that a parent has the right to properly discipline his child. Those who testified to personal knowledge of brutality were the two older boys themselves, and the great grandmother. The other witnesses based their opinions largely on what they had been told by Danny and Steve. The boys expressed resentment over several matters, Danny stating that he would rather live with his mother because he received “better treatment * * *. She'will let us have any money we make, and will let us go places, and she doesn’t whip us all the time like he did. In fact, she’s never whipped us.” Steve testified that he preferred to live with his grandfather and stepgrandmother, Ron and Gerrie Mabry (who are not parties or witnesses in this case). “They treat me nice, but when I do something bad wrong, they don’t whip me but they scold me. It is better than getting a whipping.” There is nothing unusual in this testimony. Probably most teenage boys would prefer to keep their money or be “scolded” rather than whipped when they do something “bad wrong.” The testimony of the great grandmother was to the effect that she had seen bruises and marks on the boys (which they said were caused by their father whipping them) but the testimony of the sheriff, who was called to the home by Mrs. Lasiter does not indicate that he was very concerned over her charge of brutal treatment. It does appear that the boys were, on some occasions mentioned in the testimony, due to be disciplined.

The strongest circumstance for appellants in this case is that the petition is filed by the mother (and sister) of appellee — and mothers normally “stand up” for their children. Still, there are instances of litigation between parents and their children, and when this happens, feelings become intense.

In Wilson v. Wilson, 228 Ark. 789, 310 S. W. 2d 500, we used language that is quite pertinent to this case:

“The chancellor saw and heard the witnesses, and all the parties to the litigation, and evidently saw the child, as the testimony reflects she was present. We know of no type of case wherein the personal observations of the court mean more than in a child custody case. The trial judge had an opportunity that we do not have, i. e., to observe these litigants and determine from their manner, as well as their testimony, their apparent interest and affection, or lack of affection for the child. ’ ’

In fact, that case was similar in another respect to the present litigation, in that the dispute over custody was between a father and a stepmother on one side, and grandparents on the other. We affirmed the Chancellor who awarded the child to the grandparents for a period of six months in one of the few instances where this has been done. However, the facts were vastly different, nine witnesses, seven of them disinterested, testifying that the child had not been taken care of, some stating that the little girl “looked starved * * * her little ribs sticking out,” one testifying that she was so poor and skinny that he did not recognize her; the others testified to similar facts. In a four to three opinion, this court affirmed the Chancellor’s action in giving the custody to the grandparents for six months, but we said:

‘ ‘ Our thinking in this matter is influenced to a great extent by the fact that the order is only temporary.”

Of course, all. things being equal, a parent has, and should have, paramount rights to the custody of his or her child.

In summary, we cannot say that the Chancellor’s finding was clearly against the preponderance of the evidence, and we are unwilling to substitute our judgment for that of the trial court.

Affirmed.

      At the time of the hearing on this petition, Danny was 16 years of age, Steve, 13, and Ronnie, 4.

      The court also found: “As to the two older children, Danny, age 16, and Steve, age 13, no decision is made, and the petition is dismissed. This is done because the children are not in the State of Arkansas and are not in the custody of either petitioners or respondent. The proof shows that the children are now with their mother, Winona Mabry, in Carterville, Illinois. A decree of this court fixing custody between the parties to the present action would be meaningless because Winona Mabry is not a party, the children are not before the court, and in any event, the court of whatever state the children may be in at the time will determine the question of custody based upon conditions at the time of such determination.”

      By deposition.

      He said, however, that the mark on Steve observed by the sheriff was caused by the older brother (Danny) hitting Steve in the eye with a clothes hanger.


author: George Rose Smith, Justice. John A. Fogleman, Justice,

text:
    Ellie PORTER, Ex’x v. Charles TRAINOR and Ed CAMPBELL, Ex’rs
    5-4370
    420 S. W. 2d 860
    Opinion delivered November 27, 1967

      Eugene L. Schieffler, for appellant.

      John L. Anderson and Patrick Reilly, for appellees.
   George Rose Smith, Justice.

At David Porter’s death on May 18, 1964, he held two promissory notes of $2,500 each, executed by James Carter and payable to David Porter alone. David was survived by his widow, Elizabeth Trainor Porter. The question here is whether the two notes, although payable to Porter alone, were actually owned by the couple as a tenancy by the entirety, owing to the fact that they were given for money that Porter withdrew from a joint bank account and lent to Carter. The probate judge found that there was in fact a tenancy by the entirety in the notes.

The proof is so meager that it may be quickly summarized. In 1960 the Porters had about $14,000 on deposit in a joint account in a West Helena bank. It is fair to say that both spouses had contributed to the account, but there is no way of determining what each one’s contribution was ("assuming that fact to be relevant). In July of that year David lent $5,000 to James Carter, drawing a check upon the joint account for the advancement and receiving in return from Carter the two notes payable to Porter, secured by a real estate mortgage.

Porter died testate almost four years later, in May of 1964. We attach no importance to the fact that his executrix, the appellant, did not inventory the notes as a part of his estate. Porter ?s widow, prior to her own death on March 18, 1966, had made no move toward recapturing the proceeds of the notes, which Carter paid off after Porter’s death. Later on, however, the executors of Mrs. Porter’s estate filed a motion in her husband’s administration proceeding, asking that the proceeds of the notes be declared to be the proprety of Mrs. Porter’s estate. This appeal is from an order granting that relief.

We think the court made a mistake. Only two of our earlier cases need be mentioned. In Union & Mercantile Tr. Co. v. Hudson, 147 Ark. 7, 227 S. W. 1 (1921), the husband, only 12 days before his death, wrongfully took funds belonging to him and his wife and deposited them in a bank account in his name only. We held that his conduct was a fraud upon his widow’s rights and that the funds belongéd to her, as the surviving tenant by the entirety. By contrast, in Dickson v. Jonesboro Tr. Co., 154 Ark. 155, 242 S. W. 57 (1922), we held that where the husband, “with the knowledge and consent of his wife,” withdrew funds from a joint bank account and used them to purchase securities payable to bearer, the tenancy by the entirety was destroyed, so that the wife was not entitled to the securities upon her husband’s death.

The controlling rule ,is so clear that we see no serious problem in the case at bar. Thei;e is no persuasive proof that David Porter defrauded his wife in writing a $5,000 check upon their joint account almost four years before his death. Counsel for the appellees argue with some ingenuity that the transaction was actually a renewal of an earlier mortgage debt payable to both Mr. and Mrs. Porter, but if that were so there was no reason for Porter to advance fresh funds instead of merely renewing the old debt. When we recall that the loan to Carter was made almost four years before Porter’s death, and that his wife had access to the bank’s records of the account, there is hardly even a plausible reason to suppose that Porter secretly defrauded his wife and concealed his wrongdoing until his death. Fraud must be proved.

In reaching our conclusion we have taken into account, as of course we should, the soundness of the precedent that is being laid down for the future. In our present-day society we know that millions of married couples utilize the convenience of a joint bank account, which under our law is a tenancy by the entirety. We also know that most husbands .and wives trust each other, confide in each other,, and conduct themselves with honesty and with honor in the management of then-property. It would be altogether undesirable to permit the rival heirs of the two spouses (who are the real parties in interest here) to reach far back into the past in an effort to raise a bare suspicion that one spouse may have cheated the other in the disposition of funds jointly owned. That sort of posthumous litigation is decidedly to be discouraged.

Reversed.

Fogleman, J., concurs.

John A. Fogleman, Justice,

concurring. I concur in the result and essentially agree with the basis for reaching it. I also agree that the record is quite meager, particularly with reference to the key issue. To me the key issue is whether the notes made payable to David Porter were made and accepted with the knowledge or consent of the wife. The rule that the destruction of a tenancy by the entirety is accomplished by the unilateral act of one of the tenants when the other has knowledge thereof and consents thereto is clearly established in. Dickson v. Jonesboro Trust Co., 154 Ark. 155, 242 S. W. 57. This rule was so essential to that decision that the opinion establishes the converse of that rule, i. e., that act of one of the tenants when the other has knowledge edge or consent of the other does not destroy the tenancy as between the parties.

The inference may be drawn from the majority opinion that fraud, on the part of the tenant withdrawing funds from a joint bank account held as a tenancy by entirety is essential to the retention of any interest by the other tenant after withdrawal. The primary importance of the finding of fraud in Union & Mercantile Bank v. Hudson, 147 Ark. 7, 227 S. W. 1, is that a third party bank was involved. Proof of fraud was essential to impress a trust on funds in his hands. It was alleged that the bank participated in the act of the administrator of the husband in treating the funds deposited in the husband’s name as an asset of his estate, without the knowledge or consent of the wife, even after notice from the wife that she claimed the funds. While the court did say that it was a fraud on her rights for the husband to have deposited the proceeds of a loan on lands held by the entirety without the knowledge or consent of the wife and that his actions constituted him a trustee of her interests, the essence of this statement is the rule in the Dickson case. So, even in the light of the Hudson case, the only real issue is whether Mrs. Porter had knowledge of, or consented to, the transaction as handled.

I believe that two statements made in the majority opinion are unwarranted, but I do not consider them to be determinative of the issues. I do not agree that the failure of the executrix to list the note in the inventory of the estate is of no importance. The husband’s executrix, appellant here, admitted that she had seen the deed of trust securing the note before she made the inventory she later filed. Nor do I think that the declaration that the wife had access to the statements of the joint bank account is supported by the evidence. There was a petition by the wife to require the executrix to turn over to her the statements of the joint bank accounts. The basis of -this request was her statement that she was claiming certain of the assets as her own property. Her mere access to the statements of the accounts is not of controlling significance, however. It is entirely plausible to believe that she knew of the loan and of the source of the funds loaned but did not know that the notes were made payable to the husband alone.

In spite of the lack of substance in these statements of the majority, I would reverse the case. I think that, when the executrix included this note as an asset in her accounting, the appellees had the burden to establish the title of their decedent (the widow) by a preponderance of the evidence. This accounting was filed several months prior to the death of the widow and the widow herself never questioned this item.

Since the asset in question was not listed in the inventory, having first appeared in the final accounting of the executrix, it was permissible for the personal representatives of the widow to file objections to this item. Ark. Stat. Ann. § 62-2808 (Supp. 1967). Upon hearing, there was a presumption that the notes were the property of the husband since they were made payable to him. Landis v. Landis, 343 Pa. 252, 22 A. 2d 908; 11 C.J.S. 91, Bills & Notes, § 659; 12 Am. Jur. 2d 214, Bills & Notes, § 1188. While this presumption alone is sufficient to place the burden of proof on an adverse claimant, appellees also bear the burden of sustaining an objection to the accounting of the personal representative based on a claim of ownership adverse to the estate. In re Kellas Estate, 38 N.Y.S. 2d, 197. This authority seems to be more than slightly persuásive because its result is based, at least in part, upon the New York rule that the adverse claimant has the burden of proof in a probate discovery proceeding. We have also held that in a hearing of a probate discovery proceeding, a widow who asserted an adverse claim to certain notes made payable to her and her husband, of which she had possession but had assigned to him, had the burden to establish her claim to ownership based on invalidity of the assignment. Hartman v. Hartman, 228 Ark. 692, 309 S. W. 2d 737. I consider this decision authority for saying that an adverse claimant in probate court has the burden of proof under the circumstances prevailing here, regardless of the stage of the proceedings at which the question arises.

I do not believe that the inferences to be drawn from the meager evidence offered by appellees are sufficient to sustain this burden of proof. On the contrary, inferences to be drawn from the relationship of the parties and other factors hereinabove set out clearly preponderate in this case. Strong inferences against the widow’s executrix may be drawn from the fact that the note was four years old and that Mrs. Porter took no affirmative steps to question the ownership of the note even after the accounting was filed, which was after the court granted her petition to have access to the bank statements.

I do not concur in some of the reasons given by the majority for reaching this result, but I would reverse the lower court on this failure to meet the burden of proof.

      Clearly the rights of third parties are not involved. If they were, perhaps a different result would be reached.


author: Paul Ward, Justice.

text:
    Frank “Sonny” DAVIS v. Henry M. BRITT, Judge
    5304
    420 S. W. 2d 863
    Opinion delivered November 27, 1967

      Holt, Park & Holt, for petitioner.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for respondent.
   Paul Ward, Justice.

The question here presented is novel, important and, insofar as we can ascertain, is without direct precedent in this State.

Briefly stated, the question is: Does the judiciary or the State Hospital have the authority to determine the “sanity” or the “insanity” of a person on trial for first degree murder? The material background facts out of which this question arose are set out below.

We now examine the statutes relied on to sustain this contention.

(1) Ark. Stat. Ann. § 41-108 (Repl. 1964), which reads:

“A lunatic, or insane person without lucid intervals, shall not be found guilty of any crime or misdemeanor with which he may be charged”.

(2) Ark. Stat. Ann. § 41-109 (Repl. 1964), which reads:

“An idiot shall not be found guilty or punished for any crime or misdemeanor”.

It is obvious from a casual reading of the above two statutes that they have no bearing on the question here involved. It is not an issue as to whether petitioner can be “found guilty” or “punished” but whether he can be “tried”.

(3) The statute which is the main support for petitioner’s contention is Ark. Stat. Ann. § 59-237 (Supp. 1965). The portion of this statute which is pertinent to the issue here reads:

“. . . when any person who has been informed against or indicted upon a felony charge and who has been committed to the State Hospital for a mental examination under [Ark. Stats. (1947) § 43-1301] and has been found to be insane, the Superintendent shall request a writ of commitment from the judge before whom the case is pending. The request for commitment shall be accompanied by a certificate from the medical staff of the State Hospital setting forth the facts as to the patient’s mental condition, and that he is insane; and thereupon the Court before whom the case is pending shall issue an order of commitment to the State Hospital. Thereafter such person shall be confined in the State Hospital until he regains his sanity.” (Emphasis ours.)

Petitioner, Frank “Sonny ” Davis, was charged with first degree murder. Upon arraignment January 30, 1967 petitioner entered a plea of “not guilty by reason of insanity”. Thereupon the trial court committed petitioner to the State Hospital for observation for a period not to exceed thirty days, as provided in Ark. Stat. Ann. § 43-1301 [Repl. 1964.]

On February 28, the Hospital made a written report to the court stating: ‘ ‘ Their diagnosis was: Manic Depressive Reaction, Manic type”, and that petitioner “was probably mentally ill to the degree of legal ire-responsibility at the time of the alleged commission of his acts”. The report also- recommended that the petitioner remain in the Hospital for treatment, and requested the court “to issue .a Writ of Commitment to give the Hospital the legal authority for the petitioner’s detention” under Ark. Stat. Ann. $ 59-237 (Supp. 1965).

On March 2, the court asked the Hospital to furnish a statement of its findings, which was done on May 5, but in the meantime the Hospital had asked the court for a commitment since, otherwise, it had no legal authority to hold petitioner.

The trial court refused to re-commit petitioner to the Hospital, and set his trial for August 10, 1967. Previously, however, this “Petition for a Writ of Prohibition” wherein this Court is asked to prohibit the circuit court from proceeding with the trial “until Petitioner has regained his sanity” had been filed.

Contention of Petitioner. It is the contention of petitioner that the trial court is legally bound to recommit him to the Hospital and that, therefore, it has no jurisdiction or authority to proceed with the trial. We call attention to the words first emphasized above which require interpretation. If they mean “found to be insane” by a trial court, then this petition must necessarily be denied because no such finding has been made by the trial court in this case. Necessarily, therefore, petitioner must have taken the position that the words mean — “found to be insane” by the Hospital personnel. We accept this interpretation, for the purpose of this opinion, as being correct because the statute also says the Writ is requested “from the judge before whom the case is pending”. It would appear evident that if the case is “pending” there would have been no final judgment.

We now call attention to the last sentence in the statute which gives the State Hospital the right to retain petitioner until “he regains his sanity”. At this point we also call attention to the fact that this is the exact relief which the' petitioner here requests.

Consequently this Court is called upon to answer the following question: Is a statute constitutional, which takes away from the judiciary and delegates to a branch of the executive department, the right and power to finally decide whether a person (charged with murder) is “sane” or “insane”? Our answer to the question is “no”.

Where a person charged with murder and enters a plea of insanity a fact question is presented, and this fact question should be, and has uniformly been, decided by a jury in a court of law. See: Duncan v. State, 110 Ark. 523, 162 S. W. 573; Wilhite v. State, 158 Ark. 290, 250 S. W. 31; Green v. State, 222 Ark. 308, 259 S. W. 2d 142, and; Downs v. State, 231 Ark. 466, 330 S. W. 2d 281. Numerous other cases to the same effect could be cited. Petitioner cites no decision of this Court or any court to the contrary, and our research reveals no such case.

Volume 32 of Corpus Juris at page 756, under the topic of “Insane Persons” deals with “Proof of Sanity or Insanity; Province of Court and Jury”. Among other things it is there stated:

“It is presumed in law that all men are sane, and the burden to prove insanity is on the person alleging it,” citing cases from sixteen different states.

There are two recent articles in volume 20 of the Arkansas Law Eeview, one at page 121 and the other at page 398, both dealing with the Burden of Proof of Insanity in criminal cases. The essence and effect of both discussions, insofar as they bear on the issue here, is to require “the defendant to establish his incapacity to the satisfaction of either the court or jury”.

It is our conclusion in this case; that the Hospital has no power or legal right to demand custody of petitioner for an indefinite time to be determined by it; and that the trial court cannot, at this stage of the proceedings, be forced to deliver petitioner to the Hospital.

Writ denied.