author: JohN A. Fogleman, Justice.

text:
    Jimmy Dale WILSON v. STATE of Arkansas
    5330
    426 S. W. 2d 375
    Opinion delivered April 8, 1968
    [Rehearing denied May 6, 1968.]

      Jack Yates and Theron Agee, for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   JohN A. Fogleman, Justice.

Jimmy Dale Wilson lias appealed from his conviction of the crime of robbery, alleged to have been committed in the Ozark District of Franklin County, Arkansas, on August 26, 1967. The evidence was sufficient to support the verdict of the jury finding appellant guilty of the accusation of having, along with on© Loyd Miller, robbed one Joe Bartlett. For reversal appellant contends that the trial judge permitted the prosecuting attorney to exhibit, read questions from, and comment on a purported written, but unsigned, in-custody confession made by appellant in the presence of the prosecuting attorney, deputy prosecuting attorney, the sheriff, a deputy sheriff, the jailer and the secretary to the deputy prosecuting attorney.

Appellant was arrested by the Criminal Investigation Division of the State Police Department at the recruiting station in Little Rock on Tuesday following the Saturday on which the robbery was committed. While in custody in Little Rock he was identified by Dorothy Bartlett, the wife of the victim.

Sheriff W. Dee Gober was called as a witness by the State. After testifying that appellant was taken into custody in Little Rock, he stated that appellant made a statement after he was returned to Ozark. When the prosecuting' attorney asked the sheriff to state the circumstances surrounding the making of the statement, the trial judge properly recessed the trial and conducted a hearing in chambers to determine the admissibility of any statement made "by appellant. During this hearing, it was shown that the Criminal Investigation Division officers, in the presence of Sheriff Gober, advised appellant of his right to remain silent, his right to counsel and his right to stop answering questions at any time, and of the fact that anything he said might be used against him in court. Appellant was not questioned while in Little Rock and did not make any statement there. On the day following his arrest, appellant was brought back to Ozark. According to the sheriff, appellant asked, on the morning of September 1st, if the prosecuting attorney could come down so appellant could make a statement. The sheriff stated that Deputy Prosecuting Attorney Cravens came to a living room in the jail at 1 p.m. and again advised appellant of his constitutional rights and that appellant signed a statement in the presence of W. Dee Gober and M. P. McClellan relating to the giving of this advice. Sheriff Gober testified that a statement was then voluntarily given by appellant and that during the questioning appellant was repeatedly advised that he should not make the statement if he did not want to do so.

On cross-examination the sheriff stated that Wilson never did sign this statement. Appellant’s counsel then objected to the introduction of the oral statement, but the trial judge ruled that it was voluntary. Appellant’s attorney’s objection to the introduction of the unsigned written confession was sustained by the trial judge who ruled that the officer might not read the statement from the witness stand. No exceptions were taken by appellant to either ruling of the trial judge. At the conclusion of the hearing, the deputy prosecuting attorney stated that the written statement would be put in the file.

The first action to which appellant directs our attention was an examination of the witness Gober about a statement signed by appellant with reference to his constitutional rights. Upon objection by appellant’s counsel, the trial judge advised the prosecuting attorney that this statement was for the record on the hearing to determine the admissibility of statements made by appellant, but not to be introduced in the trial. No exceptions were taken to the trial judge’s ruling. No request was made for any further action by the trial judge. The prosecuting attorney did not pursue the matter further. Thus, reversal could not be predicated on this action, even if it had been erroneous. Bivens v. State, 242 Ark. 362, 413 S. W. 2d 653.

Sheriff Grober was examined and testified at length about oral statements made by appellant on the occasion he had described, without objection by appellant whose attorney cross-examined the witness about circumstances preceding and subsequent to the making of these statements. In the absence of any objection by appellant, the admissibility of these oral statements is not for our consideration on this appeal. Bivens v. State, supra. On the testimony presented to the trial judge, it seems that he was justified in finding that the statements were voluntary and that there was a conscious, intelligent waiver of constitutional'rights by appellant.

Appellant’s principal argument is directed toward an incident which occurred during the cross-examination of appellant by the prosecuting attorney about the statements. The entire record on this matter is as follows:

“THE COURT: I think it best that you put that paper back on the table, Mr. Rogers.
MR. YATES: If the Court please, we object to the use of the statement in the presence of the jury.
THE COURT: Both of you approach the bench.
MR. YATES: (Out of the hearing of the Jury) Comes the defendant and moves for a mistrial on the grounds that the Prosecuting Attorney is using an unsigned statement, not once but several times, and waving it before the Jury during cross-examination in strict violation of the instructions.
THE COURT: He has not been waving it before the Jury, and that motion is overruled.
MR. YATES: Save our exceptions.”

There is nothing in the record to indicate that the prosecuting attorney exhibited the unsigned statement, if indeed that is what the “paper” was, to the jury or that any of the jurors was able to see or identify the paper. The trial judge was in an excellent position to observe exactly what took place. Obviously he was alert, for he admonished the prosecuting attorney to put the paper on the table before any objection was made on behalf of appellant. Counsel suggests that the cross-examination of appellant was conducted by the prosecuting attorney by referring to the unsigned statement. Whether this is true or not, we cannot say that the denial of a motion for mistrial by the trial court was an abuse of its discretion in that regard.

Appellant relies on cases such as: Kasinger v. State, 234 Ark. 788, 354 S. W. 2d 718; Davis v. State, 243 Ark. 157, 419 S. W. 2d 125; Cabbiness v. State, 241 Ark. 898, 410 S. W. 2d 867; Anderson v. City of El Dorado, 243 Ark. 137, 418 S. W. 2d 801; Escobedo v. State of Illinois, 378 U. S. 478, 84 S. Ct. 1758, 12 L. Ed. 2d 977; Binns v. State, 233 Ark. 259, 344 S. W. 2d 841; Turner v. Pennsylvania, 338 U. S. 62, 69 S. Ct. 1352, 93 L. Ed. 1810; Watts v. Indiana, 338 U. S. 49, 69 S. Ct. 1347, 93 L. Ed. 1801; Miranda v. State of Arizona, 384 U. S. 436, 86 S. Ct. 1602,16 L. Ed. 2d 694. None of them, except the Miranda case, is applicable here.

In the Kasinger case there was rather convincing evidence that a confession admitted into evidence was involuntary. No evidence was offered in the hearing on the admissibility of appellant’s statements to indicate that the confession was involuntary. In Davis v. State, supra, the State’s evidence clearly showed that the oral confession constituting the principal evidence against Davis was elicited by interrogation after he had stated that he did not want to tell what had happened. No such evidence was offered in this case. In Gabbiness, the record clearly showed that the prosecuting attorney pursued a line of inquiry with reference to a weapon which the court had clearly held inadmissible. The record here does not disclose any like conduct on the part of the prosecuting attorney. As a matter of fact, the court’s ruling on appellant’s objection states facts contrary to appellant’s contention. In the Anderson case, the trial court held that the State had failed to meet the burden of proving that the defendant’s statement was made after he had been advised of his right to counsel. In this case the only evidence shows that appellant was advised of his right to counsel prior to his making any statement. In Escobedo, the accused was denied a positive request for advice of counsel during interrogation. There is no evidence of any request for counsel by appellant. In Binns v. State, the reversal was based on undisputed evidence that the defendant there was subjected to almost continuous interrogation for 52 hours before he made a confession. In the Watts and Turner cases there were similar periods of interrogation. Here, the evidence indicates that there was no prolonged interrogation, but that appellant himself indicated, without any questioning, that he wanted to make a statement.

The only evidence which the trial court had to consider on the question of appellant’s statements shows full compliance with the requirements of the Miranda decision.

Finding no error, we affirm the judgment.


source: Caselaw Access Project

author: John A. Fogleman, Justice.

license: Public Domain

text:
    Ira BOND v. Paul E. DUDLEY and Roy MOORE, d/b/a Dudley & Moore Auto Sales, a partnership
    5-4506
    426 S. W. 2d 780
    Opinion delivered April 8, 1968
    [Rehearing denied May 6, 1968.]

      Douglas Bradley, for appellant.

      H. L. Methvin and Frank Lady, for appellees.
   John A. Fogleman, Justice.

This appeal questions the priority of a security interest for purchase money of an automobile over a lien of a repairman. The judgment appealed from was entered in favor of appellees in their suit to replevy the motor vehicle from appellant. The evidence showed that appellees, used automobile dealers, sold the car to Randall and Deena (Dinky) Bishop on April 12, 1965 for $1,237.53, payable at $12.50 per week. A title retaining contract signed by the Bishops was filed with the Motor Vehicle Division of the Arkansas Revenue Department, and the certificate of title dated June 17, 1965, reflected a lien in favor of ap-pellees. Subsequently, on January 8, 1966, without the knowledge or consent of appellees, the purchasers had repair work done by appellant. The total cost of the parts and labor was $140.97, of which the Bishops paid only $20. Appellant kept the vehicle in his possession until February 14, 1966, when it was taken on the writ issued on the complaint of appellees. Appellant asserted his lien and prayed for the return of the vehicle or its value.

As his first ground for reversal, appellant asserts that the Uniform Commercial Code gives priority to his lien over the claim of appellees. In order to determine the question thus posed, it becomes necessary that we examine pertinent sections from the Secured Transactions Chapter of the Uniform Commercial Code. Ark. Stat. Ann. § 85-9-310 (Add. 1961) reads as follows:

“When a person in the ordinary course of his business furnishes services or materials with respect to goods subject to a security interest, a lien upon goods in the possession of such person given by statute or rule of law for such materials or services takes priority over a perfected security interest unless the lien is statutory and the statute expressly provides otherwise.”

Section 85-9-102(2) provides:

“This Article [chapter] applies to security interests created by contract including pledge, assignment, chattel mortgage, chattel trust, trust deed, factor’s lien, equipment trust, conditional sale, trust receipt, other lien or title retention contract and lease or consignment intended as security. This Article [chapter] does not apply to statutory liens except as provided in Section 9-310 [§ 85-9-310].”

The lien asserted by appellant is based upon Ark. Stat. Ann. § 51-412 (1947) which reads:

“Priority of lien. — The lien herein provided for shall take precedence over and be superior to any mortgage or other obligation attaching against said property in all cases where the holder of such mortgage or other obligation shall permit such property to remain in the possession and be used by the person owing and bound for the amount thereof; provided, that the lien herein provided for shall be subject to the lien of a vendor of automobiles, trucks, tractors and all other motor propelling conveyances retaining title therein, for any claim for balance of purchase money due thereon; provided, further, that said lien shall not take precedent [precedence] over a bona fide purchaser for value of any such automobile, truck, tractor and other motor propelled conveyances without -notice either actual or constructive. [Acts 1919, No. 140, § 9, p. 123; # # # j 97

Appellant asserts the priority of his lien upon the contention that it is a common law lien not dependent on statute, citing Gardner v. First National Bank, 122 Ark. 464, 184 S. W. 51. On the other hand, appellees say that the right to the lien is entirely statutory, citing Commercial Credit Company v. Hayes-Lamb Motor Co., 174 Ark. 945, 298 S. W. 217.

In the absence of any statute on the subject, a common law lien in favor of mechanics repairing automobiles was recognized in Arkansas. It has been held, however, that the lien which arose under the common law was superseded by the statutory lien created by Act 147 of 1903 (Kirby’s Digest 5013 — 5016). J. M. Lowe Auto Co. v. Winkler, 127 Ark. 433, 191 S. W. 927. That act was, in turn, superseded by Act 140 of 1919 [Ark. Stat. Ann. § 51-402 — 51-412]. Consequently, the lien of appellant is a statutory lien in the sense of Ark. Stat. Ann. § 85-9-310.

Appellant contends, however, that the security interest of a seller under the Uniform Commercial Code does not constitute the lien of a vendor of automobiles retaining title for his claim for a balance of the purchase money under § 51-412. We do not agree. To so hold would put form above substance. The mere fact that the lien of a conditional sale contract is now called a security interest does not so destroy its identity or character as to render nugatory the otherwise applicable proviso in the artisan’s lien statute. Our position is substantiated by the comment on § 85-9-310 in which the Code draftsmen say, “Some of the statutes creating such liens expressly make the lien subordinate to a prior security interest. This section does not repeal such statutory provisions. ’ ’ At the time this comment was written it is unlikely that any state statute classified the lien of a vendor under a title retaining contract as a “security interest.” This name for the various classes of liens now included within its scope probably came into existence through the drafting of the Code.

A similar result has been reached by the Supreme Court of Alaska under a statute making the artisan’s lien on a motor vehicle subordinate to conditional sales contracts properly filed before the vehicle comes into possession of the lien claimant. Decker v. Aurora Motors, Inc., 409 P. 2d 603 (Alaska 1966). The Superior Court of New Jersey, appellate division, has also reached the same result. National State Bank of Newark v. Rapp, 90 N. J., Super 300, 217 A. 2d 325.

Neither Corbin Deposit Bank v. King, 384 S. W. 2d 302 (Ky. 1964), Schleimer v. Arrowhead Garage, Inc., 46 Misc. 2d 607, 260 NYS 2d 271 (1965), nor Westlake Finance Co. v. Spearmon, 64 Ill. App. 2d 342, 213 N. E. 2d 80 (1965), cited by appellant, are persuasive because of differences in the applicable repairman’s lien statutes. The Kentucky court said that its statute contained no provision subordinating its lien to an earlier security interest. Reference to the statute discloses no provision making the lien subject to any other lien by any name or designation. The garageman’s lien statute involved in the New York case specifically makes the lien superior to a security interest. The Illinois statute made the lien subject only to the lien of a bona fide chattel mortgage previously recorded. While Illinois case law had extended the chattel mortgage priority to the holder in due course of a conditional sales contract, the Illinois court held that its statute did not expressly make the lien subordinate to a conditional sale contract, as required by the Uniform Commercial Code.

Appellant also contends that appellees failed to prove that they had a lien or other interest in the automobile to support their possessory action. This argument is based largely on his contention that the title certificate and note were not properly introduced as evidence. Appellee Moore identified a photostatic copy of the title certificate. After appellant objected to the introduction of the copy, the witness explained that ap-pellees had again sold the vehicle and had endorsed the original certificate to show this sale and that the certificate had then been sent to the “State of Arkansas.” The witness also testified from and identified a photostatic copy of the title retaining note. The record recites that these instruments were handed to the court without any objection being made by appellant. Both the witness and his counsel referred to the instruments, and the witness read from the note. While the instruments were not marked as exhibits, it is obvious that the court and all of the parties considered that they were in evidence and so treated them. While the judgment does not specifically state that the court considered these instruments as exhibits, its specific findings that the automobile was sold on April 12, 1965, to Bishop under a title retaining sales contract signed by the Bishops and filed with the Motor Vehicle Division of the Arkansas Revenue Department, that the title issued by that division showed a lien for $1,237.53, and that the balance due appellees was $900, clearly show that these instruments were considered by the court.

In a trial before the court without a jury, this procedure was sufficient to constitute an introduction of the documents in evidence in absence of any objection by appellant to excerpts therefrom being read by the witness or to their being handed to the trial judge. In Austin Western Road Machinery Co. v. Blair, 190 Ark. 996, 82 S. W. 2d 528, it was contended on appeal that a pertinent county court order was not introduced in evidence. We said:

“* * * It is insisted that the order last mentioned was not introduced by appellee. This contention is based on the fact that the testimony fails to show that the order was read in open court. The evidence is to the effect that the clerk was requested to turn to a certain page of a particular record of the court and to read the order. He answered, ‘This order is dated June 16, 1930, calling in all county warrants,* and, when asked whether or not the warrant involved (No. 91) was shown to have been filed, reissued, and classified, he answered in the negative. The appellant was present by attorney who had the opportunity to examine the record and might have had the order read if he so desired. We are of the opinion that this was a sufficient introduction of the order. ’ ’

It is apparent that the parties understood that the validity of appellees’ lien was not an issue in the case. The real issue was the priority of the liens. This is clearly shown by this colloquy among the trial judge and the attorneys at the conclusion of the hearing:

“'COURT: I believe the only issue before the court is which lien has the priority?
MR. METHVIN: Yes, sir.
COURT: I believe the burden of proof is upon the defendant, isn’t it?
MR. METHVTN: Yes, sir.
MR. BRADLEY: Why the defendant?
COURT: Because in your answer you claim a lien in preference of the lien claimed by the plaintiff.
MR. BRADLEY: He alleged the lien in the first place.
COURT: That is true, but you don’t deny he had a lien for the purchase price. You just state your lien comes before the lien for the purchase price.
MR. BRADLEY: I don’t think it makes much difference.
MR. METHVIN: This is a rather vital question and if your honor would like us to submit short written briefs on it, I wouldn’t mind doing that. This thing involves not only this sale, hut many other sales.
COURT: Do you want to submit the question on written briefs or argue it?
MR. BRADLEY: I would rather argue it and get it over with.
COURT: All right. You may proceed.”

Appellees’ attorney had made an opening statement reciting the execution and filing of the title retaining note and the issuance of the title certificate showing the lien of appellees. He also stated that his clients contended that the purchase price lien shown in the certificate was prior and superior to the lien claimed by appellant, but that appellant contended that his lien had priority. Appellant’s counsel responded that he did not see any point in making a statement.

While appellant’s attorney did not specifically agree that the question of priority was the only issue, he certainly had a duty to advise the trial judge if he disagreed. His silence constituted at least a tacit acquiescence in the judge’s statements relative to the issues and burden. A party, by his conduct during the trial, may effectively abandon an issue made by the pleadings, so that he cannot rely on it in this court. Arkansas Real Estate Company, Inc. v. Keaton, 215 Ark. 179, 220 S. W. 2d 129.

Cases from other jurisdictions making an application of the rules stated in the Keaton case are appropriate and particularly applicable to this situation. Where a party causes a court to understand that certain facts are admitted, he cannot object to a hearing being conducted on the basis of that understanding. Sundgren v. Sundgren, 363 P. 2d 853 (Okla. 1961). Even though an issue is made by the pleadings, a failure of the party appealing to mention it on oral argument or to discuss it in briefs in the trial court prevents his raising the question on appeal. Shockley v. Abbott Supply Company, 50 Del. 510, 135 A. 2d 607 (1957). Where a case arising from a motor vehicle collision was tried on the assumption that there was no issue as to the death of a driver of the defendant’s vehicle, and there was no contention that proof thereof could not have been readily afforded had anyone considered it necessary, appellant could not raise the argument on appeal that there was no direct proof of death. Neilsen v. Uyechi, 172 Cal. App. 2d 508, 342 P. 2d 329 (1959).

The failure of appellant to question the court’s statement as to the only issue before the court would certainly have led the trial court to understand that no issue was being made as to the proof of appellees’ security interest.

We think that the evidence was sufficient to support the judgment, but even if it were not, appellant’s conduct justified the court in proceeding upon the theory that the only issue to be determined was that pertaining to priority of liens.

The judgment is affirmed.

Byrd, J., concurs.


author: Carleton Harris, Chief Justice.

text:
    R. T. PHILLIPS v. ARKANSAS REAL ESTATE COMMISSION
    5-4437
    426 S. W. 2d 412
    Opinion delivered April 15, 1968

      Thomas D. Ledbetter, for appellant.

      Griffin Smith, for appellee.
   Carleton Harris, Chief Justice.

This action was instituted by appellee in the Pulaski Chancery Court by complaint against appellant, R. T. Phillips, a resident of Jasper, Newton County, wherein appellee, Arkansas Real Estate Commission, asserted that appellant had been guilty of violating the statutes generally known as the Arkansas Real Estate Brokers Act. The complaint, in effect, alleges that Phillips acted as a real estate agent, without being licensed, in handlings a real estate transaction between Keith J. Smith of Houston, Texas, and Don and Darlene G-ronwaldt, residents of Newton County. More specifically, it was asserted that on October 24,1966, Phillips prepared and forwarded to Smith an option to purchase the property from Phillips for the sum of $34,000.00. Consideration for the option was $3,000.00, which Smith forwarded on November 4, when returning the executed instrument. On November 5, 1966, Phillips secured an option to purchase the Gron-waldt land, in his own name, the consideration being $2,000.00, and the price of the property being set at $24,000.00. Summons was issued and served on Phillips, and appellant filed a demurrer. The Chancellor overruled this pleading, and Phillips then filed an answer, in which he admitted that he held no license to act as a broker or agent; admitted that he was a party to the two executed contracts, but it was denied that appellant had acted as a real estate agent, and it was asserted that his acts were not in violation of any law. The deposition of Smith was taken in Texas, and the case was set for trial. Phillips moved for a continuance, alleging that he was unable to attend court because of illness; however, he did not present the motion to the court, nor appear with any evidence to support it. The court held that no adequate grounds for continuance had been shown, and overruled the motion. Some time subsequent thereto, the case proceeded to trial, Phillips not being present. Appellee offered the deposition of Keith Smith, and the testimony of Don Hadfield, secretary of the real estate board, and Don Gronwaldt, and copies of the option agreements between the Gronwaldts and Phillips, and Smith and Phillips were offered in evidence. The court found that Phillips had:

“* * * violated the Arkansas Real Estate Brokers Act, Ark. Stats. S. 71-1302, by entering an agreement with Mr. and Mrs. Gronwaldt to sell their land, known as Buffalo Basin Guest Ranch, to Mr. and Mrs. Keith Smith, for compensation, and in so doing acted as a real estate broker, without being licensed.”

Appellant was enjoined from acting as a real estate broker until he was issued a valid license by the Arkansas Real Estate Commission, the decree enjoining him from committing the acts set out in the first paragraph of Ark. Stat. Ann. § 71-1302 (Repl. 1957), and further:

(<**•* from taking options on real estate for the purpose of effectuating a sale by the owner to a third party, or arranging for options taken in another’s name in order to effectuate sale.”

He was also specifically enjoined from attempting to enforce any rights out of the transaction in which he participated concerning the sale of Buffalo Basin Guest Ranch.

This decree was entered on June 13, 1967, and on June 30, appellant moved the court to alter its decree, again asserting that he had not violated the Arkansas Real Estate Brokers Act, and contending that the provisions of the decree went beyond the scope of the relief sought by appellee in its complaint. This motion was denied. Thereupon appellant gave notice of appeal. On August 17, appellee moved the trial court to cite appellant to show cause why he should not be punished for contempt, it being alleged that Phillips was seeking to enforce contract rights under his option from the Gron-waldts to purchase their property. The matter of contempt is being held in abeyance until this court passes on the validity of the court’s original decree.

Phillips relies upon several points for reversal, which we proceed to discuss. It is first asserted that appellant was entitled to all constitutional guarantees of criminal proceedings, because tbe Arkansas Beal Estate Brokers Act is criminal in nature. This assertion is based on the fact that Ark. Stat. Ann. § 71-1301 (Bepl. 1957) provides that one who acts as a real estate broker or salesman in Arkansas without first having obtained a license is guilty of a misdemeanor, and subject to fine and imprisonment. Appellant argues that the present action is a criminal action, and he is entitled to a jury trial in the county in which the alleged crime was committed (Newton County), and that his rights have been violated. We do not agree, and this point has been decided contrary to appellant’s contention. In Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S. W. 2d 538, a similar argument was presented, and this court disagreed, saying:

“* * * the relief sought by those complaining was not to enjoin the commission of a crime, as such. The purpose, primarily, was to prevent illegal practice of optometry. Cessation of the practice — not punishment for past acts — was the end.
“The Board has nothing to do with prevention of crime; nor is it concerned with punishment. But under § 15 of Act 94 it is authorized to invoke injunctive aid as a means of protection.”

Here, also, the real estate commission is not concerned with punishment, but is rather invoking injunc-tive aid, which is authorized by Ark. Stat. Ann. § 71-1311, as follows:

“Upon petition of any member of the Commission [real estate], its secretary, or any holder of a license thereunder^ the chancery court shall enjoin a violation of this Act if and when it shall appear that such action is necessary to protect the interest of those who have complied with the terms of this Act and who are- operating legitimately.”

Appellant next makes an attack on the constitutionality of the act, asserting that, “The rights to contract and to hold property are more fundamental than the laws of the land.” We need not discuss this contention, since the act, now under attack, was held constitutional in the case of State v. Hurlock, 185 Ark. 807, 49 S. W. 2d 611.

The deposition of Keith Smith relates that Smith, while riding through Jasper, saw a sign in a store occupied by Phillips, “Land for Sale.” He met with Phillips and was shown 200 acres of. land, which was owned by appellant, and Smith purchased it from him. Later, they again met, and discussed the possibilities of building a home on that tract. According to the witness, Phillips then stated that he could show a piece of land to Smith that already had a home on it, and the two went to the lodge known as the Buffalo Basin Guest Ranch, owned by the Gronwaldts, and obtained their permission to look over the premises. Smith was interested in purchasing the property, and Phillips told him that it could be bought for $24,000.00, plus the 200 acres purchased, or $34,000.00 cash. After Smith returned to Texas, several telephone conversations were engaged in between Smith and Phillips. Smith said that Phillips was not quite sure that he would be able to trade in the 200 acres, “and he suggested then that he would send an option agreement, and by the time he sent the option agreement he said it could not longer be bought for a $2,000.00 payment on the option, that it had to be $3,-000.00.” Appellant requested that Smith send him the money to buy the option, and the witness mailed Phillips a check in the amount of $3,000.00. 'Smith’s evidence is the only evidence that appears of record, though Gron-waldt, owner of the property involved, also testified, along with Don Hadfield; the testimony of these two witnesses was not reported.

Appellant contends that the court’s original decree "went much farther than permitted by the pleadings, stating:

“In the instant case the only prayer for relief was that appellant ‘he enjoined from further [our emphasis] violation of the Arkansas Real Estate Brokers Act.’ Under the decree and permanent injunction appellant is not only prohibited from acting as real estate broker, hut he also is ‘enjoined from attempting to enforce any rights out of the transaction in which he participated concerning the sale of Buffalo Basin Guest Ranch.’ It is this final portion of the decree which appellant asserts is not within the scope of relief sought and should not have been granted in a judgment taken by default, at which appellant was not present.”

Appellant apparently takes the position that the court’s injunction was only properly applicable to all transactions which might commence subsequent to the date of such injunction, and he argues that, in prohibiting him from proceeding further with the Smith-Gronwaldt transaction, the court granted relief which was not sought in the complaint. We do not agree. The complaint very definitely is based on appellant’s dealings with Smith and Gronwaldt, and if that relationship was in violation of the Arkansas Real Estate Brokers Act, certainly the court had a right to enjoin Phillips from endeavoring to enforce any alleged rights concerning the sale of the Buffalo Basin Guest Ranch. The law does not permit a man to violate the law, even once, and an injunction from “further violation of the Arkansas Real Estate Brokers Act” applies just as much to further acts in connection with enforcing the agreement in question (if it is unlawful), as to future transactions, which have never yet commenced. Of course, appellant’s argument is based on the premise that no violation was committed, i. e., Phillips was only contracting to buy property for himself (from Gronwaldt) and then intended selling that same property to Smith. In other words, Smith was buying the property — not from Gronwaldt— but from Phillips.

The record does not bear out appellant’s contention. In the first place, he escorted Smith to see, and encouraged him to buy, a piece of property which did not belong to appellant, but belonged to the Gronwaldts. It is true that Phillips, in preparing his option with Smith, presented himself as the owner, but it is noticeable that he did not acquire the option from Gronwaldt until after he received Smith’s check (November 5, 1966) — and it might be added that there is no evidence in the record that he was borrowing money from Smith in order to buy the property. On October 24, 1966, the date of the option from Phillips to Smith, appellant had no interest in the Gronwaldt property at all. Other pertinent language appears in the Phillips to Smith option. After setting out (on a printed option form) that Phillips and his wife would convey the property to Smith, the following words are typed into the instrument, “or cause to be done.” This, of course, can only mean that Phillips will either deed the property himself or get the Gronwaldts to do it. In handling both ends of this transaction, Phillips stood to make $1,000.00 on the option (obtaining option from Gronwaldt for $2,000.00, and giving option to Smith for $3,000.00), and on the entire transaction, he stood to make a profit of $10,000.00 (agreeing to buy the property from Gronwaldt for $24,-000.00, and agreeing to sell it to Smith for $34,000.00). Of course, the amount of profit made would have no bearing on this litigation if a bona fide sale of appellant’s own property were involved. But we cannot agree that this was that sort of transaction.

We think the instruments offered into evidence, and Smith’s testimony, make it clear that the proposed “purchase” by Phillips was only a means used to evade the statute in question, and it must also be remembered that Mr. Gronwaldt testified. The testimony of Gron-waldt and Hadfield apparently was not taken for the record, and we have no idea what the former testified to, but certainly it dealt with his transaction with Phillips. We have said many times that where there is a failure to bring into the record the testimony presented to the trial court, it must be presumed that the testimony ivas sufficient to support the findings of the court. In Watson v. Jones, 233 Ark. 203, 343 S. W. 2d 415 (1961), this court stated:

“* * * We have held in many instances that where there is a failure to bring into the record the testimony presented to the trial court, it must be conclusively presumed [our emphasis] that the testimony supported the trial court’s findings. [Citing cases]”

In the case before us, this simply means that there is a conclusive presumption that the testimony- of Mr. Grronwaldt, and that of Don Hadfield, supported the finding of the trial court that appellant had violated the Arkansas Real Estate Brokers Act.

We agree with appellant that the prayer for relief in appellee’s complaint cannot be amended, or broadened, since appellant did not appear for trial. But we do not agree that that happened in this instance. The complaint alleges that Phillips had no license (which is admitted by appellant), and sets out the transactions between Phillips, G-ronwaldt, and Smith; it is asserted that these acts are violative of the Arkansas Brokers Act, and the prayer is that Phillips be enjoined from further violation. We think the evidence in the record, and also under our holdings, that which is not in the record, supports the findings of the Chancellor and justifies the relief which was sought.

Affirmed.

       This action was brought under the provisions of Ark. Stat. Ann. § 27-603 (Repl. 1962).

       The record reflects that Phillips has instituted a suit in the Newton County Chancery Court, wherein it is asserted that the G-ronwaldts are “currently in the process” of transferring- the ranch to .Smith (by-passing appellant), and he asks for specific performance of his own contract, or damages against the defendants.

       This is not an instance where the record was abbreviated by agreement, or without objection, as provided in Section 12 of Act 555 of 1953.


author: George Rose Smith, Justice.

text:
    Margaret G. SANDERS v. Robert KEENAN and Delma MERRITT
    5-4538
    426 S. W. 2d 399
    Opinion delivered April 15, 1968

      Laws & Schulze, for appellant.

      Williams & Gardner, for appellees.
   George Rose Smith, Justice.

This is an action in unlawful detainer brought by the appellant, Margaret Gr. Sanders, in March, 1966, to recover possession of a farm in Yell county. The two defendants — Robert Keenan, who was Mrs. Sanders’s tenant under a written one-year lease which expired on December 31, 1965, and Delma Merritt, who was Keenan’s subtenant — retained possession of the land during the year 1966 by executing a bond for retention of the property. Ark. Stat. Ann. § 34-1510 (Repl. 1962). In the court below Mrs. Sanders obtained a $5,000 verdict and judgment against Merritt only. Her principal contentions for reversal are that the trial court erred (a) in directing a verdict for Keenan, and (b) in refusing to submit to the jury her claim for triple damages under the statute.

Over a period of about forty years the farm in question was the subject of an annual Sanders-Keenan lease. At first the lessor was the plaintiff’s husband; after his death it was Mrs. Sanders herself. At first the lessee was Dan Keenan; after his death it was his son, the defendant Robert Keenan. The 1965 lease, which adhered to a form used by the parties for several years, specified a rental of $5,000, payable in installments of $2,000 on October. 15, 1965, $1,500 on November 15, and $1,500 on December 15. It is conceded that Keenan paid the 1965 rental and that the parties — apparently for the first time in some forty years — did not agree upon a lease for 1966.

We consider first the court’s action in directing a verdict in favor of Keenan. Merritt had been Keenan’s subtenant for several years. Merritt testified that Keenan did not finance Merritt’s farming operations in 1966, as he had done in prior years. Merritt went on to say, in response to a question by the court, that Keenan had no interest at all in the 1966 farming operations. Keenan did not elect to testify. Upon that state of the record, as far as the defendants’ testimony was concerned, the trial court concluded, with some expressed doubt, that Keenan was entitled to a directed verdict.

The court was in error. It is settled by decisions far too numerous for citation that a verdict ought not to he directed against the plaintiff if there is any substantial evidence to support a finding in favor of the plaintiff. Here there are no fewer than three considerations that might have induced the jury to find that Keenan was actually a participant, as a tenant, in the detention of the land in 1966. First, during the year 1966 Keenan sent Mrs. Sanders a $5,000 check for the annual rent (which was not accepted). That same check was again tendered to the plaintiff at the beginning of the trial. Secondly, Keenan hnd Merritt, as joint principals, executed the bond to retain possession of the farm during 1966, after the suit had been filed. Thirdly, the answer filed in the case by the two defendants, Keenan and Merritt, admitted that ‘‘the Defendants have remained in possession of said lands since the first day of January, 1966.” Despite the possibility that the pleadings may be amended before the case is tried anew, Stucker v. Hartford Acc. & Ind. Co., 222 Ark. 268, 258 S. W. 2d 544 (1953), we must determine the present appeal upon the record presented. Any one of those three considerations might well be a basis for denying Keenan’s motion for a directed verdict. The combined thrust of all three is irresistible.

The remaining issue is that of the appellees’ possible liability for multiple damages. At the trial the plaintiff requested an instruction under the triple damage statute, Ark. Stat. Ann. § 34-1516, but the court refused that request and submitted only the issue of Merritt’s liability for single damages (Keenan having already received a directed verdict, as we have said).

The court was right in excluding the issue of triple damages. Under the statute such damages are recoverable only for the unlawful detention of property that is used either for commercial or for mixed residential and commercial purposes. Section 34-1516. Multiple damage statutes, being penal, must be strictly construed. Missouri Pac. R. R. v. Lester, 219 Ark. 413, 242 S. W. 2d 714, 27 A. L. R. 2d 1182 (1951). “Commercial” means pertaining to commerce, which is ordinarily defined as the exchange or buying and selling of commodities. Webster’s Second New International Dictionary; Random House Dictionary of the English Language. Under that definition statutes relating to commercial purposes, even when not strictly construed, are not considered to be applicable to agricultural pursuits. Terrace v. Thompson, 263 U. S. 197 (1923); Jones v. Johnson, 80 Ga. App. 340, 55 S. E. 2d 904 ,(1949); Armand v. Bordelon, La. App., 53 So. 2d 168 (1951); Partridge v. Blackbird, Minn., 6 N. W. 2d 250 (1942). In the case at bar our statute, a fortiori, must be narrowly interpreted.

The appellant’s brief, more or less in passing, also suggests alternatively that she would in any event be entitled to an instruction under the double damage statute. Ark. Stat. Ann. § 50-509 (1947). The theory of a recovery under that statute was not in issue at the first trial, under either the pleadings or the requested instructions. We do not feel called upon to speculate about its possible relevance when the case' is tried anew. The appellant also complains of the trial court’s refusal to give her Instruction No. 1. Part of that instruction — a reference to the tenants’ belief that they owned the land— was abstract; so it should not be given, in the form requested, upon a new trial.

As to Keenan, the judgment is reversed and the cause remanded for a new trial. As to Merritt, the judgment is affirmed, no error prejudicial to the appellant having been shown with respect to Merritt.


text:
    ARKANSAS STATE HOSPITAL v. ESTATE OF GRACE BROOKS CULVER, An Incompetent
    5-4543
    426 S. W. 2d 374
    Opinion delivered April 15, 1968

      Douglas Bradley, for appellant.

      George H. Steimel, for appellee.
   George Rose Smith, Justice.

Since 1947 Grace Brooks Culver, a mentally incompetent woman, has been almost continuously confined to the State Hospital. In 1966 Mrs. Culver inherited $12,388.03, which was paid to her guardian. The State Hospital then filed a claim in the probate court against Mrs. Culver’s estate for $16,268.74, which is shown to be the sum due the State Hospital for her maintenance and treatment during the years of her confinement, nothing having ever been paid upon the account. This appeal is from a probate court order allowing the claim for three years only, in the amount of $5,280.

Counsel for the guardian concede, with candor, that there is no applicable statute of limitations with respect to the State Hospital’s assertion of a claim of this kind. Cruce v. Ark. State Hospital, 241 Ark. 680, 409 S. W. 2d 342 (1966); Alcorn v. Ark. State Hospital, 236 Ark. 665, 367 S. W. 2d 737 (1963). In fact, counsel’s only argument against a reversal is the forlorn suggestion that the court’s order is not a final judgment, for the reason that the allowance of part of the State Hospital’s claim was not accompanied by an express disallowance of the rest of it. Such a contention does not deserve serious discussion.

Reversed and remanded for the entry of an order allowing the claim.


author: Paul Ward, Justice. George Rose Smith, Justice,

text:
    Lucy Lee ROBBINS v. Miles GUY and Ethel Ford GUY
    5-4513
    426 S. W. 2d 393
    Opinion delivered April 15, 1968

      Wilton E. Steed, for appellant.

      Joe Holmes, for appellees.
   Paul Ward, Justice.

This appeal comes from a Chancery Court order setting aside the Commissioner’s sale of land in a foreclosure suit.

Miles Guy and his wife (appellees) executed a note for $550 to Lucie Lee Robbins (appellant), and to secure payment they also executed a deed of trust on Lot 4 in Block 6 in Waters’ Addition to the City of Pine Bluff. Upon default, appellant filed suit against appel-lees, securing a judgment for $537.14 (including costs) and also an order to sell the security. At the Commissioner’s sale, appellant bought the property for the amount of the judgment. The trial court confirmed the sale, and ordered the property turned over to appellant, who later sold it to a third party.

At the same term of the Chancery Court appellees filed a Motion to set aside the sale on the ground that the price paid by appellant was inadequate. After hearing testimony on behalf of both parties the court granted appellees’ Motion, holding “that the property herein sold for an inadequate price”. The court then canceled the sale to appellant and ordered a resale of the property by the Commissioner after giving proper notice, hence this appeal.

Appellant now seeks a reversal on the ground of insufficient evidexice to sustain the action of the trial court in setting aside the sale, and we agree.

There is no contention by appellees that there was any irregularity, any mistake, or any fraudulent conduct in the entire proceedings. That being the state of the record before us, the trial court erred in setting the sale aside.

In Free v. Harris, 181 Ark. 644, 27. S. W. 2d 510, the Court, on facts similar to those in this case, said:

“Mere inadequacy of consideration, however gross, unaccompanied by fraud, unfairness or other inequitable conduct in connection with the sale, is of itself insufficient to justify the court in setting the sale aside and refusing confirmation.”
# # #
“It is of the greatest importance to encourage bidding by giving to every bidder the benefit of bids made in good faith and without collusion or misconduct, and at least when the price offered is not unconscionably below the market value of the property. ’ ’

In Union & Planters’ Bank & Trust Company v. Pope, 176 Ark. 1023, 5 S. W. 2d 330, there appears this language :

“'While this court has held that mere inadequacy of price will not justify a chancery court in refusing to approve a sale and deprive a purchaser of the benefits of his purchase, yet, if a purchaser has been guilty of any unfairness or has taken any undue advantage, the sale will be regarded as fraudulent, and the party injured will be permitted to set aside the sale.”

The above cited cases have never been overruled.

Our attention has been called to the case of The Security Bank of Branson, Missouri v. Speer, 203 Ark. 562, 157 S. W. 2d 775, where this Court held that during the same term, at which a judgment or order is rendered, it remains subject to the plenary control of the court, and may be vacated, set aside, modified or annulled. However, in the case of Summars v. Wilson, 205 Ark. 923, 171 S. W. 2d 944 where the Speer case was cited, this Court either interpreted the Speer decision to hold or reversed it to hold that while the trial court had the power to set aside its judgments or orders (in term time) it could do so only by exercising sound discretion. There we said:

“Judicial sales are not to be treated lightly. The courts should not reject a sale and refuse a confirmation for captious reasons, hut only in the exercise of sound discretion. The trial court is vested with sound judicial discretion in these matters; and the appellate court, in reviewing the action of a trial court to see if there has been an abuse of discretion, does not substitute its own decision for that of the trial court, but merely reviews the case to see whether the decision was within the latitude of decisions which a judge or court could make in a case like the one being reviewed. Just as the law’s standard of conduct is the ordinary, reasonable, prudent man, so in reviewing the exercise of discretion, the test is whether the ordinary, reasonable, prudent judge, under all the facts and circumstances before him would have reached the conclusion that was reached. ’ ’

In any event, we now choose to follow the rule announced in the Summars case.

We cannot agree with appellees’ contention that the low price paid for the property ($537.14) was unconscionable and therefore justified the court in setting the sale aside. This is on the basis that the property was worth $1,000, but the testimony does not justify that figure. It is true that appellees’ attorney testified (over strenuous objections) that he believed the property was worth $1,000. Another witness, who was contacted by appellees to secure a loan and who examined the property, stated that he would advance $1,000 provided it would be used to pay off the judgment and the balance used to improve the house. Another witness, who had recently inspected the property, valued the property at not more than $575.

Appellees say the trial court should be affirmed because appellant failed to comply with Rule 9 (d) of this Court. We do not find this to be the case. Appellant’s brief contains an abstract of all material parts of the pleadings, the testimony and the decree. The Rule requires only such matters that “are necessary to an understanding of all questions presented to the court for decision”. This requirement has been met by appellant.

It is our opinion that the trial court erred in setting aside the sale and in ordering a resale.

The decree of the trial court is therefore reversed.

Smith, J., concurs.

Fogleman, J., dissents.

George Rose Smith, Justice,

concurring. I should like to discuss two cases, not mentioned by the majority, which seems to answer the argument made in the dissenting opinion.

In George v. Norwood, 77 Ark. 216, 91 S. W. 557 (1905), the property was sold at a public sale for $4,000. One of the parties objected to confirmation, on the ground that the price was grossly inadequate. The objector offered to bid $5,000 at a resale. The chancellor offered to permit the successful bidder to increase his bid to $5,000, but the bidder refused to do so. The chancellor then set the sale aside and accepted the party’s higher bid of $5,000. We first observed that a judicial sale should not be set aside for mere inadequacy of price unless the inadequacy “be so great as to shock the conscience or raise a presumption of fraud or unfairness.” We then went on to point out that a court does not have an arbitrary right to refuse to confirm a judicial sale, saying:

“'Courts have adopted as a wise public policy, the rule that confidence in the stability of judicial sales should be maintained, so that competitive bidding may be encouraged by the assurance that, in the absence of fraud or misconduct, the highest bidder will be accepted as the purchaser of the property offered for sale. And, while it is often said that the accepted bidder at such a sale acquires no independent rights until the sale be confirmed by the court, and that the court may exercise a discretion in either confirming or rejecting the sale, yet this discretion must be exercised according to fixed rules, and not arbitrarily, and the bidder has the right to insist upon its exercise, in this manner only. He can insist that his purchase be not set aside by the court upon reasons which are condemned.”

In reversing the chancellor’s decree we closed our opinion with these words:

“If the chancellor had, under the proof, approved this sale, our duty to affirm his decision would be plain, for it is undisputed that the sale was regularly made in accordance with the order of the court, and was free from any fraud or misconduct, and the evidence shows that the price bid was not inadequate. .
“That being true, the purchaser had the right to insist upon a confirmation of the sale, and it is equally our duty to protect that right and to reverse a decision of the chancellor denying it. In other words, the decision refusing to confirm the sale under the proof presented by the record can not be said to be proper exercise of the discretion of the court, and must be reversed.
“The decree is therefore reversed, and the cause remanded, with directions to confirm the sale to appellant upon compliance by him with the terms of his bid.”

Thus the George case unmistakably holds that mere inadequacy of price (which is all that is shown in the ease at bar) is not a sufficient basis for tbe chancellor’s refusal to confirm a judicial sale and, further, that we will reverse such a decree and direct that the sale be confirmed.

The same principle was applied in Federal Land Bank v. Floyd, 187 Ark. 616, 61 S. W. 2d 449 (1933), which I cite because there as here the highest bidder was the judgment creditor, who merely credited his bid upon the judgment, leaving a deficiency. Upon testimony that the. property had brought only half its value the chancellor refused confirmation and ordered a resale. We held that the highest bidder had a vested right to confirmation, saying: “Therefore, it seems that this court is committed to the doctrine that a purchaser at a commissioner’s sale takes a vested interest by reason of the purchase, and confirmation follows as a matter of right [my italics], unless it be found that fraud entered into the transaction or else the price bid and offered was so grossly inadequate as to shock one’s sense of justice.” Upon that reasoning we reversed the decree and re-nq.anded the cause with a direction that the sale be confirmed.

The foregoing cases rebut the novel suggestion that a chancellor may arbitrarily set aside a judicial sale, for no announced reason, just because the term of court has not expired. If that were so, the purchaser’s vested right to confirmation would often be meaningless, since more often than not judicial sales are submitted for confirmation at the same term of court as that in which the order of sale was made.

Indeed, to accept this same-term-of-court notion would lead to an untenable result: If the chancellor refused to confirm the sale, for inadequacy of price, and the successful bidder took an appeal from that refusal, we would reverse the decree and direct that the sale be confirmed — exactly as we did in the George and Floyd, cases, supra. But if, as here, the chancellor first con firmed the sale, then he conld within the term exercise his unlimited discretion to set aside the decree of confirmation and order a resale, with no possibility of a reversal by this court. To state such a proposition is of course to answer it.

JohN A. FoglemaN, Justice dissenting. I dissent because I feel that the majority has not given due consideration to (1) the fact that the action of the trial court was taken during the term of court at which the order of confirmation of the commissioner’s sale was entered and (2) that the sale was made to the plaintiff-mortgagee in the foreclosure suit. I would agree with the result reached if either one of these facts were not involved. There can be no doubt that the trial court had the power to set aside its order confirming the commissioner’s sale during the term at which it was rendered. Wofford v. Young, 173 Ark. 802, 293 S. W. 725; Union & Planters’ Bank & Trust Co. v. Pope, 176 Ark. 1023, 5 S. W. 2d 330. The extent of this control by the court of its judgments has been stated in Stinson v. Stinson, 203 Ark. 888, 159 S. W. 2d 446, as follows:

“ * * * Courts in this state, having absolute control of their judgments and decrees during the term at which rendered might change, modify or set them aside on their own motion and without requiring the formality of a motion to do so and without any notice whatever to the parties in the case. ’ ’

It has been held that a court may set aside a judgment during the term at which it was rendered without even hearing any evidence. In Union Sawmill Co. v. Langley, 188 Ark. 316, 66 S. W. 2d 300, it was said:

“We have repeatedly held that, during the term of court at which a judgment is rendered, the court has the inherent power to set aside the judgment, and it may do so without stating any cause. Appellant refers to the statute and numerous authorities, but they all refer to setting aside judgment after the term of court in which they were rendered. We know of no case, and our attention has been called to none, that prohibits a court from controlling its orders and judgments during the term in which they were entered. It therefore becomes unnecessary to set out the evidence taken on the motion to set aside the judgment. It was proper, of course, for the court to hear evidence, if he wished to do so, in order to determine whether the judgement should be set aside.”

A trial court may also set aside a judgment during the term without stating or assigning any reason. Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797; Whaley v. Whaley, 224 Ark. 632, 275 S. W. 2d 634. In Karoley v. A. R. & T. Electronics, Inc., 235 Ark. 609, 363 S. W. 2d 120, it was said that a chancery court has the power to set aside its judgment rendered within the same term, on its own motion and without notice. It has further been held that a probate court has full power to set aside any order it had made at the same term, on its own initiative. Ozment v. Mann, 235 Ark. 901, 363 S. W. 2d 129.

In Browning v. Berg, 196 Ark. 595, 118 S. W. 2d 1017, this court rejected the arguments that the rule is subject to the limitation that a chancery court may not set aside a judgment or decree without good cause being shown therefor and that the trial court may be reversed for abuse of its discretion in so doing. There it was said:

“It may be urged that the language in the Langley Case, ‘it may do so without stating any cause,’ impliedly holds there must be cause, but that such cause need not be stated by the court. In the instant case the chancellor, at the term from which this appeal comes, explained what his purpose was. Yet, regardless of the apparent sufficiency or insufficiency of the reason, the fact remains that it was the court’s intention to set the decree aside, and this right is not to be denied. A sufficient purpose was stated: ‘to enable the defendants to present the matter at the coming* term of court. ’ ’ ’

Moss Tie Company v. Miller, 169 Ark. 657, 276 S. W. 586, is the only case I have been able to find where this court has reversed a trial court’s action setting aside a judgment during the term at which it was rendered. There, the court set aside its judgment of dismissal which had been granted on motion of the plaintiff, who then moved to have the judgment set aside. This opinion states that a court can only set aside a judgment for good cause shown. The effect of this decision as authority is eliminated by the opinion in Browning v. Berg, supra.

Application of the rule in cases involving foreclosure sales is no novelty. In Security Bank of Branson, Missouri v. Speer, 203 Ark. 562, 157 S. W. 2d 775, this court affirmed an order of a chancery court cancelling an order of sale and report of sale and divesting all rights of the mortgagor who purchased at the commissioner’s sale, and permitting mortgagees to redeem. The order was made at the same term of court and without notice to the plaintiff-purchaser. This court, in answering its own question as to the power of the court in this regard, said:

“There appears to be no rule of law better settled than that courts have the inherent power to control, or to set aside, their judgments or decrees, without assigning cause, at the same term at which they were rendered. ’ ’

No cause whatever for the setting aside of the decree was mentioned in that case.

It is well established that the setting aside of foreclosure sales may be improper when the purchaser is a stranger to the ease but proper when the purchaser is a party to the ease. Griffin v. Solomon, 237 Ark. 653, 375 S. W. 2d 232.

The majority relies principally on the case of Free v. Harris, 181 Ark. 644, 27 S. W. 2d 510. The quotations from that opinion are probably dicta. They are of little value as precedent because the court found that the preponderance of the evidence in that case showed that the price received for the lands was fair and reasonable. The appeal from the order denying confirmation was taken by the purchaser at the commissioner’s sale. He had not theretofore been a party to the action.

The quotation from Union & Planters’ Bank & Trust Co. v. Pope, 176 Ark. 1023, 5 S. W. 2d 330, if not dictum, is also of little value as precedent here. This court affirmed an order setting aside the sale made without any notice having been given to the appellant, who was the plaintiff and the purchaser at the commissioner’s sale. The sale included an interest of one of the mortgagors in lands which had been excepted from the provisions of the mortgage.

I fail to see the application of Summars v. Wilson, 205 Ark. 923, 171 S. W. 2d 944, to the facts in this case. The “proof-text” quoted therefrom in the majority opinion relates to the denial of confirmation to a third-party purchaser. The sale was made in a partition suit. The order of sale, the sale, an order disapproving it, the application of the purchaser to set aside the order of disapproval, an order setting aside the disapproval and approving the sale, and an order vacating the approval of the sale and reinstating the order of disapproval were all made during the same term of court. The third-party purchaser, one Summars, had not paid the purchase money and he did not have the purchase money on the day of- the final order reinstating the disapproval of the sale to him. In the interval between the original disapproval of the sale and the motion of the purchaser to set aside the order of disapproval, the parties to the partition suit had resolved their differences and sold the lands to one McCollum who was not a party to any of the proceedings. McCollum then went into possession of the lands and made a contract with one Wilson relating thereto. On the date the court made its order approving the sale to Summars, the attorney for McCol-lum and Wilson was not present in court. Prior to this action, the judge had announced in open court that no order would be made in any case in which this attorney was interested. This court said that the order setting aside the original order disapproving the sale to Sum-mars and approving the sale was properly made to remedy the trial judge’s inadvertence in entering the order during his momentary forgetfulness of his announcement. Summars appealed from this order and the refusal of confirmation of his purchase. The portion of the court’s opinion quoted in the majority opinion has nothing whatever to do with the setting aside of the order relating to the sale. It relates only to the confirmation of the judicial sale. I do not agree that the Speer case was construed in this case as the majority state, nor do I agree that the Speer case was overruled. Six years later it was cited as authority for a trial court’s setting aside of a judgment during the term at which rendered, without assigning any cause. Hill v. Wilson, 216 Ark. 179, 224 S. W. 2d 797.

I recognize the importance of the stability and integrity of judicial sales. If the purchaser at the foreclosure sale were a third-party bona fide purchaser for value and this litigation were between him and the mortgagor, I would view the matter differently.

I do not think that the court is justified in treating this case as one where the rights of a third party have intervened. In the first place, a third party has not asserted any rights. It is still a suit between mortgagor and mortgagee. In the second place, appellant makes no assertion in pleading, proof, or brief that the property has been sold to a bona fide purchaser for value. Thus, this cannot be a ground for reversal. In the third place, there is no evidence before the court that such is the case. Appellant successfully objected to evidence offered by appellees which might have shown that a third party had purchased the property.

On rebuttal, one of appellees, Ethel Ford Guy, was called as a witness. When she was asked by her attorney whether this property had been sold, appellant’s objection that this was improper as rebuttal was sustained. Then an offer of proof was tendered for the record. In this offer she stated that one Margie Smith had the property and paid $1,150 for it. Cross-examination on this offer revealed that this witness based her testimony on information she received from her daughter. The daughter, Gloria Guy, then testified that Margie Smith was supposed to own the place now. The court sustained an objection by appellant on the basis that the testimony was not proper rebuttal, but again permitted an offer of proof for the record. In this offer she stated that “a lady that answered the phone” advised her that the property was sold and that Margie Smith told her the amount for which it was sold was $1,150. After this offer the court properly sustained a further objection to this testimony on the basis that it was hearsay. Even this offered evidence fails to show a sale of the property by appellant Lucy Lee Robbins.

A concurring opinion calls attention to Federal Land Bank v. Floyd, 187 Ark. 616, 61 S. W. 2d 449. Emphasis is placed upon the statement in that case that a purchaser at a commissioner’s sale takes a vested interest by reason of his purchase and confirmation follows as a matter of right, except where fraud is involved or the price was so grossly inadequate as to shock the sense of justice. This language was not used with reference to the court’s setting aside the confirmation of the sale. The court there actually held that the purchaser’s right to confirmation was a vested right in the sense that an act of the legislature passed subsequently to the sale could not impair his right to confirmation and that this right must be measured by the law in force prior to the passage of the act. At any rate, this case was decided nearly ten years before the decision in Security Bank of Branson, Missouri v. Speer, supra. Certainly the rights of the Federal Land Bank in the Floyd case were no more vested than the rights of the Security Bank in the Speer case. If the Floyd case requires the treatment suggested in the concurring opinion, it was overruled by the Speer case which seems to me to be in irreconcilable conflict with that suggestion.

I would affirm the order of the chancery court.


author: Paul Ward, Justice.

text:
    Bobby JONES et al v. Edward TURNER
    5-4540
    426 S. W. 2d 401
    Opinion delivered April 15, 1968

      W. F. Denman Jr. and C. E. Tilmon, for appellants.

      Tompkins, McKenzie, McRae & Harrell, for appellee.
   Paul Ward, Justice.

In this litigation Edward Turn-©r, appellee, sought to collect damages to his truck allegedly caused by the negligence of an employee while servicing it at a filling station. The managers of the station were Bobby Jones and Larry Stafford, and Webster Henton was the employee — all appellants here.

In his complaint appellee alleged that he took his truck to the station to be serviced; that it was necessary for Henton to remove the plug from the oil pan, and that he negligently failed to properly replace the same; that a few days later, while driving the truck, the plug fell out, and allowed the oil to drain, and; that, consequently, the truck was damaged in the amount of $750. In their answer appellants denied the allegations of negligence and the extent of the damages.

The case was tried before the judge, sitting as a jury. At the close of appellee’s testimony appellants moved for a dismissal of the plaintiff’s case for the reason that any judgment would be based on speculation. The motion was denied, and then each of the appellants took the stand and testified. At the close of all the testimony the judge (as a jury) found in favor of appellee, and fixed the damages at $651.55.

On appeal appellants contend the judge erred in three respects. One, in refusing to grant the motion to dismiss; Two, in admitting expert testimony from a non-expert witness, and; Three, in failing to require ap-pellee to meet the burden of proof.

One. The trial court was correct in refusing to dismiss at the close of appellee’s testimony. When appellants’ Motion was denied, they all took the stand and testified. By doing so they waived any alleged error. In Grooms v. Neff Harness Company, 79 Ark. 401, 96 S. W. 135, this Court said:

“The defendant may, however, at the close of the plaintiff’s evidence, test its legal sufficiency by a request for a peremptory instruction in his favor. If, after a denial of the request, he introduces evidence which, together with that introduced by the plaintiff, is legally sufficient to sustain the verdict, he waives the error of the court in refusing to give the instruction.”

The Grooms case was cited with approval in Fort Smith Cotton Oil Co. v. Swift & Co., 197 Ark. 594 (p. 598), 124 S. W. 2d 1.

Two. It is here contended by appellants that the trial court erred in considering the testimony of B. F. Willingham, a witness for appellee who had approximately 39 years experience as an auto mechanic, and who was familiar with this particular truck. He was familiar with the oil pans and the plugs on similar trucks. It was his opinion that the plug came out of the oil pan in this instance because it “just wasn’t properly tightened”. Q. “Do you have an opinion that one can come out under any circumstances”? A. “I have. Let me say that if the plug was properly tightened at the time he changed oil, it would have stayed there forever.”

It is our conclusion that the court had a right to consider this testimony. In Lee v. Crittenden County, 216 Ark. 480 (p. 485) 226 S. W. 2d 79, this question arose out of what caused a temporary structure to fall. There, this Court said:

“From the above, we hold that the court did not abuse its sound discretion in permitting witness Goodwin to testify and express his opinion or expert judgment, in the circumstances, for the reason that he had shown himself to possess sufficient qualifications and information to qualify him to state an inference or give his expert judgment.”

To the same effect see Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684 and Ratton v. Busby, 230 Ark. 667, 326 S. W. 2d 889.

Three. In onr opinion the record contains substantial evidence to support the judgment of the trial court, sitting as a jury. Except for the testimony of Willing-ham referred to above, appellants do not challenge other testimony on behalf of appellee. This “other” testimony was to the effect that no on© touched the “plug” after it was inserted by Henton.

Cross-Appeal. We find no merit in appellee’s contention that the trial court erred in fixing the damages at $651.55 instead of $750 — the amount asked for in his complaint. Willingham who was appellee’s own witness, upon recall, stated to the court that the damages amounted to $651.55. This testimony was not denied and we think it constitutes substantial evidence to support the finding of the judge — sitting as a jury.

Therefore, the case is affirmed on direct and cross-appeal.

Byrd, J., concurs.


author: Lyle Brown, Justice. George Rose Smith, Justice,

text:
    Lucille Duke ROCHELLE et al v. Bettye PILES
    5-4468
    427 S. W. 2d 10
    Opinion delivered April 15, 1968
    [Rehearing denied May 21, 1968.]

      Bethell, Stocks*, Callaway & King, for appellants.

      Donald Poe, for appellee.
   Lyle Brown, Justice.

Mrs. Bettye Piles, appellee, filed this suit to establish her right to the use of a driveway between her home and the home of appellants, Mrs. Lucille Duke Rochelle and Mrs. Clyde Duke. The trial court held that Mrs. Piles had acquired an easement by right of prescription. Mrs. Rochelle, the fee owner of the disputed strip, challenges the sufficiency of the evidence. Mrs. Duke, mother of Mrs. Rochelle, was apparently made a party because of her having occupied the property since 1884.

The parties reside in Waldron on Old Danville and Waldron Road which runs east and west. Mrs. Piles and Mrs. Duke, both widows, have been neighbors since 1924. Running north and south, and near the western edge of the Rochelle property, is a driveway which provides access to both homes. The chancellor found, and we think correctly so, that prior to the turn of the century a public way existed, running from Danville Road north and between the litigants’ properties. Farmers used the lane to haul their cotton to a cotton yard located north of the present location of the two homes. The cotton yard was abandoned, apparently around 1912, and a fence was placed across the north end of the lane. The location of the driveway in dispute is identical with the south end of the cotton yard road.

Mrs. Duke’s father built a home on the Duke property around 1884 and Mrs. Duke has lived there for the past 82 years. For many years the lane was fenced on both sides and down to Danville Road. As far back as she can remember, the lane was used by her family and by the Piles family and their predecessors in title. That was true until 1966 when Mrs. Duke caused the lane, or driveway, to be enclosed within the bounds of the Duke-Rochelle property. That action precipitated this lawsuit.

Mr. and Mrs. Piles obtained title to their property in 1924. Their predecessors in title had lived on the property since at least 1907. The only access to their home has been the disputed driveway. Mrs. Piles testified their vendor represented that the driveway was included in their purchase. (A survey was introduced to sustain that contention but we think the court was correct in holding the true survey line to be just west of the driveway.) Mrs. Piles testified that she had no knowledge of any claim by Mrs. Duke or Mrs. Rochelle to the driveway until the present dispute arose. Over the years the Pileses made substantial improvements to their property. A patio, garage apartment, and a tenant house — all serviced by this driveway — were constructed. At their expense the Pileses replaced a wooden culvert, asphalted the driveway in about 1952, and in 1960 they had it seal-coated.

On the other hand, Mrs. Duke testified positively that to her personal knowledge every owner of the Piles property — including Mr. and Mrs. Piles — sought and obtained permission to use the driveway. She was corroborated by her daughter, Mrs. Rochelle, as to these occupants of whom she had recollection. They recited a number of instances in which both Mr. and Mrs. Piles tried to prevail on them to sell them the driveway property. Mrs. Piles denied knowledge of any such conversations.

In the transcript are two depositions which, if admissible, wonld support appellants’ theory of permissive use. We are convinced that the trial court never saw those depositions. Counsel for appellant thinks we should consider them and counsel for appellee made no objection. Here are the chronological facts pertinent to the depositions:

1. At the close of the testimony on June 17 it was stated that the evidence was concluded “except for two depositions to be taken by agreement.”

2. On June 22 the trial court entered his findings which contain this statement:

“On the 13th day qf June, this cause came on and was presented for hearing, and after hearing of the evidence and proof submitted on June 13, 1967, the cause was continued to June 17, 1967, for further proof and hearing, and was then continued, after June 17, 1967, until June 22, 1967, for the filing of depositions of the defendant; and on this 22nd day of June, 1967, the matter is finally submitted to the court. . .”

3. Subsequent to the entry of final judgment on June 22, two depositions were filed, one on June 23 and the other on June 28. One was taken in Texas on June 21, and the other in California on June 26.

4. The depositions were inserted by the clerk in the transcript and abstracted.

In the first place, we look to the wording of the final judgment and point up the phrase “and was then continued until June 22 for the filing of depositions.” The only logical interpretation of the phrase is that the trial court allowed five days — from June 17 to June 22 — to file the interrogatories which were being taken by agreement. Nine months had elapsed since the first hearing in the ease and Jnne 22, so ample time had been available for the taking of depositions. Counsel knew, or should have known, that the trial court had not considered the depositions. Upon ascertaining that fact a motion should have been filed to set aside the judgment and reconsider the case in light of the depositions filed subsequent to the decree. There is nothing in the record to show why that was not done and we cannot consider any reasons advanced which are extraneous to the record. That is particularly true in light of the trial court’s statement that the cause was continued until June 22 “for the filing of depositions.”

We conclude that counsel acted in utmost good faith; in fact, the discrepancy between the dates of the decree and the filing of the depositions probably was not called to their attention. However, we are concerned here with a precedent that may well come back to haunt us, that is, the evaluation by this court of testimony that was never presented to the trial court. This court has held that an agreed statement of facts merely filed with the clerk cannot be considered here. Evans v. Davidson, 207 Ark. 865, 180 S. W. 2d 127 (1944). In Morrison v. Heller, 183 F. 2d 38 (1950), appellants placed additional documents in the record which were not considered by the trial judge. On appeal, the documents were ordered stricken on the ground that their acceptance would make a complete new trial. “Litigation would otherwise be interminable,” said the court. The case of Foster v. Graves, 168 Ark. 1033, 275 S. W. 653 (1925), was by this court reversed and dismissed. On rehearing appel-lee filed an affidavit of one of appellant’s material witnesses, in which the witness repudiated his testimony. This court said the affidavit could not be considered to determine the correctness of the chancery court’s decision — “the record made in the court below must furnish the sole test.” By analogy, the two depositions were never considered by the trial court in making its decision; therefore we should not consider them in passing on the merits of the case.

We revert briefly to the testimony in the case. A host of witnesses were called. Surveyors testified about the land lines but that testimony need not be summarized. A number of witnesses testified about the long and continued use by both families, their tenants, service men, visitors, deliverymen, and friends. In fact appellants concede that “both of the parties, their friends and tenants have used the driveway without interruption for forty years until just prior to the commencement of this action.” However, appellants contend that a public easement was not shown and “it is therefore incumbent upon the plaintiff to show an adverse and hostile use by herself or predecessor in title. This we submit she has not done.” The chancellor discounted the theory of mere permissive use and held that Mrs. Piles and her predecessors in title had become vested with an easement by right of prescription. This brings us to the legal requirements for the establishment of a prescriptive easement by Mrs. Piles over the driveway.

This court has many times dealt with the acquisition of passageways over land. The general rule is that a passageway over unenclosed lands is presumed to be permissive. On the other hand, as said in Fullenwider v. Kitchens, 223 Ark. 442, 266 S. W. 2d 281 (1954: “This court, however, in dealing many times with acquisition of passageways over land, has recognized what might be deemed a variation or exception to the rule before mentioned.” One exception, which we consider here applicable, was stated in McGill v. Miller, 172 Ark. 390, 288 S. W. 932 (1926):

“It is true that the use originated as a permissive right and not upon any consideration, but the length of time which it was used without objection is sufficient to show that use was made of the alley by the owners of adjoining property as a matter of right and not as a matter of permission. In other words, the length of time and the circumstances under which the' alley was opened were sufficient to establish an adverse use so as to ripen into title by limitation. Clay v. Penzel, 79 Ark. 5, 94 S. W. 705; Scott v. Dishough, supra; Medlock v. Owens, 105 Ark. 460, 151 S. W. 995.”

In the Fullemvider case, the Kitchens farm -was located off the public road. For 35 years the occupants of the Kitchens lands traversed a passageway across the Fullenwider lands to get to the highway. That use started as a permissive one but the continuous use of the passageway for so long a period by all who had business at the Kitchens farm created a presumption that the usage was adverse. That usage was held to have ripened into a vested right.

In McGill v. Miller, supra, the parties lived on different lots in the same block in Little Rock. The only convenient means. of access to their respective homes was an alley. The alley was not dedicated; it consisted of a strip back of the properties which the owner originally kept free of obstructions. This court held that since the neighbors had used the alley for some nineteen years as their only means of ingress and egress, the original owner had no right to close the strip and prevent its use.

Some of the other cases in which the factual situations and the court’s conclusions comport with the chancellor’s ruling in this instance are Salzer v. Balkman, 234 Ark. 209, 351 S. W. 2d 422 (1961); Scaife v. Coleman, 239 Ark. 427, 389 S. W. 2d 884 (1965); and Barbee v. Carpenter, 223 Ark. 660, 267 S. W. 2d 768 (1954).

On the question of permissive use, the facts are con-cededly close. The testimony on each side was as opposite as the poles. When viewed numerically it may be meritoriously argued that it favored appellants. On the other hand, an experienced chancellor saw and heard the witnesses in an extended proceeding. In view of his advantageous position, and when considered in light of all the circumstances, we cannot say his findings were against the greater weight of the evidence.

We find no merit in appellee’s argument that the true dividing line on the east is near the center of the driveway. We also agree with the chancellor that the portion of the old lane north of that area which had been maintained and blacktopped has long been abandoned.

The decree of the chancellor is in all respects affirmed.

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

George Rose Smith, Justice,

dissenting. I would reverse the decree on the basis of the two depositions that the majority have not seen fit to consider.

Those depositions were taken by agreement. They are properly certified by the clerk of the trial court as part of the record. They have been abstracted by the appellants, along with the other testimony submitted for our consideration. The appellee has made no objection to the two depositions. Yet the majority, on their own initiative, raise a technical objection to that part of the record and go on to reach a conclusion that would seem to be unwarranted if all the proof before us were taken into account.

The situation, which was explained during the oral argument, is not apt to arise again. The chancellor, Judge Paul X. Williams, was nominated to a federal judgeship before he had reached a final decision in this case. In the course of clearing his docket he filed his findings of fact and conclusions of law on June 22 and directed counsel for the prevailing party to prepare a precedent for a final decree, which was also signed on June 22. On the next day, June 23, Judge Williams was sworn in as a United States district judge. See 266 F. Supp. p. xv, footnote 11. The parties went ahead with the taking of the depositions and eventually filed them, without objection, for inclusion in the record.

It will be seen that Judge Williams faced something of a dilemma: Either he could leave to his successor an undecided case in which Judge Williams himself had heard the oral testimony, or he could decide the case himself without having seen the depositions that were being taken. He chose the second course, no doubt in all good’ conscience and with the realization that the missing depositions might ultimately tip the weight of the evidence against his decision.

I should emphasize that for us to consider the two depositions would not set a precedent requiring us to consider in every case proof that had not been seen by the trial judge. The precedent would be controlling only in a case similar to the one at bar. Should that unlikely situation ever confront us again, I would be perfectly willing to adhere to the rule of taking into account all the proof that counsel have seen fit to include in the record. That course merely puts the merits of the case above a technical point of no importance.

Harris, 0. J., joins in this dissent.


text:
    Charlene MOORE v. J. W. WILLIS d/b/a the Friendly Butcher
    5-4541
    426 S. W. 2d 372
    Opinion delivered April 15, 1968

      Kenneth Coffelt, for appellant.

      Hardin & Richard, for appellee.
   John A. Fogleman, Justice.

Appellant asserts error on the part of the trial court in directing a verdict against her in her suit against appellee for damages for personal injuries allegedly sustained by reason of her fall inside the front entrance of appellee’s store. Evidence on behalf of appellant showed: Rain started falling a little before 2 p.m. on the day of her fall. While the rain ivas continuous, it was not raining very hard when she left a PTA meeting about 3:30 p.m. or when she entered appellee’s store about 4 p.m. She walked to her car which was parked directly in front of the building where the PTA meeting was held and from her car parked directly in front of appellee’s store into the store. She was not wearing a raincoat. The rain had been harder earlier. She stated that she slipped and fell at a point about four to six feet inside the front double-swinging doors. She realized that her feet had hit something wet and slick as she was falling. As she arose, she could feel that her clothing was wet and her left hand wet and dirty. After arising, she observed the floor looked wet and was not perfectly clean, as if people had been “tracking in all afternoon.” She had some substance on her hand and on the seat of her dress. She described the spot where she fell as pretty dirty and wet. It looked as if water and dirt had been tracked in from the outside.

No presumption of negligence arises from the mere fact that a customer sustains a fall while in a store. Miller v. F. W. Woolworth Co., 238 Ark. 709, 384 S. W. 2d 947. A storekeeper is not an insurer of his patrons against any and all hazards which may be encountered on his premises. Kroger Grocery & Baking Co. v. Dempsey, 201 Ark. 71, 143 S. W. 2d 564. He is liable to a patron rvho is injured as a result of slipping on some foreign substance or object on the floor where it is shown by the evidence, or is reasonably inferable therefrom, that the foreign matter was negligently placed or left on the floor by the storekeeper or one for whose acts he is responsible, or that the matter had remained on the floor a sufficient length of time that the storekeeper knew, or, in the exercise of ordinary care, should have known of its presence. Kroger Grocery & Baking Co. v. Dempsey, supra; Deason v. Boston Store Dry Goods Company, 226 Ark. 667, 292 S. W. 2d 261, 61 ALR 2d 170.

Obviously, it is impossible for a store owner to prevent some water and mud from being brought through an entranceway on the shoes and clothing of persons entering on a rainy day. Here, there was no evidence of the length of time the floor had been wet or dirty nor was any circumstance shown that indicated that appel-lee or his employees either knew or should have known that this condition existed. The strongest inference that can be drawn from appellee’s testimony is that during the period of the rainfall, customers entering the store had tracked water and dirt into the store and that some of this had accumulated at the spot at which she fell. The burden was on appellant to show that the interval between the time this accumulation took place and the time of her fall was substantial. Owen v. Kroger Grocery Co., 238 Ark. 413, 382 S. W. 2d 192. There is no evidence from which a jury might determine, without speculation or conjecture, that the accumulation of water and dirt tracked in by, or dropped from the clothing and umbrellas of, persons entering the store became sufficiently great or dangerous that it should have been observed by appellee or his employees in time to give opportunity for its removal prior to the entry and fall of appellant.

Appellant does not point out clearly the exact facts upon which she relies to establish negligence on the part of appellee, or from which an inference of negligence might be drawn. She urges that we reverse the trial court upon the authority of Menser v. Goodyear Tire & Rubber Co., 220 Ark. 315, 247 S. W. 2d 1019. The case at bar is clearly distinguishable. In Menser there was testimony that the substance on the floor appeared to be floor wax that had not been spread smoothly. According to the testimony, the substance was in thick and thin strips over a spot two to three feet in diameter. This court held that a jury question was presented because the customer fell in the middle of the day, and, if the spot was the result of waxing the floors, sufficient time had elapsed for properly finishing the job. Furthermore, it was said that the character of the place of business and the extent and nature of the spot were such that it would not be reasonable to assume that some customer had recently inadvertently dropped the wax-like substance on the floor. Appellant contends here that the moisture and dirt were tracked in by customers. As previously pointed out, there is no indication of the time any accumulation should have come to the attention of appellee.

Tn a case where a passenger claimed injury from slipping upon pieces of ice and snow in the vestibule of a street car from which she was debarking, we held that it must have been shown that the carrier permitted the accumulation of ice and snow or that it had been in the vestibule of the car such a length of time as to afford an opportunity for removal before negligence could be inferred. Turner v. Hot Springs Street Ry. Co., 189 Ark. 894, 75 S. W. 2d 675.

The evidence was not sufficient to justify any inference of negligence on the part of appellee.

The judgment is affirmed.