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

text:
    Gayle Ramage NELSON & William Robert RAMAGE v. TEXARKANA HISTORICAL SOCIETY and MUSEUM et al
    74-182
    516 S.W. 2d 882
    Opinion delivered December 16, 1974
    [Rehearing denied January 20, 1975.]

      Atchley, Russell, Waldrop & Hlavinka, by: Stephen Cohen, for appellants.

      Autrey & Weisenberger, for appellees.
   Lyle Brown, Justice.

This is a will contest case. The appellants are Gayle Ramage Nelson and William Robert Ramage, niece and nephew, and sole heirs at law of the testatrix, Maye Elizabeth Ramage Davis; the appellees are Texarkana Historical Society and Museum and State First National Bank of Texarkana, the special administrator. The probate court admitted to probate an instrument purporting to be the will of Maye Elizabeth Ramage Davis, a widow 78 years of age. The holographic instrument was not signed; the only place in the purported will where her name appeared was in the body thereof.

Appellants contend that decedent’s name appearing in the body of the instrument was not written with the intent of authenticating or executing such instrument and therefore it was error to admit it to probate. Appellees contend (1) the signature in the body of the will satisfied the requirements for validity, and (2) the court correctly considered extrinsic evidence to show decedent’s testamentary intent.

The instrument admitted to probate reads as follows:

Will December 18th 1973
I am in my sane mind today.
And I am leaving all my antiques in the living room, dining room and Victorian room and hall to Texarkana Museum in memory of my mother and father, W. R. Ramage and brother Robert Ramage and Maye Elizabeth Ramage Davis. I leave my little Pet Petite to my friend Waneeta Corzine phone — 832-3001 — no answer ring 832-1666. I want three hundred dollars taken out of my savings account at Commercial bank for Petites upkeep.
I want the house sold and money to pay any outstanding debts and for the upkeep of Antiques for Museum. I want my kitchen stove, frigidaire and everything in kitchen for Samantha Washington — my maid. I want my XL 100 television to go to Elnora Edwards my maid. I want all my jewelry a fifteen hundred dollar diamond ring all my jewelry and furs to Ethel Gandy my cousin and clothes — Montgomery Alabama. Address 3393 Lebrón St. Zip 36106.
Any money on savings pay my monthly bills.
Signed and Witnessed by (Signed) Nell Phillips
(Signed) Samantha Washington

Witness Nell Phillips, an antique dealer, testified as to her business dealings and many personal visits with the testatrix; that on December 18, 1973, the testatrix produced the will and asked Mrs. Phillips to witness it; and that she recognized the handwriting as that of the testatrix. Another antique dealer, Jack Cunningham, testified he saw the testatrix frequently; that he could identify the instrument as having been written in her handwriting; and that he discussed with testatrix the desirability of leaving her valuable collection of antiques to the museum. Cora Cook Thomas testified she and the testatrix had been good friends since high school days; that she could identify the will as being in testatrix’s handwriting; that testatrix had discussed with the witness the subject of a will and she told testatrix to have two witnesses. Catheline Cunningham, another friend of many years standing, testified she was aware that testatrix intended to leave her antiques to the museum; and that the will was entirely in the handwriting of Maye Elizabeth Ramage Davis. Appellant Gayle Ramage Nelson, niece and close neighbor of testatrix, testified that she had not been in the latter’s home for several years, conceding that she and testatrix were not very close, in fact indicated there was some feeling of animosity.

Elnora Edwards, who is mentioned in the will, cooked breakfast for the testatrix during the last eighteen months of the latter’s life; she said she was made aware that she would be remembered in the will; and that on the morning of December 20, testatrix said she had made her wilt and it was on top of the piano along with a list of pallbearers. Samantha Washington said she had worked for Mrs. Davis for some fifteen years. She said she witnessed the will on December 18; that Mrs. Phillips came in and witnessed it; and that testatrix told Ms. Washington to put the will on top of the pA.ic.

Under the provisions of our probate code of 1949, the signature of a testator need not be written at the end of the will. “Where the entire body of the will and the signature thereto shall be written in the proper handwriting oí the testator, such will may be established by the evidence of at least three credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there m ay be no attesting witnesses to such will.” Ark. Stat. Ann. § 60-404 (Repl. 1971). Smith v. MacDonald, 252 Ark. 931, 481 S.W. 2d 741 (1972).

If the testator’s name is written in or upon some part of the will other than at the end thereof, to be a valid signature it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will. 2 Bowd-Parker: Page on Wills, § 20.9; Estate of Kinney, 16 Cal. 2d 50, 104 P. 2d, 782 (1940). Thus our problem is to determine whether the name Maye Elizabeth Ramage Davis was placed in the body of the will with the intent that it constitute a signature in addition to the intention of creating a memorial. In the second paragraph of the will we find the only mention of testatrix’s name: “And I am leaving all my antiques ... in memory of my mother and ' ether, W. R. Ramage and brother Robert Ramage and Maye Elizabeth Ramage Davis.”

/. ijpeSIees rely heavily on our case of Smith v. MacDonald, uiipj'?«. uSot the facts in that case are far different from the facts ixt the case at bar. The first line in that will describes the in-struí -lent as the “Will of Julian Leland Rutherford.” The first paragraph recites: “I, Julian Leland Rutherford ... do hereby make, publish and declare this to be my last will and Aei--uent.” The last line of the instrument then recites: “Wkiucss my hand and seal this If day of July, 1970.”

I'l'-t have abstracted at some length the testimony of the wbnrmes. The most that evidence shows is that the instrument was in the handwriting of the testatrix and that she considered it as her will. It would be sheer speculation to assume that those circumstances indicated that she intended her name in the body of the will to be her signature thereto.

Oi led at length by appellees is the California case of In re Bloch’s Estate, 248 P. 2d 21 (1952). In that case the single location of the name of the deceased was in the body of the will; in disposing of some bonds the testatrix there referred to “Souds belonging to Helene I. Bloch.” The court held that reference to constitute a signature. We discussed Bloch in our case of Smith v. MacDonald. We did not adopt the decision but merely referred to it as a “very interesting case”. In fact we quoted with apparent approval from the dissenting opinion in that case of Justice Traynor:

Regardless of where the name may appear in the instrument, there is always the possibility, of course, that it was intended as a signature. The mere existence of that possibility, however, is not enough to permit a ¡reasonable inference that it was so intended. When the ¡name is used to identify the decedent as the author of the alleged will as in Estate of Kinney, 16 Cal. 2d 50, 104 P. 2d 782 (“I Anna Leona Graves Kinney, do bequeath all my possessions to my four sisters”) or to identify the instrument as decedent’s will as in Estate of Brooks, 214 Cal. 138, 4 P. 2d 148 (“This is my will — Elizabeth Ryan Brooks”), and in addition the instrument appears to be a complete testamentary document, it may reasonably be inferred that the name was placed where it was with the intention of executing the instru-r meet. In such cases the name is linked to the alleged testamentary act and the probabilities that it was intended as a signature are strong. In the present case, on the contrary, decedent’s name appears only in the description of her property.

The legislature had a sound basis for requiring that a holographic will be signed by the testator, because that signature is the best and most reliable indication that the signer means for the instrument to be his will. We think, and so hold, that to adopt the majority rule in Bloch would amount to writing the word “signature” out of the statute.

Reversed and remanded.

Fogleman, J., dissents.

John A. Fogleman, Justice,

dissenting. The majority opinion seems to be hinged, at least in part, upon Justice Traynor’s dissent in In Re Bloch’s Estate, 39 Cal. 2d 570, 248 P. 2d 21 (1952). I respectfully submit that we did not cite this dissent with approval in Smith v. MacDonald, 252 Ark. 931, 481 S.W. 2d 741. We commented that Bloch was an interesting case, and that the dissenting opinion was of value in pointing out distinctions. We were discussing the California rule as set out in In Re Manchester’s Estate, 174 Cal.. 417, 163 P. 358 (1917), which we had been urged to adopt by the unsuccessful appellant. The Manchester rule was quoted as follows:

The true rule, as we conceive it to be, is that, wherever placed, the fact that it was intended as an executing signature must satisfactorily appear on the face of the document itself. If it is at the end of the document, the universal custom of mankind forces the conclusion that it was appended as an execution, if nothing to the contrary appears. If placed elsewhere, it is for the court to say, from an inspection of the whole document, its language as well as its form, and the relative position of its parts, whether or not there is a positive and satisfactory inference from the document itself that the signature was so placed with the intent that it should there serve as a token of execution. If such inference thus appears, the execution may be considered as proven by such signature. [Emphasis mine]

From the discussion of these cases in the opinion in Smith v. MacDonald, supra, it is clear that California does not permit extrinsic evidence to show surrounding circumstances as an aid to the court in determining whether a testator who wrote his name in the body of a will intended to do so as a signature.

The concluding language in Smith v. MacDonald, supra, clearly shows that we did not adopt either the majority or dissenting opinion in Bloch and that we rejected in toto the California rule we were being urged to adopt. That language is:

Even if we should adopt and strictly apply the California rule announced in Manchester as urged by the appellants, the instrument signed by Rutherford would qualify as a holographic will subject to probate under the subsequent decisions of the California courts. But in this case Mr. Rutherford delivered the sealed envelope to his attorney and told him that it contained his will. All other evidence clearly indicates that when Mr. Rutherford delivered the instrument to his attorney, he had fully carried out his announced intentions of disposing of his property by will to the exclusion of the appellants. [Emphasis mine]
In Page on Wills, vol. 2, § 20.9, p. 294, is found the following:
“There is a conflict of authority concerning the admissibility of evidence of testator’s declarations and acts, together with surrounding circumstances, to determine whether his name which was written by him in the body of the will was intended as a signature. The weight of authority permits introduction of such evidence for the purpose of determining the intention with which testator wrote his name.”
We conclude, therefore, that the trial court did not err in admitting the instrument to probate as the last will and testament of Julian Leland Rutherford, and that the judgment of the probate court should be affirmed.

This clearly put us in accord with the weight of authority, but it seems to me that the majority is now willing to adopt the California rule. I concede that under the California rule the Davis will should not have been admitted to probate, even though the Bloch majority would have required that it be. I submit also that the Bloch will would have been subject to probate if extrinsic evidence such as that presented here had been admitted. 1 would not recede from the rule obviously adopted by us in the rather recent case above cited and would examine this instrument in the light of the prevailing circumstances.

First, we must consider the findings and conclusions of the probate court. Those significant are:

The Decedent left as her Last Will a written instrument dated the 18th day of December, 1973. The entire body of the Will and the signature thereto was in the proper handwriting of the Testatrix, and this was established by the testimony of four (4) credible disinterested witnesses to the handwriting and signature of the Testatrix and other evidence before the Court.
(1) That the said handwritten instrument dated December 18, 1973, described above and heretofore filed herein be admitted to probate as the holographic Will of the Decedent, Maye Elizabeth Ramage Davis;
(2) That the said holographic Will of the Decedent was executed in all respects according to law when the Decedent was competent to do so and acting without undue influence, fraud or restraint;

Unless appellees failed to meet their burden of proof or these findings are clearly against the preponderance of the evidence, we should affirm the judgment. What then were the surrounding circumstances shown by the extrinsic evidence?

The entire instrument was written in the handwriting of Mrs. Davis. Its entire content is testamentary in nature. It is a complete testamentary document. It contains at the end the words “Signed and witnessed by”, not the words “signed by and witnessed by”. The testamentary provisions are all in the first person. Mrs. Davis was the only surviving child of the person named by her in the instrument as her father. Her brother was Robert Ramage and he was named by her as such in the document. She had a dog named Petite. She had a friend named Waneeta Corzine, an employee of a veterinarian, and this friend frequently bathed and brushed the dog for her. She had indicated her total dependence upon Ms. Corzine for this care of the pet. Under this instrument this friend would not only get the dog, but a fund for the maintenance of this pet. Mrs. Davis recorded in the written instrument the telephone numbers by which Ms. Corzine could be reached. When she was lonely, she called this friend to talk about dogs.

Mrs. Davis was very interested and knowledgeable about antiques and would not dispose of any she owned unless she had run out of money. On the day the instrument was dated, she told Nell Phillips that she had made her will and asked Mrs. Phillips to sign it as a witness. She related to Mrs. Phillips that she was ill and her state of health was getting worse and that she wanted to make the will before she died or went to the hospital. Mrs. Phillips, an antique dealer, had previously suggested that Mrs. Davis leave her property to the Texarkana Museum. Approximately three weeks prior to the date of the instrument, Mrs. Davis, by telephone, discussed making a will with Jack Cunningham, another antique dealer. He also suggested that she leave her property to the Texarkana Museum, rather than her church.

Cora Cook Thomas, a lawyer’s daughter and longtime friend, had written her own will and had advised Mrs. Davis that it was in longhand. She also told Mrs. Davis what she should say in a will and to have two witnesses. On December 20, when Leola (Elnora) Edwards came to prepare breakfast, Mrs. Davis said she had made out her will and Mrs. Phillips and Samantha Washington, another servant, had signed it. Both of these servants were legatees under the will. This instrument, a list of pallbearers, and a statement about the writing of an obituary were kept together in the place where Mrs. Davis specifically directed that the testamentary document be placed and left.

Mrs. Davis was estranged from appellants, her only heirs at law, and had specifically stated that she did not want to leave her property to them because they had not done anything for her. The admitted facts show there was considerable justification for this feeling. This was not an unnatural will, but a very natural one.

Evidence of surrounding circumstances will inevitably be circumstantial as to the ultimate facts in a case such as this. The testimony about the circumstances in this case are undisputed. They lead to the logical inference that Mrs. Davis did treat her name in the body of the instrument as her signature to her will. If she had not so intended, it is highly unlikely that she would have written her full name instead of using the simple pronoun “me” or the word “myself”. Under all the circumstances, it seems to me that the trial court drew the only logical inference.

I would affirm the judgment.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Clara COLEMAN v. Cecil COLEMAN, Administrator
    74-192
    520 S.W. 2d 239
    Opinion delivered December 16, 1974
    [Rehearing denied March 17, 1975.]

      Thomas D. Wynne Jr. and Frank W. Wynne, for appellant.

      Novada C. Roberts, for appellee.
   John A. Fogleman, Justice.

The sole point for reversal of this will contest is stated thus:

Anderson Coleman’s second will is offered as a counterclaim, and therefore, the statute of limitation is not applicable.

The factual background and the issue on appeal are concisely stated by appellant. Appellee apparently concedes the correctness of this statement. It is as follows:

Anderson Coleman died on April 12, 1967. During his lifetime, he married twice. His first marriage was to Donar Coleman. On the 24th day of January, 1956, Anderson Coleman executed a will whereby Donar Coleman was to be devised certain property at his death. Donar Coleman pre-deceased Anderson Coleman and sometime after her death, Anderson Coleman married Clara Coleman. On the 4th day of November, 1966, Anderson Coleman executed a will whereby Clara Coleman was to be devised certain property at his death.
On April 10, 1972, Cecil Coleman, a son of Anderson Coleman, filed a Petition to Probate Will and Appointment of Personal Representative and proffered the first will of Anderson Coleman. This was one day short of the running of the five-year statute of limitation for filing of a will. Order for Appointment of Executor was made by this Court on April 11, 1972.
Clara Coleman, second wife of Anderson Coleman, was given Notice to Surviving Spouse on April 10, 1972. Clara Coleman then petitioned to set aside the first will and the Order appointing Cecil Coleman executor of the estate. Petition set out that a second will existed and revoked the first will filed by Cecil Coleman.
Cecil Coleman by Reply alleged that the statute of limitation had run against the will offered by Clara Coleman and should not be probated.
On May 16, 1972, Clara Coleman filed Petition for Probate of Will and Appointment of Personal Representative and proffered the will of Anderson Coleman dated November 4, 1966.
The court found that the second will of Anderson Coleman was not timely filed and that it was barred by the five-year statute of limitation. That the first will of Anderson Coleman was timely filed but when the second will was made the first will was revoked and that the estate of Anderson Coleman, deceased, would pass by descent and distribution.
It was therefore so ordered by the court.
Clara Coleman contends that this cause was not original with her and the second will proffered by her is the same as a counterclaim and that the statute of limitation does not run against the counterclaim.

A summarization of appellant’s argument is that the subsequent will offered for probate by her was not barred by the five-year statute [Ark. Stat. Ann. § 62-2125 (Repl. 1971)] because it was not asserted in an effort to obtain affirmative relief, but as a counterclaim against the will offered by Cecil Coleman. She contends that a counterclaim is not barred if pleaded as a defense to a cause of action asserted against the pleader, provided the counterclaim was not barred by the statute of limitations when that cause of action arose. A ready answer to this contention is that the counterclaim statutes [Ark. Stat. Ann. § 27-1121, 1123, 1124 (Repl. 1962)] have no application to a proceeding to probate or contest a will.

It is quite true that the Probate Code of 1949 provides that procedure shall be the same as that followed in courts of equity. Ark. Stat. Ann. § 62-2004 (e) (Repl. 1971). We have uniformly applied such procedures in probate proceedings since Werbe v. Holt, 217 Ark. 198, 229 S.W. 2d 225. See also, Umberger v. Westmoreland, 218 Ark. 632, 238 S.W. 2d 495; Price v. Price, 253 Ark. 1124, 491 S.W. 2d 793. It is true that this court has been authorized by Ark. Stat. Ann. § 62-2007 (Repl. 1971) to prescribe rules of procedure in probate courts but it has never seemed necessary to do so, because the procedures of chancery courts, presided over by the same judges as the probate courts, have seemed adequate. But, even in a court of equity, the counterclaim statute would not apply in this type of proceeding, so it does not apply here.

A counterclaim is defined as a claim by a defendant against a plaintiff. Ark. Stat. Ann. § 27-1123, defining a counterclaim, is a part of the Civil Code of Arkansas, adopted in 1869. There are two types of proceedings under the Civil code. One is a civil action, the other is a special proceeding. Civil Code §2, Ark. Stat. Ann. § 27-105 (Repl. 1962). A civil action is an ordinary proceeding in a court of justice by one party against another for the enforcement or protection of a private right or the redress or prevention of a private wrong. Civil Code § 3, Ark. Stat. Ann. § 27-106 (Repl. 1962). It is commenced by the filing of a complaint and causing summons to be issued. Civil Code § 58, as amended, Ark. Stat. Ann. § 27-301 (Repl. 1962). The other type of proceeding is called a special proceeding. All proceedings not covered by the definition of a civil action are special proceedings. Civil Code § 4, Ark. Stat. Ann. 27-107 (Repl. 1962).

The pleading provisions of the civil code apply to the prosecution of actions both at law and in equity, but not in special proceedings. Civil Code §§ 13, 106, Ark. Stat. Ann. §§ 27-215 (Repl. 1962), 27-1102 (Repl. 1962). Some proceedings in probate court are civil actions, e.g., proceedings by which a claim against the estate of a deceased person is reduced to judgment. Bright v. Johnson, 202 Ark. 751, 152 S.W. 2d 540. Others are special proceedings, not civil actions, so that the extension of exemption from the statute of limitations which applies to civil actions does not apply. Nelson v. Cowling, 89 Ark. 334, 116 S.W. 890. There are plaintiffs and defendants in civil actions only. Civil Code §§ 1, 2, Ark. Stat. Ann. § 27-201, 203 (Repl. 1962). Since a counterclaim can only be a claim by a defendant against a plaintiff, it can be asserted only in a civil action.

There is no right to contest a will, except as provided by statute. Manning v. Manning, 206 Ark. 425, 175 S.W. 2d 982. A will contest is not a civil action, but is a special proceeding. Rockafellow v. Rockafellow, 192 Ark. 563, 93 S.W. 2d 321. In Rockafellow, we held a statute making a spouse of a party in a civil action incompetent to testify inapplicable to a will contest for this reason.

There are no plaintiffs and defendants in a will contest, and it is not instituted by the filing of a complaint. This was the case in the Civil Code, which applied to probate courts only in civil actions and had separate provisions governing will contests. See Civil Code §§ 24, 806, § 513. While those provisions governing will contests have been superseded by the Probate Code of 1949, the nature of the proceedings has not.

The proceedings for probate of a will are governed by Ark. Stat. Ann. § 62-2101 et. seq. (Repl. 1971). The proceedings for contest of a will are governed by Ark. Stat. Ann. § 62-2113-2126 (Repl. 1971). Nowhere is there any indication that either proceeding is a civil action as distinguished from a special proceeding. There are no plaintiffs and defendants. No summons is required. The counterclaim statute simply has no application.

That is not to say that one offering a subsequent will has no rights. Such a person may object to the probate of a prior will. Ark. Stat. Ann. 62-2113, 2116 (Repl. 1971). The provisions of § 62-2116 (b) have particular application here. It is there provided that:

WHERE ONE WILL ALREADY ADMITTED OR ADMINISTRATION GRANTED. If, after a will has been admitted to probate or after letters of administration have been granted, a petition for the probate of a will of the decedent, not theretofore presented for probate, is filed, the court shall determine whether the former probate or the former grant of letters should be revoked and whether such other will should be admitted to probate or whether the decedent died intestate.

Thus it will be seen that in this case there were two issues, i.e., (1) should the probate of the former will be revoked and (2) should the subsequent will be admitted to probate. Under the provisions of Ark. Stat. Ann. § 62-2114 (Repl. 1971), a contest on the ground that another will has been discovered must be filed both (1) before final distribution and (2) within the time stated in Ark. Stat. Ann. § 62-2125. Sec. 62-2125 prohibits the admission of a will to probate unless application for its probate was made to the probate court within five years from the death of the testator, with certain exceptions, none of which apply here.

Appellant did not present the will she now asserts as the last will of Anderson Coleman within five years from the death of the testator. This was too late.

The judgment is affirmed.

      Procedures for probate and contest of wills were separately set out in Civil Code, § 513.


author: George Rose Smith, Justice.

text:
    Vena Welch SCOTT et al, Executors v. John A. JANSSON et al
    74-224
    516 S.W. 2d 589
    Opinion delivered December 23, 1974

      Smith. Williams, Friday, Fldridge & Clark, by: William II. Sutton and Frederick S. llssery, for appellants.

      Ben McCray, for appellees.

      Wright, Lindsey & Jennings, for cross-complainants.
   George Rose Smith, Justice.

This personal injury action arose from a head-on collision on Interstate 30 in North Little Rock, in March of 1973. One of the drivers, Wade H. Scott, was killed, and the other driver, John A. Jansson, was seriously injured. Jansson and his wife brought this suit against Scott’s estate and against Minor F. Green, whose car was indirectly involved in the accident. The jury apportioned the total negligence in the ratio of 80% against Scott, 20% against Green, and none against Jansson. The jury awarded $55,000 to Jansson for his injuries and $25,000 to Mrs. Jansson for loss of consortium. The principal appellants, Scott’s personal representatives, argue that the trial court erred in directing a verdict for Jansson upon the estate’s counterclaim, that the court erred in allowing a police officer to give certain expert testimony, and that the verdict in favor of Mrs. Jansson is excessive.

Upon the first point, the court was right in directing a verdict for Jansson upon the Scott estate’s counterclaim. At the place of the accident Interstate 30 is a divided six-lane north-south highway, with a grass median 24 feet wide. Just before the collision Scott was driving north in the inside lane of traffic, and Green was driving north in the center lane, a few car lengths ahead of Scott. Green’s left front tire had a blowout, causing his car to swerve across in front of Scott and onto the median.

Scott applied his brakes, laying down a single skid mark, 41 feet long, before he too left the pavement. Scott’s car crossed the median, entered the southbound lanes, clipped the left rear side of a panel truck, and collided head-on with Jansson’s car, in the center lane. Jansson testified that he saw the Scott vehicle coming across the median, but he was trapped in the center lane by vehicles on both sides of him. Jansson also said that it all happened in the twinkling of an eye and that he tried to put on his brakes before the collision, but he didn’t know whether he succeeded.

We find no substantial evidence upon which the jury could have found, except by guesswork, that Jansson negligently failed to take any action that he should have taken to avoid the collision. In this respect the case is not unlike Prickett v. Farrell, 248 Ark. 996, 455 S.W. 2d 74 (1970), where we upheld the trial court’s action in directing a verdict upon similar facts. The case of Gookin v. Locke, 240 Ark. 1005, 405 S.W. 2d 256 (1966), relied upon by the appellants, is not in point, for there the collision occurred on a two-lane highway, and the vehicles laid down more than 300 feet of skid marks before the collision. Certainly that accident did not happen in the twinkling of an eye.

The appellants’ second contention concerns the testimony of State Police Officer Robertson, who investigated the accident immediately after it happened. The officer, called as a witness by the plaintiffs, testified that he had worked with the state police for five years and that he was a highway patrolman, drivers’ license examiner, and defensive driving instructor. On direct examination he said that Scott’s car laid down 41 feet of heavy skid marks “of one of his tires.” On cross-examination by Green’s attorney the record reflects the following:

Q. Did you also say that was from one tire?
A. One clear tire.
Q. Ordinarily if all the brakes on a vehicle are operating properly, how many skid marks are laid down?
Mr. Sutton: I object unless this man is a brake expert.
The Court: I believe the Trooper would be qualified to answer the question.
A. If all brakes are properly working, I would say there would be at least some indication left physically that there was four tires skidding, and they would usually be not right on top of each other, but offset a little bit.

The appellants argue that the effect of the officer’s testimony was that Scott’s brakes were not working properly, and counsel then continue: “The state trooper in the case at bar did not give one single qualification which would entitle him to express an opinion on the operation of a braking system.”

That, however, as we read the record, was not the point raised in the trial court. Counsel’s sole objection was: “I object unless this man is a brake expert,” which the trial judge evidently and justifiably took to mean a person with expert knowledge about the mechanical operation of brakes. In overruling the objection the judge stated his belief that a trooper would be qualified to answer the question. We considered a similar point in American Ry. Express Co. v. Cole, 183 Ark. 557, 37 S.W. 2d 699 (1931). There the trial court permitted witnesses to testify that the damage to a shipment of strawberries had been caused by poor refrigeration. From our opinion:

Appellant argues that negligence was not shown because the witnesses of appellee who attributed the damage to poor refrigeration and defective equipment admitted that they had no technical knowledge of refrigeration or refrigerating cars. This argument is not sound, as the opinion of the witnesses was based upon long experience as shippers and not upon technical knowledge relative to refrigeration and refrigerating cars. They testified that, from long experience as shippers of perishable goods in refrigerating cars properly iced, they knew how long such commodities should keep in properly equipped cars sufficiently iced and handled with reasonable care.

So here, the trial court did not abuse its discretion in ruling that Officer Robertson, an experienced highway patrolman, was qualified to express an opinion even though he was not, in the language of counsel, “a brake expert.” If counsel doubted the officer’s familiarity with the effect of defective brakes upon skid marks, a request should have been made that he be put on voir dire to show his incompetency to testify. Brown v. State, 24 Ark. 620 (1867); McKelvey on Evidence, § 187 (5th ed., 1944). Absent such a request reversible error is not shown, for upon a retrial it might turn out that the officer was fully qualified to testify as he did.

Finally, the appellants (and cross-appellant Green) contend that the $25,000 award to Mrs. Jansson for loss of consortium is excessive. In the light of our earlier cases this con-tendon must be sustained. We must lay aside the fact, stressed by the appellees, that for some months after the accident Mrs. Jansson had to assume, in place of her husband, all responsibility for operating the couple’s motel. As we pointed out in Ark. La. Gas Co. v. Strickland, 238 Ark. 284, 379 S.W. 2d 280 (1964), the jury presumably took that loss into consideration in fixing the husband’s damages. To allow the same recovery in favor of the wife would plainly be a duplication.

The pertinent proof is that Mrs. Jansson was deprived of her husband’s companionship during his 51 days of hospitalization and for some months thereafter during his recuperation at home — a period totaling less than a year altogether. The couple’s normal marital relationship was also suspended for eleven months. Thus there was a total or partial loss of consortium for less than a year. In Missouri Pac. Transp. Co. v. Miller, 227 Ark. 351, 299 S.W. 2d 41 (1957), there was a total loss of consortium for the husband’s remaining life expectancy of 27 years, yet there we reduced the $25,-000 award to $15,000. We fully appreciate the decline in the value of the dollar since 1957, but in the case at bar we cannot sustain an award in excess of $10,000 for loss of consortium.

The judgment in favor of Jansson is affirmed. That in favor of Mrs. Jansson is affirmed upon condition that the indicated remittitur be filed within 17 days; otherwise that judgment will be reversed and the cause remanded for a new


text:
    I.V. CHAPMAN and Alvin Hugh PEARSON v. STATE of Arkansas
    5809
    516 S.W. 2d 598
    Opinion delivered December 23, 1974

      Walker, Kaplan & Mays, P.A., for appellants.

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

The two appellants were charged by information with having urged a riot and with having urged others to commit acts of violence by destroying property, in violation of Ark. Stat. Ann. § 41-1445 (Supp. 1973). After a long trial both defendants were found guilty, the jury fixing Chapman’s punishment at a $500 fine and three years’ confinement and Pearson’s punishment at a $500 fine. We find it necessary to discuss only five of the nine points for reversal that are argued.

I. The appellants first question the constitutionality of the statute, which reads in pertinent part as follows:

Section 41-1445. Every person who, with the intent to cause a riot, does an act or engages in conduct which urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property, and at a time and place and under circumstances which produce a clear and present and immediate danger of acts of force or violence or the burning or destroying of property, is guilty of a felony and upon conviction shall be subject to [specified fines or imprisonment or both].
Section 41-1446. This Act shall not apply to, nor in any way affect, restrain or interfere with, otherwise lawful activity engaged in by or on behalf of a labor organization or organizations by its members.

Counsel contend that the statute is so broad and so vague as to deny due process of law and that the exemption of labor union activity is so discriminatory as to deny the equal protection of the laws. Among the principal cases relied upon are Cox v. Louisiana, 379 U.S. 536 (1965), and Chaplinsky v. New Hampshire, 315 U.S. 568 (1942).

We hold the statute to be constitutional. The same arguments with respect to a California statute that is in every material respect a verbatim copy of the Arkansas act were unanimously rejected by the Supreme Court of California in People v. Davis, 67 Cal. Rptr. 547, 439 P. 2d 651 (1968). There the court, in a carefully reasoned opinion, said in part: “To persons of ordinary understanding, the urging of others to acts of force or violence or to burn or destroy property ... is neither similar nor comparable to speech which merely stirs to anger, invites public dispute, or brings about a condition of unrest. * * * The term ‘clear and present danger’ has long been used by the courts to distinguish between constitutionally permissible limitations on speech and limitations which run afoul of the constitutional guaranties. * * * There is no unconstitutional vagueness in charging an accused with knowledge of the meaning or import of such a phrase as applied to his acts or conduct, by speech or otherwise, if he ‘urges a riot, or urges others to commit acts of force or violence, or the burning or destroying of property.’ ”

The court also disposed of the equal protection conten» tion by pointing out that the second paragraph of the statute merely declares the intent of the legislature “that the provisions of the first paragraph are not to be construed to prohibit lawful labor union activity of a character which does not fall within the conduct described in the first paragraph.” Without quoting further from the California court’s excellent opinion, it is sufficient for us to say that we entirely agree with that court’s reasoning and adopt its discussion as our own.

II. We find the evidence amply sufficient to sustain the convictions. On March 16, 1972, racial strife in Arkadelphia resulted in fighting and property damage at one of the schools. Late that afternoon a crowd of 200 or more black citizens gathered outside the courthouse and jail, apparently because only black students had been arrested in connection with the incidents at the school. There was much testimony to show that the two defendants actively aroused the emotion of the crowd, particularly by leading them in chants such as “Whup, whup, whup ’em up against the side of the head” and “Let our people go.” Eventually the angry mood of the crowd erupted into violence. Rocks were thrown, one officer describing them as “quite a hail of rocks.” There were no personal injuries, but an unspecified number of windows were broken in buildings and in automobiles. Although many police officers had been present all along, the two defendants were not arrested until after the incidents of violence and property destruction. There is an abundance of testimony in the record to support the jury’s conclusion that the two defendants were guilty of acts falling squarely within the prohibitory language of the statute; that is, that they urged others to commit acts of violence and property destruction.

III. We must sustain the appellants’ contention that their defense was or may have been prejudiced by the trial court’s critical remarks, in the presence of the jury, about the conduct of the defendants’ attorneys. Unfortunately, there was friction between the trial judge and defense counsel almost from the beginning of the litigation. One attorney was cited for contempt of court (and found not guilty by the trial judge), and there are references to an order by which the trial judge attempted to disbar the defense law firm from practicing in the circuit court.

Most of the conflicts between court and counsel took place outside the presence of the jury, but there were other instances — two in particular — that were witnessed by the jury. The first incident occurred when a defense attorney, Mr. Mays, was introducing photographs that had been taken by the State. Confusion understandably arose, because the prosecution had intended to introduce the pictures and had put State’s Exhibit Numbers on the back of them. We quote from the record:

Q. Now, may Í ask you one question; do you know whether these pictures were taken —
Mr. Mathis: May I see the photographs?
Mr. Mays: This is State’s No. 4.
Mr. Mathis: No, this is Defendants’ No. 5.
Mr. Mays: I know it’s Defendants’ No. 5, but on it, it says State’s No. 4.
Mr. Mathis: Sir?
Mr. Mays: it says State’s No. 4 on the back here, your Honor.
The Court: Now, Mr. Mays, you know how to conduct yourself in court. These are photographs. They are your exhibits. They are not State’s No. 4.
Mr. Mays: I understand.
The Court: You understand?
Mr. Mays: Yes, sir.
The Court: Now, you either conduct yourself with propriety in this court, or I will deal with the matter at a later date.

We merely observe that the photograph was in fact marked on the back as a State’s Exhibit, that the statements made by Mays were correct, and that we discern no basis for the court’s implication that Mays had not conducted himself with propriety.

The second incident occurred while another defense attorney, Mr. Walker, was questioning a police officer:

Q. So up to the point where he took his shirt off, in your judgment, he had not done anything to cause you to arrest him?
The Court: The witness will not answer the question. It is repetitious. It is not a matter for the judgment of this witness, but it is a matter from all the facts that the jury will determine.
Mr. Walker: Your Honor, I respectfully suggest that this witness has arrest authority.
The Court: Every citizen has arrest authority, Mr. Walker. Now, let’s move on.
Mr. Walker: Would you note our exceptions?
The Court: Yes, sir.
Mr. Walker: Did you note our offer of proffer to the court?
The Court: Yes, sir.
Mr. Walker: Would his Honor rule on our request to proffer?
The Court: Overruled.
Mr. Walker: Note our exceptions.
The Court: Yes, sir. And the court will also note your dilatory tactics.

Counsel’s motion for a mistrial, made outside the hearing of the jury, was then overruled.

The motion should have been granted. As we said in Western Coal & Mining Co. v. Kranc, 193 Ark. 426, 100 S.W. 2d 676 (1937), and repeated in McAlister v. State, 206 Ark. 998, 178 S.W. 2d 67 (1944): “No principle is better settled than that a judge presiding at a trial should manifest the most impartial fairness in the conduct of the case. Because of his great influence with the jury, he should refrain from impatient remarks or unnecessary comments which may tend to result prejudicially to a litigant or which might tend to influence the minds of the jury.”

In the case at bar the trial judge’s reprimand in each instance was unnecessarily severe and critical, as there had been no conduct on the part of counsel calling for such a rebuke. Our settled rule is that error is presumed to be prejudicial unless we can say with confidence that it was not. Vaughn and Wilkins v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). Here we cannot conscientiously say with assurance that the trial court’s remarks had no prejudicial effect upon the jury’s consideration of the case.

IV. We find no abuse of discretion in the trial court’s refusal to grant a change of venue, the evidence being in conflict. Bailey v. State, 204 Ark. 376, 163 S.W. 2d 141 (1942). Moreover, in seeking a change of venue counsel stressed the fact that at the time of trial racial tension in the county still existed, because the riot had occurred only a month before the case was tried. Owing to the court reporter’s physical inability to transcribe the testimony promptly, the record was not filed in this court until two years after the trial. Consequently, the state of public feeling may be entirely different upon a retrial of the case. If not, the request for a change of venue may be reasserted.

V. In the only other alleged error that is likely to recur upon a new trial, counsel insist that the court should have told the jury that the assemblage in front of the courthouse would be presumed to be lawful unless and until it was shown that the law enforcement officials instructed the crowd to disperse. The statutes relied upon, Ark. Stat. Ann. §§ 42-207, 42-209, and 42-211 (Repl. 1964), merely impose upon the officers a duty to attempt to persuade the assembled persons to disperse. Their failure to take that action certainly does not convert a riot into a peaceable and lawful assembly.

Reversed.


author: Lyle Brown, Justice.

text:
    Nora VEASEY v. Roscoe Daniel JOSHLIN
    74-214
    516 S.W. 2d 596
    Opinion delivered December 23, 1974

      Dodds, Kidd, Hendricks & Ryan, for appellant.

      Gail 0. Matthews, for appellee.
   Lyle Brown, Justice.

Appellant Nora Veasey sued appellee Roscoe Daniel Joshlin for personal injuries and property damages arising from an automobile collision. A settlement in the case was reached but Nora Veasey subsequently retracted her commitment to settle. The trial court held that the agreement, reached between the attorneys and with the consent of the parties, was binding and consequently not subject to rescission. Judgment was entered for the amount of the settlement. Nora Veasey concedes that the law concerning the validity of a compromise settlement is adverse to her position; however, she contends that she was denied her constitutional right of trial by jury. Ark. Const., art. 2, § 7.

On April 5, 1974, Joshlin’s attorneys submitted to Ms. Veasey’s attorneys an offer to settle the case for 112,500. Three days later Ms. Veasey’s attorneys submitted to her the offer. She accepted it and authorized her attorneys to consummate the settlement. The case was scheduled for trial on April 9 and Mrs. Veasey’s attorneys notified the clerk to remove the case from the trial docket. Joshlin’s attorneys immediately transmitted the check and release to Ms. Veasey’s attorneys. Thereafter, and on April 12, Ms. Veasey called her attorneys and informed them that she changed her mind and wanted to retract the settlement. In her testimony at the hearing on motion for entry of judgment, Ms. Veasey testified that after deliberating on the offer for “a day or so” she notified her attorneys to effect the settlement; but then she talked to her husband and it was decided that the amount offered was too small. There was no contention of fraud or overreaching.

Judge Miller concisely stated the rule in McKenzie v. Boorhem, 117 F. Supp. 433 (1954):

Under the Arkansas law, an attorney has no implied authority to enter into a compromise agreement. Turner Furnishing Goods Company v. Snyder, 201 Ark. 699, 146 S.W. 2d 913; Cullin-McCurdy Construction Company v. Vulcan Iron Works, 93 Ark. 342, 124 S.W. 1023. However, when a client gives his attorney specific authority to enter into a compromise agreement, such an agreement, if entered into by the attorney, is valid and binding. Byford v. Gates Brothers Lumber Company, 216 Ark. 400, 225 S.W. 2d 929; Moore v. Murrell, 56 Ark. 375, 19 S.W. 973; 30 A.L.R. 2d, 944-958; 5 Am. Jur., Attorneys at Law, § 98, Pages 318-329; 7 C.J.S. Attorney and Client, § 105, p. 928 et seq.

Ms. Veasey’s contention that the entry of the judgment deprived her of a jury trial is wholly without merit. By her action in deliberately authorizing a settlement she, of course, waived a formal trial.

Affirmed.


text:
    Harold S. UPTON v. STATE of Arkansas
    CR 74-97
    516 S.W. 2d 904
    Opinion delivered December 23, 1974

      Richard H. Mays and Michael Landers, for appellant.

      Jim Guy Tucker, Atty. Gen., by. Jack T. Lassiter, Asst. Atty. Gen., for appellee.
   John A. Fogleman, Justice.

This appeal comes from a retrial of appellant Upton on a charge of first degree murder of Woodrow DeFee alleged to have been committed in the perpetration of a robbery, after our reversal of his conviction in Upton v. State, 254 Ark. 664, 497 S.W. 2d 696. The points for reversal here are:

I. The Trial Court erred in refusing to grant defendant’s motion to quash and dismiss relative to the appointment of a special prosecutor.
II. The Trial Court erred in refusing to grant defendant’s motion to suppress evidence regarding a confession allegedly made by defendant.
III. The evidence was not sufficient to sustain a judgment of murder committed while in the act of or in the attempt to perpetrate robbery.

The second point was asserted on the previous appeal and we held adversely to the appellant. Unless the evidence is materially different from that previously before us, the law of the case governs. Mode v. State, 234 Ark. 46, 350 S.W. 2d 675. There is very little difference in the evidence on behalf of the state. We find there is no reversible error. We will treat these points separately.

I

Appellant, as one ground for a change of venue, sought a transfer of the case to a county in which James J. Calloway was not a deputy prosecuting attorney. He asserted that his right to a fair and impartial trial was jeopardized by reason of the fact that Calloway, who had previously been one of the attorneys appointed to represent him in the defense of this charge, had been appointed Deputy Prosecuting Attorney in and for Union county. The motion for change of venue was granted, without any indication that it was based only on this ground. Appellant had also filed a motion to quash and dismiss the information filed against him on the same ground. He asked, in the alternative, that the prosecuting attorney and his staff be disqualified and that the court appoint a special prosecutor and enjoin him from discussing the case with- the prosecuting attorney or members of his staff and from using any evidence except such as might be on public record or was used in the first trial. The motion was denied upon the trial court’s finding that Calloway had respected the confidential relationship with his former client. The court, however, stated that if at any time prior to trial it was shown Calloway had violated or appeared to have violated this confidentiality by revealing any information received from appellant, the court would consider a motion to recuse the prosecuting attorney and his staff or to permit appellant to renew his motion to quash. The court also enjoined Calloway from discussing the case with the prosecuting attorney, his staff, appellant or appellant’s attorneys and from appearing at any subsequent hearings in the case or at the trial or participating in the cause, either as an advocate or spectator. The circuit judge warned that any appearance by Calloway in the courtroom at any time this case was under consideration would constitute a violation of the court’s order and any violation would immediately result in the prosecuting attorney and his staff being recused and a special prosecutor appointed.

The record discloses that Calloway was appointed to assist in Upton’s defense on April 4, 1972, and had conferred with Upton about the charges and his defenses on numerous occasions and had participated in the former trial and appeal. Calloway testified that his principal area of activity was in legal research and briefing and that Denver Thornton was leading counsel throughout the trial and appeal. His appointment as deputy prosecuting attorney was made on March 5, 1973, after he had completed his research in the Upton appeal but before he had dictated his brief. He stated that he had not subsequently had any contact with Upton, had never reviewed the state’s file in the case against Upton, except when it was made available to him as defense counsel, had not related any confidential information received from Upton to any of the prosecuting attorney’s staff, and had not done anything or become involved in any way in the case against Upton. He did say that after the reversal of Upton’s first conviction he had received a note from Upton and had gone to the jail to talk to Upton, at which time he gave Upton to understand that the representation was terminated. Calloway stated that he had done everything within his power to stay away from the case.

Calloway related that his primary duties as deputy prosecuting attorney were to attend municipal court, but said that he had made some felony court appearances and had handled a great deal of office traffic and some special assignments. There is no evidence contrary to that of Calloway and no indication that Calloway violated the confidence of appellant or participated in the case on behalf of the state in any way, or that appellant was prejudiced by anything Calloway had said or done. There is not the slightest indication that Calloway violated the trial court’s injunction in any way.

Appellant’s whole argument is based upon the potential for prejudicial violation of the confidential relationship. In support of his argument appellant relies upon numerous authorities from sister states, none of which is in point. If Calloway had appeared in the case at any time on behalf of the state in any capacity or prepared, presented or argued charges against appellant or instructions to be given the jury, or had communicated with the prosecuting attorney or any member of his staff about the case or had been a partner of the defense counsel serving at the second trial, we would have an entirely different situation. It appears from this record that Calloway scrupulously avoided any possibility of violation of any confidence and that the circuit judge was just as scrupulous in taking steps to avoid even the possibility of impairment of appellant’s right to a fair trial insofar as Calloway’s previous representation of him was concerned. To say the least, there was no abuse of the trial court’s discretion under these circumstances.

II

The alleged confession attacked by appellant is the same we held to be voluntary upon the record before us on the prior appeal. The trial court, after another Denno hearing before the second trial, also held the statement was voluntary and it was admissible both on that ground and on the law of the case. Appellant has not pointed out to us any significant difference in the testimony at the two Denno hearings. The impact of the law of the case is as great on questions of admissibility of evidence and voluntariness of statements by an accused as on any other question. See Fuller v. State, 246 Ark. 704, 439 S.W. 2d 801; Mode v. State, 234 Ark. 46, 350 S.W. 2d 675.

Appellant’s argument on this point is based entirely upon the fact that there was a two-day interval between the warnings as to his constitutional rights and the statement made by him to the prosecuting attorney. He says that the statement should have been held inadmissible because off the failure of the prosecuting attorney and the officers accompanying him to Upton’s jail cell on the occasion the sta in ,pent was made to advise him of his constitutional rights. Even if this is an objection to admissibility not previously roads, the law of the case, as the rule is applied by this court, ppoh.WJy would govern on the question of admissibility. See St. Louis Southwestern Railway Co. v. Jackson, 246 Ark. 268, 423 S.W. 2d 41; Turner v. State, 251 Ark. 499, 473 S.W. 2d 904. Still, wo find no merit in appellant’s argument on this appeal.

The statement was made at an interview requested by appellant. The statement did not result from any iníaioga tion. it was spontaneous. Upton started giving lilis version oí the case as soon as the prosecuting attorney and the accompanying officers entered the cell. We have never attempts 1 to set a fixed limit on the interval of time which must elapse between advice to an accused of his constitutional rights and an incriminating statement before a new warning is essential to admissibility of the statement. Probably we never will, because we must view the totality of the circumstances in our independent review of the record to determine whether such a statement is voluntarily made. See Degler v. State, 257 Ark. 388, 517 S.W. 2d 515 (1975). We have held that a three-month interval is too long. Scott v. State, 251 Ark. 918, 475 S.W. 2d 699 On the other hand, we held that a three-hour delay between warning and confession was not so long as to require repetition of a warning where other evidence that the confession was voluntary preponderated. Summerville v. State, 253 Ark. 16, 484 S.W. 2d 85. In a factual situation very analogous to this, we found the evidence that a statement was volunta? / io be overwhelming in spite of the fact that-at least three or fevr days intervened between the accused’s being informed of his constitutional rights and his relating his version of a killing to officers he asked to come to the jail where he was incarcerated. O’Neal v. State, 253 Ark. 574, 487 S.W. 2d 618. To say the very least, we cannot say that when we view the totality of the circumstances the trial judge’s finding in thi:: rase was clearly against the preponderance of the evident. Degler v. State, supra.

G'“ the prior appeal we found no merit in any of ; eat’s arguments for reversal other than the one upon whbG -ye reversed his conviction.. While he did not specifically : •'ue hi that appeal that the evidence was insufficient to r. . hi a verdict finding him guilty of committing a murder G the ; erpeiration of a robbery, he did raise a point closely ¿ -Tied to his present argument. The point he did assert was thru ¡.he court erred in failing to instruct the jury that he Coirnot be convicted of murder in the perpetration of a et/ccr/ if he did not perpetrate, or attempt to perpetrate, a srTbwy on the deceased or if the intention to rob the deceas- . ,;i .': c formed subsequent to the infliction of the mortal no ivach Wow he argues that the evidence fails to show that he y npctrated or attempted to perpetrate a robbery. In so arguTy appellant says the evidence that the victim, Woodrow Tehee, was robbed is purely circumstantial and that the preponderance is to the contrary. Of course, we are not concerned with the preponderance of the evidence. Basically, it is sufficient 'f it does more than give rise to a suspicion that the victim was robbed and does not leave the jury to speculation and co dec.ure only in determining whether other reasonable Lypwhisc'; are excluded. Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458; Ledford v. State, 234 Ark. 226, 351 S.W. 2d 425. See also Ayers v. State, 247 Ark. 174, 444 S.W. 2d 695; Taylor v. State, 178 Ark. 1200, 10 S.W. 2d 853.

True enough, his confession, which was admitted, left n&Ting to speculation. As related by the Chief Criminal Teputy Sheriff of Union county, Upton said he picked DeFee up just out of Strong en route to El Dorado and this “dude” hud a check stub he was flashing, and was bragging about how much money he had made, so Upton made up his mind drisit he would rob DeFee, but was talked out of it by his femak companion. According to this officer, Upton also said ihai2 after stopping in El Dorado, when the “dude” asked to he ¿akem back to some point they had passed, Upton stuck a ¿un In his ribs, and later pulled off the road, made DeFee give k:j his billfold and told him to get out of the car. The officer she said that Upton stated that after having shot DeFee twice, he took $20 out of the billfold after which he threw it away.

Of course, it was necessary that the state show by other evidence that the particular crime with which Upton was charged had been committed. Ark. Stat. Ann. § 43-2115 (Repl. 1964). In a very similar case, we held that the fact that the victim was missing for five days, that his body was found far from the route he normally would have followed in returning home and that his purse had been taken would have constituted sufficient evidence that he had been robbed and had not died from natural causes. Moore v. State, 227 Ark. 544, 299 S.W. 2d 838. Appellant’s attack is, of course, directed toward the evidence of robbery and not the cause of DeFee’s death.

Alton Vestal saw DeFee about 4:00 a.m. on the day of the homicide. He saw a check for about $400 in DeFee’s possession. Vestal cashed a smaller check, for an amount less than $50, deducting $5.50 DeFee owed Vestal and giving DeFee between $35 and $40. Opal Lemmons sold DeFee a half pint of whiskey on that morning. He paid for it with two one dollar bills which he took from his shirt pocket and showed her his payroll check for more than $400, which he removed from his billfold. Marie Jerry testified that DeFee was in her place of business from 9:00 or 10:00 a.m. until noon on that day when his wife came and took him home. He paid cash for beer he bought. She remembered that he had a check in his possession and that DeFee returned about 2:00 or 3:00 p.m. and his attire was different from what he had worn in the morning.

Francine Chadwick also saw DeFee at this place during the morning. She said that DeFee purchased one can of beer while there, took out his billfold and handed Marie Jerry a check and a piece of currency, the denomination of which she did not know, but she saw a $20 bill which remained in his billfold.

Shirley DeFee said she had talked to her husband about his paycheck when they got home, and he gave it to her. She tried to get his billfold from him, but he refused to give it to her. She thought if she could get it he would stay at home. She related that she unsuccessfully tried to get hold of it while it was in his pants pocket and that they had a tug of war which she lost. She testified that he went to sleep wearing his work clothes and she left without any further effort to get the billfold, knowing that he was intoxicated and had been without sleep for 36 hours. She said that, thinking her purpose had been accomplished, she took his check, cashed it, paid some bills, returned home and, finding her husband still asleep, went to her mother’s. She stated that when she returned, he had changed clothing and left.

Later Hazel Hollis saw DeFee at Jerry’s Drive-Inn where he bought beer and paid for it with change. She did not see a billfold.

There was testimony that there was no billfold or other means of identifying DeFee found on his body but that there were three one dollar bills, nine quarters, four dimes and five pennies found. The body was found at a place off Highway 82 about five miles west of El Dorado. The billfold was never found, although the officers searched for it.

Appellant argues that the evidence pertaining to intention to rob DeFee is insufficient, because no one saw DeFee with a billfold after he left home, and it is probable that Mrs. DeFee took the billfold after he went to sleep and her statement that she did not was unlikely, so that it should be inferred that DeFee had less than $30 in his possession when he was last seen, that it would have been a perfectly simple matter for one intent upon robbery to reach into DeFee’s pockets after he was on the ground on his back, as he was found, and take the $5.70 found after the body was discovered.

These arguments were appropriate if addressed to the jury, and they undoubtedly were. It is true that the evidence pertaining to perpetration of a robbery, which was independent of Upton’s confession, was purely circumstantial. Since Mrs. DeFee’s testimony is not inherently improbable so that it must be rejected as a matter of law, and since her credibility and the weight to be given her testimony was for the jury to decide, it had the right to believe her. Tyler v. State, 168 Ark. 1168, 271 S.W. 451; Butler v. State, 192 Ark. 802, 95 S.W. 2d 636; Melton v. State, 165 Ark. 448, 264 S.W. 965; Brown v. State, 176 Ark. 1203, 4 S.W. 2d 947. If her testimony is true, it is highly unlikely that DeFee, having surrendered his paycheck, but having won his battle to keep his billfold, would walk away from home and leave it. Of course, the amount of money taken is of no concern, if any was taken. Radcliff v. State, 249 Ark. 1, 457 S.W. 2d 847. The failure of DeFee’s assailant to search each of his pockets after he had been shot twice was only a circumstance for the jury to weigh.

After all, the jury might draw any reasonable inference from circumstantial evidence to the same extent it could from direct evidence. Casteel v. State, 202 Ark. 663, 152 S.W. 2d 554; Moran v. State, 179 Ark. 3, 13 S.W. 2d 828. We think it was reasonable for the jury to have drawn the inference that DeFee was robbed, when full credit is given to Mrs. DeFee’s testimony. Certainly in the light of all the testimony independent of the confession, the evidence that he was robbed rises far above mere suspcion so that the jury, in arriving at its conclusion, did not have to resort only to speculation and conjecture.

When circumstantial evidence rises, above suspicion and is properly connected, and when, viewing that evidence in the light most favorable to the state, the jury is not left to speculation and conjecture alone in arriving at its conlusions, it is basically a question for the jury to determine whether the evidence excludes every other reasonable hypothesis. Ledford v. State, 234 Ark. 226, 351 S.W. 2d 425; O'Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976; Caradine v. State, 189 Ark. 771, 75 S.W. 2d 671. See also Walker v. State, 174 Ark. 1180, 298 S.W. 20; 30 Am. Jur. 2d 295, Evidence § 1125. It is only every other reasonable hypothesis, not every hypothesis, that must be excluded by the evidence. Bartlett v. State, 140 Ark. 553, 216 S.W. 33; Bost v. State, 140 Ark. 254, 215 S.W. 615. See also, Walker v. State, supra. The jury certainly should test the reasonableness of any other hypothesis.

It should be noted that Upton and his wife, who was his female companion at the time of their encounter with DeFee, both testified. Both denied that there was any robbery or attempt to rob. She said that the shooting was precipitated by DeFee’s attempt to rape her. She said that while she and DeFee were seated in the front seat of Upton’s car with Upton driving, DeFee reached into the back seat of the car, got a shotgun of Upton’s, laid it across her lap, and holding it on Upton, commanded that the vehicle be stopped. Then she said, while holding the gun on Upton, DeFee threw her on the ground, knelt over her and tried to remove her clothes. According to her, DeFee and Upton became involved in a struggle over the shotgun, resulting in its going off twice. She attributed an entirely different statement incriminating both herself and Upton which failed to refer to any advances by DeFee toward her, to the fact that she had been drinking and taking pills. She said the officers had made up the statement. She admitted that she had then made the statement that Upton took DeFee’s billfold, but that it was untrue.

Upton testified that he did not put DeFee out of his car when the latter first became familiar with Mrs. Upton, because she asked him not to. Yet, he said that after they later stopped in El Dorado to check the transmission fluid in his car, DeFee was permitted to continue on the trip with them and that they had only gone two blocks when DeFee put a shotgun in his stomach and ordered him to turn up a dirt road and stop. He likewise testified that the shotgun went off during a struggle between the two men after DeFee had ordered Mrs. Upton to get on the ground. He denied robbing DeFee and said he did not see a billfold. He attributed his confession to his desire to protect his wife and the prosecuting attorney’s alleged statement that she would burn in the electric chair.

We think the circumstantial evidence that DeFee was killed in the perpetration of a robbery is sufficiently connected to constitute substantial evidence to support the verdict when viewed in the light most favorable to the state.

The judgment is affirmed.


author: J. Fred Jones, Justice.

text:
    SEARCY COUNTY v. Billy Joe HOLDER
    74-198
    516 S.W. 2d 901
    Opinion delivered December 23, 1974

      Matthews, Purtle, Osterloh & Weber, for appellant.

      Jerry D. Patterson, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Searcy County from a circuit court judgment which reversed an order of the county court on appeal, and granted certain claims filed by the appellee Billy Joe Holder, as sheriff of Searcy County, which claims had been denied by the county court. On appeal to this court Searcy County has designated the points on which it relies for reversal as follows:

“. . . the court erred in allowing claims Nos. 11815, 11814, 11816 as they are barred by Arkansas Statutes Ann. § 27-2001 (Supp. 1973).
. . . the court erred in allowing the claims made for the deputy sheriff car expense in that such claims were not proper and are not authorized by law.”

We now discuss the assignments in the order designated and we shall confine our discussion to the designated points. As to the first point, Sheriff Holder filed claim No. 11611 and it was disallowed by the county court on May 1, 1973. He filed claims No. 11683 and 11753 and they were disallowed by the county court on June 29, 1973. On August 1, 1973, Sheriff Holder refiled the previously disallowed claims as claims No. 11814, 11815 and 11816. These claims filed on August 1, 1974, were disallowed by the county court on the same date they were filed, and Sheriff Holder perfected his appeal to the circuit court on January 30, 1974.

It was the county’s contention that the six month statute of limitations for appeals from county court orders to the circuit court under Ark. Stat. Ann. § 27-2001 (Supp. 1973) started running from the date the claims were first denied by the county court, and that the appeal filed on January 30, 1974, was filed too late. It was the sheriff’s contention that the appeal time under the statute, started running from August 1, 1973, when the claims were again denied by the county court. The circuit court agreed with the sheriff and rendered judgment accordingly and in so doing, we conclude that the circuit court erred.

The pertinent portion of § 27-2001 provides as follows:

“Appeals shall be granted as a matter of right to the circuit court from all final orders and judgments of the county court ... at any time within six (6) months after the rendition thereof, . . . the clerk of the circuit court shall forthwith order an appeal to the circuit court... at any time within six (6) months after the rendition of any other judgment or order, and not thereafter.”

When the time in which an appeal must be taken is fixed by statute, the provision which limits the time is jurisdictional in nature, and the appeal must be taken within the time designated. Bank of El Paso v. Neal, 181 Ark. 788, 27 S.W.2d 1024; Camden Gas Corp. v. Camden, 183 Ark. 583, 37 S.W.2d 74; Edgmon v. Edgmon, 193 Ark. 1076, 104 S.W.2d 452. See also Tilsworth v. Mayfield, Judge, 241 Ark. 641, 409 S.W.2d 500.

As to the appellant’s second point, claims No. 11817, 11818, 11910, 11967, 12178, 11265 and 11266 were filed by the sheriff for expenses for a deputy sheriff’s car and were denied by the county court. The orders denying these claims were timely appealed to the circuit court and the circuit court rendered judgment therefor. It was the county’s contention that there was no statutory authority for allowing these claims and it was the sheriff’s contention that the claims were legitimate and should be paid under authority of § 64 of Act 610 of the Acts of the Legislature for 1973.

Act 610 is entitled “AN ACT to Fix the Salaries or Remunerations of the Sheriffs of the Various Counties of the State of Arkansas; and for Other Purposes.” Section 64 of the Act pertains to Searcy County and provides as follows:

“(64) Searcy County — Salary or remuneration and Deputies as now provided by law, plus the further and additional sum of $4,800.00 for Deputy Hire, payable on a monthly basis out of the County General Fund, Sheriff’s car expense of $3,600.00 annually payable on a monthly basis out of the County General Fund. Said Sheriff shall be allowed $4.00 per day per person for feeding prisoners.
Plus the further and additional sum of $4,800.00 for second Deputy hire, paid on a monthly basis out of County General Funds. A car furnished with radio equipment, shall be furnished by County for use of Sheriff’s Department. Expenses for said car shall be paid from County General Fund.
Plus the additional hiring of part-time radio operator at the rate of $2,400.00 annually to be paid from excess fees and commissions.
All other excess fees and commissions shall be paid into the County General Fund.”

It was the county court’s position that the last two sentences in the second paragraph of § 64, supra, “A car furnished with radio equipment, shall be furnished by County for use of Sheriff’s Department. Expenses for said car shall be paid from County General Fund,” were the only authority the county had for paying expenses of a car for the sheriff’s department; and, that the phrase “said car” referred only to a car belonging to, and purchased by, the county for use of the sheriff’s department.

It appears from the abstract of the record that under a previous mandamus order from the circuit court, Searcy County had placed an order for an additional automobile furnished with radio equipment in compliance with § 64 of Act 610. It appears that pending delivery of the automobile, the sheriff substitued a privately owned automobile so equipped, for use in the department by one of the deputies, and that the claims were for gasoline used in connection with the operation of said automobile. The amounts or the integrity of the claims is not questioned.

We are of the opinion that the county court placed too narrow construction on the statutory authority for “furnishing a car” with radio equipment and that the circuit court did not err in the judgment it rendered on these claims.

The judgment is reversed as to claim No. 11814 in the amount of $490, claim No. 11815 in the amount of $645 and claim No. 11816 in the amount of $486., In all other respects the judgment is affirmed.

Affirmed in part; reversed in part.


author: Frank Holt, Justice.

text:
    Doyle STEVENS v. MID-CONTINENT INVESTMENTS, Inc.
    74-221
    517 S.W. 2d 208
    Opinion delivered December 23, 1974
    [Rehearing denied January 27, 1975.]

      Atchley, Russell, Waldrop & Hlavinka, for appellant.

      Toung & Patton, by: David Folsom, for appellee.
   Frank Holt, Justice.

This case results from a collision involving appellee’s diesel Mack tractor-tank trailer and appellant’s pickup-cattle trailer. The jury found appellant negligent and awarded appellee $20,000 for damages to its vehicle and $5,578 for lost profits. Appellant’s only contention on appeal is that damages for loss of use are not recoverable. Therefore, appellant asserts that the trial court erred in instructing the jury as to lost profits.

The tractor-trailer, the only one owned by appellee, was used on daily short hauls to transport fuel from a supplier to appellee’s truck stop. Appellant agrees that the rig was irrepairably damaged. Appellee promptly attempted to find a replacement by bidding on a used one and, also, ordering a new truck of the same model as the damaged one. A strike, however, prevented action on the bid. Other tractor-tank trailers were immediately available. However, they were considerably more expensive and did not meet appellee’s need for a particular type vehicle, which is a tractor designed to pull two tank trailers. It was unique equipment known as a “West Coast” model. Approximately six months after the accident, appellee received the new truck it had ordered. Several days later, appellee was notified that it was the high bidder on the used truck. Since appellee then had two trucks and needed only one, it sold the used truck. During the six months’ period that appellee was without the use of the special type equipment, it contracted with an independent carrier to haul its daily fuel supply. The record shows that this expense reduced its monthly earnings by SI,758.76. The reasonableness of the time in acquiring the needed replacement and speculation as to the loss of profits are not questioned on appeal. As indicated, the loss of profit based upon loss of use of this vehicle is the only issue presented.

In Jones v. Herrin, 252 Ark. 837, 481 S.W.2d 362 (1972), we adhered to our cases that an individual could not recover compensation for loss of use of a vehicle pending repair of the damages caused by a wrongdoer. However, we recognized “that there is some merit” in allowing recovery. The concurring justices said that our rule denying the loss of use of a vehicle as an element of damages “. . . . is demonstrably unjust, especially when, as here, the plaintiff customarily uses the vehicle in his business. Such an award is essential if the injured person is to be made whole.” Subsequently, in Sharp v. Great Southern Coaches, Inc., 256 Ark. 773, 510 S.W. 2d 266 (1974), we recognized and approved the recovery of compensation for loss of use as an element of damages where a commercial vehicle was partially damaged and enunciated the criteria in making that determination. The owner was allowed the income lost while the truck was being repaired, citing Ark. Const. Art. II, § 13 (1874), which in pertinent part reads:

Every person is entitled to a certain remedy in the laws for all injuries or wrongs he may receive in his person, property or character . , . .

We further said:

We note that we ordinarily recognize loss of use as an element of damages where the detention of other types of property is involved, McDanial v. Crabtree, 21 Ark. 431 (1860), and Continental Gin Co. v. Clement, 176 Ark. 864, 4 S.W.2d 901 (1928). When our prior decisions with reference to the compensability of loss of use of a vehicle are considered along with the criticism that has been leveled at fhem, Jones v. Herrin, supra, together with the inconsistent position we have taken when loss of use of other property is involved, we find that our former decisions with reference to the compensability for loss of use of a vehicle were somewhat arbitrary and should be overruled when only a partial destruction is involved.

Appellant correctly asserts that Sharp, supra, awards loss of use only when a partially damaged vehicle is involved. Appellant is correct in stating that numerous jurisdictions refuse to allow loss of use where the vehicle is totally destroyed, as here, and must be replaced. See 18 ALR3d 497; Blashfield, Automobile Law and Practice, 15 § 480.4. The denial of such relief apparently stems from the historical limitations on the action of trover at common law. Nashban Barrel & Con. Co. v. G. G. Parsons Trucking Co., 49 Wis. 2d 591, 182 N.W. 2d 448 (1971); 18 ALR 3d, § 9, p. 519.

The most recent cases, and seemingly just approach, allow recovery for loss of use where, as here, upon proper pleading and proof, there is total destruction of the vehicle. The recovery is subject to the reasonableness of time required for replacement and unspeculative lost profits. See Nashban Barrel & Con. Co. v. G. G. Parsons Trucking Co., supra; Dennis v. Ford Motor Company, 332 F. Supp. 901 (W.D. Pa. 1971); Daniel v. Kerby, Ky., 420 S.W. 2d 393 (1967); New York Central Railroad Company v. Churchill, 140 Ind. App. 426, 218 N.E. 2d 372 (1966); Laney Tank Lines, Inc. v. United States, 237 F. Supp. 205 (E.D. S. Ca. 1965); and 18 ALR3d, § 9, p. 519. In New York Central Railroad Company v. Churchill, supra, a tractor-trailer unit was totally destroyed. The court allowed damages for loss of use. The owner was awarded the reasonable rental value of a rig during the time needed to replace the destroyed vehicle.

There seems to be no logical reason to allow loss of use as was awarded in Sharp and not extend it in the case at bar. Appellant negligently damaged appellee’s .truck and it took six months, after diligent effort, to replace it because of its unique design. During this period, appellee suffered pecuniary loss, if the truck had been severely damaged, but repairable, our rule, as announced in Sharp, would unquestionably be applicable. The main consideration in Sharp was to make the plaintiff whole, a concept which certainly is not novel.

Affirmed.

Jones and Byrd, JJ., dissent.


author: Dan M. Burge, Special Justice. Carleton Harris, Chief Justice,

text:
    W. C. McMINN CO., Inc. v. CITY of Little Rock and Calvin BIGGERS et al
    74-92
    516 S.W. 2d 584
    Opinion delivered December 23, 1974

      Stubblefield & Matthews, for appellant.

      Joseph C. Kemp, City Atty., by: David Henry and Plegge, Lowe & Whitmore, for appellees.

      Charles Mott Jr. and Walker, Kaplan & Mays, P.A., and John M. Bilheimer, for intervenors-appellees.

      H. Clay Moore, for Quapaw Quarter Association, amicus curiae.

      Darrell D. Dover and House, Holmes & Jewell, for Little Rock and North Little Rock Board of Realtors, amicus curiae.

   Dan M. Burge, Special Justice.

This is a zoning case involving a total of nine and one-half (9 Vi) lots owned by the Appellant, W. C. McMinn Co., Inc., out of a total of twelve (12) lots in Block 206 of the original City of Little Rock, which block is located between 15th and 16th Streets, Broadway and Arch Streets, in the City of Little Rock.

The North side of Block 206 adjoins and is immediately adjacent to the south boundary of the Central Little Rock Urban Renewal District. There are numerous lots along Broadway used and zoned as F Commercial as well as on other streets within the immediate area of Appellant’s property. The south half of the adjoining block facing Broadway and within 200 feet of the southeast corner of Appellant’s property is used commercial as is the entire west half of the block adjoining Appellant’s property on the west side. There are service stations located on Broadway within 300 feet of Appellant’s property, both to the north and to the south. There are also numerous vacant and undeveloped lots in the immediate area of Appellant’s property.

Appellant commenced the acquisition of its lots in 1967 and purchased the last lot in 1972, all of which purchases were made after this Court handed down decisions in 1964, through 1966, approving F Commercial Zoning on South Broadway in this area. Prior to Appellant’s purchase, said lots had various zoning classifications. Before purchasing its largest and most expensive single tract from the Third Baptist Church at a cost of SI35,000.00, Appellant required and the church did join with Appellant in obtaining rezoning of all of the church’s and Appellant’s property in Block 206 to F Commercial in February 1971. Thereafter, Appellant renovated the church property for commercial use at a cost of 1100,000.00 and leased it to a tenant with usage clearly within the F Commercial classification. In 1972, Appellant purchased its last lot in Block 206 for a total investment of approximately $350,000.00. It requested that this last lot be rezoned F Commercial, but the City refused, and the same was classified E-l for quiet business use.

At the time of the 1972 application and hearing, the City Board of Directors requested the City Planning Commission to make a land use study of the South Broadway area from 14th Street to the North to Roosevelt on the South, Louisiana Street on the East to High Street on the West. The Planning Commission then reduced the area of its study to include a 63 block area bounded by 15th Street on the North, Roosevelt Road on the South, Center Street on the East, and the alley line between Chester and Izard Streets on the West. Appellant’s property in Block 206 being located on the West side of Broadway between 15th and 16th Street is in the extreme North edge of the study area. In February 1973, following the Planning Commission’s Study, the City adopted Ordinance No. 12,739 reclassifying and rezoning various properties in the South Broadway study area whereby all of Appellant’s property in Block 206 was rezoned from F Commercial District to E-l Quiet Business District over its objections.

Appellant then filed suit in the Pulaski Chancery Court seeking to restrain and enjoin the Appellee City from denying its use of its property for F Commercial purposes, alleging that the action of the City in rezoning its property was arbitrary, unreasonable,, capricious and unconstitutional as applied to Appellant. The Trial Court denied the relief requested and Appellant brings this appeal.

Prior to the trial in the Pulaski Chancery Court, and over Appellant’s objections, certain intervenors, who were property owners within the 63 Block area, were permitted to file interventions opposing the relief sought by Appellant. They have also filed a separate brief and argument in this appeal. We hold that this participation was not an abuse of the Chancellor’s discretion, as such interventions have been approved in other zoning cases. Fields v. City of Little Rock, 251 Ark. 811, 475 S.W. 2d 509.

We have also been favored with excellent amicus curiae briefs and arguments filed by the Little Rock and North Little Rock Board of Realtors, Inc. in support of the Appellant and in behalf of the Quapaw Quarter Association in support of the Appellee. These briefs and arguments have been considered by the Court.

Twenty-six (26) witnesses testified in this trial and numerous and voluminous exhibits were introduced into evidence. It would unduly prolong this Opinion to separately summarize the testimony of each witness or separately discuss each exhibit. Accordingly, after carefully reviewing all the evidence, we will merely summarize same as it applies to each party’s contentions and the applicable law.

Between 1960 and 1970 the census records for the City of Little Rock revealed that the South Broadway area included in Ordinance No. 12,739 decreased 11.1% in population while the City as a whole increased 23%; owner occupied property in the area was reduced 20.9% while for the City as a whole there was an increase of 41%; tenant occupied property in the area increased to 74.2% while for the'City as a whole tenant occupied property was only 40%; vacancy rate increased in the area to 15.4% while for the City as a whole it was only 6.6%; and employment, income, school age children and other factors reflect similar comparisons.

Numerous witnesses in behalf of the Appellant and Appellee testified to the effect that the area continued to be a declining neighborhood in the twilight zone or transition period which was obviously depressed with a high vacancy rate. They further testified that practically all of the building activity in the area was for the renovation of existing homes into multiple apartments and rooming houses and that there were no new family dwellings being constructed in the area, with the area adjacent to Appellant’s property becoming progressively undesirable for single family dwellings. Testimony further revealed that when an existing home or apartment building burned or deteriorated to the point it could not be used the property normally remained vacant or undeveloped.

The testimony from witnesses for both Appellant and Appellee clearly revealed that this trend evidenced by the census reports continued after 1970 and up until the time of the trial of this cause. In fact, Appellees’ own witnesses, Mr. Russell McLean, Chairman of the Little Rock Planning Commission, Mr. Jim Finch, a member of the Department of Community Development Staff, and Mr. Donald Venhaus, a Director of the Department of Community Development, all testified to the fact that the neighborhood adjoining Appellant’s property continued as a declining or depressed area with high vacancy rates, approximately two and one-half times that of the City of Little Rock as a whole.

Mr. Russell McLean, Chairman of the Little Rock Planning Commission and Appellees’ own expert witness, further testified that he would favor permitting F Commercial zoning on Broadway Street from 15th to 18th Street, which area includes all of Appellant’s property. Other witnesses testified in behalf of the Appellant to the effect that the highest and best use of Appellant’s property was for commercial purposes; and that the use of the former Baptist Church property at the time of the adoption of the rezoning ordinance was F Commercial and after the adoption of said ordinance it became a nonconforming use. Appellant’s witnesses further testified that the “rezoning” or “dezoning” of its property reduced the overall value by approximately $100,000.00 and Appellee did not seriously contest these figures nor did it offer any evidence to the contrary. The evidence further revealed that not one of the intervenors or any other property owner in the area objected to the rezoning of Appellant’s property to F Commercial in February 1971. Furthermore, the parties conceded in oral arguments before the Court that the rezoning of the property in question to F Commercial classification in February of 1971 was a proper and lawful act on the part of the City as of that time; and, therefore, we have to assume that it was justified under the facts and circumstances then and there existing.

We find that Appellant’s property and the area immediately adjacent thereto has not undergone any material change since our prior decisions involving Broadway properties in City of Little Rock v. Andres, 437 Ark. 658, 375 S.W. 2d 370 (1964); City of Little Rock v. Gardner, 239 Ark. 54, 386 S.W. 2d 923 (1965); and City of Little Rock v. Miles, 240 Ark. 735, 401 S.W. 2d 741 (1966).

Furthermore, we have held in numerous decisions that in determining whether or not a zoning ordinance is valid as to a certain litigant’s property, it is severable. This appeal involves only Appellant’s property and the ordinance as it applies to its property. Our holding in this cause does not affect the validity of the ordinance as it applies to other property that may have been rezoned or otherwise affected thereby in the 63 Block area. City of Little Rock v. Sun Building & Development Company, 199 Ark. 333, 135 S.W. 2d 582.

The issue is then whether or not the Chancellor’s findings that the City Zoning Authorities did not act arbitrarily in rezoning Appellant’s property is supported by a preponderance of the evidence. If so, the finding will be affirmed on appeal.

In determining the validity of the 1973 rezoning ordinance as it applies to Appellant’s property, we must emphasize that we have consistently recognized that zoning ordinances are valid as against constitutional objections only by reason of the police power, and further that such ordinance must bear some definite relation to the health, safety, morals and general welfare of the inhabitants of that part of the City affected by the ordinance. City of Blytheville, et al v. Harold Thompson, Sr., et al, 254 Ark. 46, 491 S.W. 2d 769.

As previously stated, zoning ordinances are valid only by reason of the police power and cannot be arbitrarily enforced. Such ordinances are in derogation of common law and operate to deprive an owner of property of a use thereof which would otherwise be lawful, and should be strictly construed in favor of the property owner. City of Little Rock v. Andres, 237 Ark. 658, 375 S.W. 2d 370.

This Court, while recognizing that the word “arbitrary” has several definitions, has recognized the following as the •most generally accepted usage: “Arising from unrestrained exercise of the will, caprice, or personal preference; based on random or convenience selection or choice, rather than on reason or nature.” City of Little Rock v. Parker, 241 Ark. 381, 407 S.W. 2d 921. Then, we have held that “arbitrary” also means decisive but unreasoned action and that “capricious” means not guided by steady judgment or purpose. City of Little Rock v. Habrle, 239 Ark. 1007, 395 S.W. 2d 751.

Appellee has admitted that it undertook the land use study in the area involved for the personal preference of overturning previous Supreme Court Opinions permitting spot or strip commercial zoning in the area in question. In this connection we must take note that Appellant’s property is one of the largest single tracts in the entire area owned by one person or firm and furthermore that the property is border line property located adjacent to established business zones and property actually being used for commercial purposes. It does not involve what is commonly referred to as “spot” or “strip” zoning.

In rezoning or dezoning Appellant’s property in February of 1973, the City of Little Rock has placed a more restrictive use on the property than that permitted in their February 1971 rezoning without any showing that such action would stabilize property values in the area or otherwise show any change of conditions that would justify this action, especially in view of the fact that Appellant, relying on the previous zoning classification, purchased portions of the property and made substantial additional expenditures and investments in upgrading portions of the property to be used for F Commercial purposes.

We find that over the two year period between February 1971 and February 1973, Appellant, in good faith relied upon its F Commercial zoning, incurred substantial expenses and obligations in upgrading its property without any complaint or objections from the Planning Commission, the City or its adjoining property owners. To uphold Appellee’s action would result in a substantial loss of Appellant’s investment, making such action inequitable and unjust. Tankersly Brothers Industries v. City of Fayetteville, 227 Ark. 130, 296 S.W. 2d 412.

Accordingly, we conclude that there was no public necessity or change in conditions affecting Appellant’s property between February 1971 and February 1973 that would justify the rezoning of same and that the acts of the Appellees in so doing were arbitrary and capricious with the result that the Chancellor’s findings in this particular case as it relates to the Appellant’s property are not supported by a preponderance of the evidence and the Decree is accordingly reversed.

It is so ordered.

Harris, C.J., and Fogleman, J., concur.

George Rose Smith, J., not participating.

Carleton Harris, Chief Justice,

concurring. I agree that the decree of the Pulaski Chancery Court (Third Division) must be reversed and this conclusion is predicated on the fact that not a single intervenor or property owner in the area objected to the rezoning of appellant’s property to “F” Commercial in February, 1971, and of course, this rezoning was entirely lawful and permissible at the time. However, while the majority opinion points out that our holding in this cause does not presently affect the validity of Ordinance No. 12, 739 reclassifying and rezoning various other properties in the South Broadway Study Area (a 63-block area described in the majority opinion), 1 desire, as far as my individual views are concerned, to emphasize that fact. In City of Little Rock v. Gardner, 239 Ark. 54, 386 S.W. 2d 923, I dissented to the holding of the majority that the city authorities were arbitrary in refusing to rezone certain property on Broadway from “D” Apartment District to “F” Commercial District. In that dissent, it was stated:

“The majority apparently depend almost entirely upon the recent case of City of Little Rock v. Andres, 237 Ark. 658, 375 S.W. 2d 370. That opinion contains language which would appear to hold that no part of Broadway is now suitable for residential purposes, but since Andres only actually involved a small area on Broadway, I have considered the ‘sweeping language’ as to the entire street to be nothing more than dicta

My views in this iespect have not changed, and my position in the litigation now before us is based entirely upon the fact situation set out in the opening sentence of this concurrence.

John A. Fogleman, Justice, concurring. I concur on the sole basis that the action of the city was arbitrary because there is evidence that there was no change in conditions justifying “dezoning” of appellant’s property after it was zoned F-l commercial but no substantial evidence that there was. To me, it follows, as a matter of course, that it would be equally arbitrary to deny the same zoning classification to appellant’s subsequently acquired adjoining property.

The occasion for my registering my agreement by separate opinion stems from my feeling that too much weight is being accorded our previous opinions in cases involving property on Broadway in Little Rock. I consider them res judicata as to the particular property involved in those cases on the basis of the particular evidence before the trial court in each case. Otherwise, they are only legal, not factual, precedent. To me, evidence showing changes since those decisions is wholly beside the point.

      This was two years before the present reclassification ordinance was passed.