text:
    ARKANSAS STATE HIGHWAY COMMISSION v. ARKANSAS REAL ESTATE COMPANY, INC. et al
    5-4329
    421 S. W. 2d 883
    Opinion delivered December 18, 1967

      John R. Thompson and Thomas B. Kays, for appellant.

      Moses, McClellan, Arnold, Owen & McDermott and Howell, Price & Worsham, for appellees.
   George Rose Smith, Justice.

The appellant brought this suit to condemn a right-of-way in fee simple for a controlled access highway across the. appellees’ property — a 77-acre tract near East Roosevelt Road in Little Rock. The jury determined just compensation to be $75,-000. For reversal the appellant contends that the court erred in refusing two requested instructions and in excluding evidence of the selling price of comparable property in the vicinity.

The plaintiff’s Instruction No. 4 and the substance of No. 5 should have been given. The landowners offered much testimony to show damages resulting from the new highway’s having cut off their access to a railroad and to a sewer line. Instruction No. 4 would have told the jury, substantially in the language of the statute, that political subdivisions and public utilities might use the highway commission’s land for certain enumerated purposes (including the laying of sewers-and railways) by agreement with the commission, provided that such uses did not interfere with the public use of the property for highway purposes. Ark. Stat. Ann. § 76-544 (Bepl. 1957). Counsel for the highway commission were certainly entitled to argue to the jury that the landowner’s access to the sewer line and the railroad was not necessarily being irretrievably destroyed.

In defending the court’s refusal to give the instruction the appellees merely say that any possible application of the statute was precluded by the highway commission’s complaint, which alleged that “this highway should be a controlled access highway facility . . . and therefore, the owners or occupants of abutting and adjoining lands shall have no right of existing, future, or potential common law or statutory rights of access or ingress and egress to, from, or across this facility to or from abutting and adjoining lands.” We do not so construe the complaint. All that the quoted language refers to is the landowner’s ordinary right to enter and leave a public highway that abuts his property. That right does not exist with respect to a controlled access facility. Ark. Stat. Ann. § 76-2202; Arkansas State Highway Commn. v. Bingham, 231 Ark. 934, 333 S. W. 2d 728 (1960). It does not follow, however, that the landowner is also denied the benefit of Section 76-544, supra, which, like the controlled access statute, was- passed by the 1953 legislature. There is no conflict between the two acts.

' Requested Instruction No. 5 defined a controlled access highway, in the language of the statute, and went on to say that the highway had been constructed in accordance with certain plans on file with the highway department and that if the commission should in the future change the highway in such a way as to damage the landowners, then the landowners would have a new cause of action. See Arkansas State Highway Commn. v. Wilmans, 239 Ark. 281, 388 S. W. 2d 916 (1965). We may assume, without deciding, that the appellees are right in contending that the instruction was not perfectly drawn, in that the record did not justify the court in telling the jury unequivocally that the facility has been constructed in accordance with the plans. Nevertheless, in view of the necessity for a new trial, we point out that upon proper proof the commission would be entitled to a correctly worded charge on the point.

Counsel for the commission sought to prove the price for which comparable property in the neighborhood had recently been sold. The court excluded that evidence, stating that an expert witness might consider such sales in forming his opinion about the value of the property being condemned, but, said the court, such evidence had no probative value with respect to the property in dispute and therefore should not be heard by the jury. Although we might on. this appeal sustain the court’s ruling on the narrow ground that counsel for the commission failed to make an offer of proof that the other property was in fact comparable to the ap-pellees’ land, we must consider the point on its merits, simply because it will doubtless recur upon a new trial. The court’s position was wrong. Upon a proper showing of comparability such evidence is admissible and should be heard by the jury. Arkansas State Highway Commn. v. Witkowski, 236 Ark. 66, 364 S. W. 2d 309 (1963); City of Little Rock v. Sawyer, 228 Ark. 516, 309 S. W. 2d 30 (1958). Indeed, proof of comparable sales 4s usually considered to be especially trustworthy, for it goes beyond the sphere of mere opinion and shows ihe values arrived at by persons having a direct pecuniary interest in the matter.

The only other controverted question that may arise upon a new trial is the appellant’s contention that the court erred in permitting the appellees to treat the land as being a single ownership, when in fact it was owned by two different corporations. Owing to the appellant’s failure to reproduce the pertinent exhibits, as required by Buie 9 (d), we are unable to say whether the court erred. We may appropriately add, however, that if the landowners are able to demonstrate their right to close certain streets that seem to have been platted but never opened, they may be in a position to insist that the tract be treated as a single ownership.

Reversed.


source: Caselaw Access Project

author: G-eorge Bose Smith, Justice.

license: Public Domain

text:
    ARKANSAS STATE BOARD OF PHARMACY v. Toy C. HALL et al
    5-4366
    421 S. W. 2d 888
    Opinion delivered December 18, 1967

      Warren & Bullion, for appellant.

      Bussell Elrod, for appellees.

      Dickey & Dickey and Spitzberg, Bonner, Mitchell & Hays, amicus curiae.
   G-eorge Bose Smith, Justice.

This case began as an application by the appellees, two qualified registered pharmacists, for a permit to establish and conduct a new pharmacy at 304 South Maxwell Street in the City of Siloam Springs. The State Board of Pharmacy defied the application on the ground that it did not meet the requirements of the Board’s Regulation 36, adopted in 1966. On appeal the circuit court reversed the Board’s decision, holding that Paragraph 2 of the regulation— the provision pertinent to this litigation — was invalid as 'being beyond the authority granted to the Board by the legislature. The correctness of that ruling is the controlling question here.

We quote Paragraph 2 of the regulation:
2. In determining whether to issue a registered pharmacy permit for a new pharmacy or for a new location of an existing pharmacy, the Board will determine whether public need and convenience will be served, by the granting of the permit at the particular location sought. The Board will not grant a permit where the granting of the permit will not serve the public need or convenience.

We needfnot narrate at length the facts developed at.the hearing before the Board, at which the appellees were no-t''represented by counsel. Their application for a permit was opposed by rival pharmacists in Si-loam Springs, whose testimony tended to show that the operation of a pharmacy at the particular location selected by the appellees would eventually create a monopoly.

The threat of a monopoly stems from these facts: Five of the six physicians practicing in Silo am Springs are building a medical center which they will occupy together. They plan to construct, next to- the. medical center, a fully-equipped pharmacy. The appellees hid for the privilege of running the pharmacy. They will pay a monthly rental of $550 for the small pharmacy building (as compared to the rental of $75 a month formerly paid by the appellee Toy for a drugstore building in the same city).

One of the doctors testified that his group will have no interest in the pharmacy, will make no effort to send patients to the pharmacy, and will have no agreement with the pharmacists for rebates or a share in the profits. Despite the doctors’ protestations counsel for the Board argue, and the Board doubtless believed, that the doctors’ self-interest, stemming from their ownership of the building and their power to fix the rent, would ultimately result in their channeling so much business to the clinic-connected pharmacy as to give it a decided competitive advantage over the other three pharmacies in the city.

Turning to the pivotal question of law — the validity of Paragraph 2 of Regulation 36 — we emphasize at the outset that our sole inquiry is whether the legislature has conferred upon the Board of Pharmacy the power to determine, as a condition to the issuance of a permit, whether the public need and convenience will be served by the operation of a pharmacy at the particular location selected by the applicant. We are not concerned either with the wisdom of the statutes governing the Board or with any questions of medical ethics that might be raised with respect to the proposed medical center and pharmacy.

Our study of the pertinent statutes firmly convinces us that the legislature has not undertaken to delegate to the Board of Pharmacy the power to exercise the authority embodied in the regulation in question. The various acts pertaining to the Board are compiled as Title 72, Chapter 10, of the Arkansas Statutes Annotated (Repl. 1957).

The Board was created by Act 50 of 1891. That statute authorized the Board to register qualified pharmacists, with or without examination as directed by the act. It was made unlawful for any person not a registered pharmacist to conduct a drugstore, pharmacy, or apothecary shop for the compounding- or dispensing of medicines.

Act 72 of 1929 embodied a more comprehensive enumeration of the Board’s powers and duties. For the first time the Board was directed to register not only pharmacists but also pharmacies. Section 8 of the act provided that no person should conduct a drug-dispensing pharmacy unless it had been registered with the Board and a permit therefor obtained. Ark. Stat. Ann. § 72-1017. There was, however, no suggestion whatever that the Board was given any discretion in the matter' of issuing pharmacy permits to qualified pharmacists. To the contrary, Section 5 of Act 72 (§ 72-1013) declared, “A registered pharmacist shall have a right to conduct a pharmacy.” Moreover, Section 9 of the act (§ 72-1018), governing the issuance of pharmacy permits, stated that the Board “shall” issue such permits to persons the Board deems to be qualified to conduct a pharmacy. There is no hint of discretionary authority, other than in the matter of the applicant’s qualifications.

Finally, we come to Act 57 of 1955, upon which the Board relies for its delegated authority to approve or disapprove pharmacy applications on the basis of public need and convenience. In point of fact, Act 57 contains not even a line bearing directly upon the issuance of pharmacy permits. The act had as its principal purpose the creation and regulation of a new class of pharmacists, to be known as Practical Druggists. Almost every section of the act bears npon the licensing and authority of such Practical Druggists. In fact, Section 9 (§ 72-1011.5) recites: “This act is an emergency measure and any person desiring to obtain the benefits hereof and become a licensed “Practical Druggist” must file his or her application with the . . . Board of Pharmacy within ninety days after the effective date of this act ... or be forever barred.”

The Board, in insisting that it has the authority to condition the issuance of pharmacy permits upon a showing of public convenience and necessity similar to that required in the licensing of public utilities, relies upon Section 19 (§ 72-1004.1) of the foregoing Practical Druggist act, which reads as follows:

The Arkansas State Board of Pharmacy shall have authority to make reasonable rules and regulations, not inconsistent with law, to carry out the purposes and intentions of this act and the pharmacy laws of this state which said Board deems necessary to preserve and protect the public health. (Our italics.)

There are two clear-cut answers to the Board’s insistence that the language which we have italicized was intended to confer upon the Board a broad, nebulous, and unfettered authority to promulgate any regulations which it deems necessary to preserve and protect the public health.

First, the asserted legislative delegation of rule making authority must be read in context. It is not reasonable to believe that the lawmakers meant to bury deep in a statute governing Practical Druggists a single clause that would invest the Board with far greater powers than those granted by all the other pertinent statutes put together. Secondly, even if the legislature had decided upon a delegation of such unlimited and un-> bridled power, the language now in question would violate the familiar constitutional principle that in delegating legislative authority the General Assembly must spell out appropriate standards for the guidance of the administrative body by which the power is to be exercised. Walden v. Hart, 243 Ark. 650, 420 S. W. 2d 868 (1967).

It is not our province to say whether the legislature should invest the Board with the discretion that it sought to draw to itself by the adoption of the regulatory rule now in controversy. Our unavoidable conclusion that the legislature has not done so is decisive of the present case.

Affirmed.


author: Paul Ward, Justice.

text:
    Harold WILLIAMS et al v. Cecil KUEHNERT et al
    5-4412
    421 S. W. 2d 896
    Opinion delivered December 18, 1967

      Martin, Dodds & Kidd, for appellants.

      H. B. Stubblefield, Joseph G. Kemp and Perry V. Whitmore, for appellees.
   Paul Ward, Justice.

This litigation involves Pottle Rock’s zoning law as it relates to a nonconforming-usage.

H. W. Roper (appellee) owns a parcel of land at 8704 Oman Road on which he has for many years operated a kindergarten. This property, together with other nearby residential property, was annexed to the City and zoned “A” — one family residence. Roper’s property was accepted as a nonconforming usage.

Later, on September 19, 1966, Roper filed an application with the Board of Adjustment asking for permission to make certain additions to the building in order to better accommodate the children. At the same time four property owners appeared in person, with a petition signed by fourteen property owners, and entered a protest. On October 17, 1966 a hearing was had, and the Board of Adjustment granted Roper’s application on condition that certain specified driveways, parking areas, curbs, gutters, and sidewalks would be provided.

On November 14, 1966 the protestants (appellants) filed a complaint in circuit court against the Board setting out the facts previously stated and alleging, among other things, that to allow the proposed expansion would depreciate the value of their property because of increased traffic, and that it would prevent the free use of their driveways. The prayer was that the action of the Board “be declared illegal”. An answer was filed by the Board, and Roper was allowed to intervene.

A jury was waived and the trial judge, after the introduction of testimony and exhibits, dismissed appellants ’ complaint.

On appeal, appellants rely on two points for a reversal: One, the Board had no “authority to permit the enlargement of the building”, and; Two, no hardship on Roper was shown to justify the action of the Board.

One. We are unable to agree with appellants’ contention that the Board had no “authority” to permit Roper to enlarge the kindergarten building.

Ark. Stat. Ann. § 19-2801 (Repl. 1956) [Building and Zoning Regulations,] in part, reads:

“They (municipal corporations) shall have the power to regulate the erection, construction, reconstruction, alteration and repair of buildings . . . .”

Ark. 'Stat. Ann. § 19-2829 b (Supp. 1965), in pertinent parts, reads:

“The board of zoning adjustment shall have the following functions: Hear requests for variances from the literal provisions of the zoning ordinance in instances where strict enforcement of the zoning ordinance would cause undue hardship due to circumstances unique to the individual property under consideration. . . . The board of zoning adjustment may impose conditions in the granting of a variance to insure compliance and to protect adjacent property. ’ ’

Section 43-22 Board of Adjustment [City Zoning Ordinance] contains the following provisions:

“The board shall have the following powers and it shall be its duty .... Permit the location of the following uses in a district from which they are prohibited by this chapter. . . institutions of an edu cational, religious or philanthropic nature. ...” (Emphasis ours.)

We think it is clear from the above that the Board of Adjustment is vested with the power and “authority”, and perhaps the duty under facts developed, to grant Roper’s application.

To sustain their position, appellants rely on the decision in City of West Helena v. Bockman, 221 Ark. 677, 256 S.W. 2d 40, where appellee (a doctor) was not allowed to expand his clinic located in a residential zoned district. That case, however, is not controlling here because the proposed expansion extended to within eight feet of the property line in violation of a city zoning ordinance. No such issue is involved in this case.

Two. As we understand appellants’ arguments here, the contentions are that the judgment of the trial court is not supported by substantial evidence.

It is contended there is no evidence to show a hardship would have been imposed on Roper if the expansion had been denied. We cannot agree. In the first place no such showing is required under section. 43.-22 quoted previously. Moreover the testimony does show that the addition to the building was required by the Health Department in order for the kindergarten school to continue in operation.

It may be conceded, as was contended by appellants, that the operation of the kindergarten caused a traffic problem in that vicinity, that sometimes the cars blocked the entrances from the street to nearby residences, and that this problem would be aggravated if the enrollment of the school should be increased. However, as previously stated, the Board and the trial court granted Roper’s application on certain conditions. One condition was that additional parking space be provided. The undisputed testimony is that ample parking space has been, or will be, provided and that said conditions will hereafter be more favorable to appellants than they were previously.

In view of what we have pointed out above, we hold the judgment of the trial court is supported by substantial evidence and therefore must be affirmed.


text:
    Linn GARNER v. HIGHLAND SCHOOL DISTRICT NO. 42
    5-4420
    421 S. W. 2d 895
    Opinion delivered December 18, 1967

      Shelby G. Ferguson, for appellant.

      Gus Causbie and Harry L. Ponder, for appellee.

      Eugene R. Warren, amicus curiae.
   Paul Ward, Justice.

This is an action by a public school teacher against a School District for breach of contract. The pertinent facts are stipulated.

On August 10, 1964, Linn Garner (appellant here) entered into a written contract with Highland School District No. 42 of Sharp County (appellee here) to teach physical education. The contract provides, among other things, that appellant was employed . . for a term of 12 months beginning July 1st, 1964 ...” for a salary of $425 per month. On May 28, 1965 appellee wrote appellant that “Due to the expanded duty requirements in the athletic department ... it has become necessary to terminate your contract for the 1964-1965 school year. ’ ’ The letter was received by appellant on June 7, 1965.

A hearing was had before the trial judge sitting, by agreement, as a jury. The judge found that: “Under the terms of the contract ... the notice of termination given defendant (appellee) to the plaintiff (appellant) was adequate, timely and proper”.

It is our conclusion that the holding of the trial court is correct and must be affirmed. Language found in Ark. Stat. Ann. § 80-1304 (Supp. 1967) is plain and controlling. The pertinent part of said section reads:

“Every contract of employment hereafter made between a teacher and a board of school directors shall be renewed in writing on the same terms and for the same salary, unless increased or decreased by law, for the school year next succeeding the date of termination fixed therein, which renewal may be made by indorsement on the existing contract instrument; unless during the period of such contract or within ten (10) days after the termination of said school term, the teacher shall be notified by the school board in writing delivered in person or mailed to him or her at last and usual known address by registered mail that such contract will not be renewed for such succeeding year . . . .” (Emphasis supplied.)

It is undisputed that appellant was given proper notice “during the period” of his contract of employment as a teacher.

In view of the conclusion above reached it becomes unnecessary to discuss other matters raised on appeal.

Affirmed.


author: Lyle BrowN, Justice.

text:
    Larry F. WALKER v. KILLOREN ELECTRIC CO.
    5-4396
    421 S. W. 2d 893
    Opinion delivered December 18, 1967

      Faubus & Henson, for appellant.

      Pearson & Pearson, for appellee.
   Lyle BrowN, Justice.

Appellant (plaintiff below) brought this action to vacate a judgment rendered in his favor in 1950, at which time he was a minor. The demurrer and motion to dismiss the new action, filed by Killoren Electric Company, a corporation, was sustained.

Larry F. Walker, allegedly four years of age at the time, was injured from the explosion of a dynamite cap in 1948. Appellee, Killoren Electric, was at the time charged with having left the cap on the premises of Larry’s grandfather, where some construction work was being performed. Suit was filed in Madison Circuit Court and judgment entered in 1950. Larry’s mother brought that suit as next friend and was represented by two firms of attorneys. Judgment was entered for Larry for $2,500 and that amount was paid into the registry of the court.

After attaining majority, Larry Walker brought this suit styled “Complaint at Law to Vacate Judgment. ’ ’ He contends that a settlement was negotiated in 1950 and was the sole basis for the court’s judgment; that the judgment was grossly inadequate; that no medical evidence was submitted to the court; and that Larry is entitled to relief under., the provisions of Ark. Stat. Ann. §§ 29-117 and 29-5.06 (Repl. 1962).

Killoren’s demurrer alleged that the facts recited in the complaint did not state a cause of action. Additionally, a motion to dismiss was grounded on the assertion that no relief was available under §§ 29-117 and 29-506. The trial court sustained the demurrer and the motion to dismiss.

Walker’s appeal raises three points which we will discuss as they are listed.

Point I. The trial court erred in holding that %% 29-117 cmd 29-506 afford no relief to Walker. Section 29-117 provides it is not necessary to reserve in a judgment the right of an infant to contest that judgment within one year after attaining majority. Section 29-506 sets forth eight grounds for setting aside a judgment after the expiration of the'term. From an examination of that statute it is apparent that appellant is relying on the last one. “Eighth” preserves the right of an infant, after attaining majority, to set aside an erroneous judgment as prescribed in % 29-117.

The privilege reserved to infants by % 29-117 is restricted to infant defendants. Woodall v. Moore, 55 Ark. 22, 17 S. W. 268 (1891). Further, this statement from Woodall was reiterated in Selig v. Barnett, 233 Ark. 900, 350 S. W. 2d 176 (1961):

“When infants by their guardian or next friend go into Court to assert their rights, they proceed under the eye of the court, and are supposed to enjoy its care and protection, and conclusions therein reached are as binding upon them as upon persons sui juris/’

Point II. The trial court erred in holding that appellant’s motion to vacate did not state a cause of action. It was the court’s view that appellant did not state a cause of action under. § 29-117. It is evident, from what we have said under Point I,, that the ruling was correct.

Point III. The 1950 judgment for the minor plaintiff was in reality a settlement; there was no judicial investigation of the merits of the claim; in those circumstances relief may be had against the judgment. When a minor’s interest is involved and it affirmatively appears from the judgment that tHe court merely embodied a settlement in' its judgment, that judgment is void on its face. Kuykendall v. Zachary, 179 Ark. 478, 16 S. W. 2d 590 (1929). In Kuykendall the judgment recited that the parties appeared in person and by counsel and announced a settlement. On the strength of that announcement the court entered an “agreed judgment” in the amount of the settlement figure. “It affirmatively appears,” says the opinion, “. . . . that the court found only that a settlement of the minor’s claim had been made, and a decree was rendered in accordance with this settlement.”

Kuykendall does not condemn settlement of a minor’s claim; to the contrary, it is said “compromise might in many cases he entirely proper and highly advantageous to the minor.” To he raised to the sanctity of a binding judgment it should be determined by the court ‘ ‘ as being fair to the minor, and' the approval would, of course, imply such investigation on the part of the court as made the fact appear that the minor’s interest had not been sacrificed.”

A judgment was similarly attacked in Swindle v. Rogers, 188 Ark. 503, 66 S. W. 2d 630 (1934). Judgment was entered on the same day suit was filed for the minor. Jury was waived, the court considered the complaint, the answer, and heard testimony. Being “well and sufficiently advised” the court entered judgment for the minor. That judgment was here sustained. Significantly, the record showed that testimony was heard, “thus implying that the minor’s rights had been protected.”

The 1950 judgment here challenged shows on its face the appearance of the parties and counsel, ready for trial. The cause was submitted to the court “upon the complaint of the Plaintiffs, the answer of the Defendant and the oral and- documentary evidence adduced . . . .” Such words as “settlement” and “compromise” appear at no point in the record.

Affirmed.


text:
    Carl WIDMER v. PRICE OIL CO., INC.
    5-4424
    421 S. W. 2d 885
    Opinion delivered December 18, 1967

      Carl Widmer, pro se.

      Warner, Warner, Ragon & Smith, for appellee.
   Lyle BrowN, Justice.

Carl Widmer brings this appeal from a judgment on a credit card account. The case originated in the Fort Smith Municipal Court. Widmer appealed from judgment there and the circuit court tried the case on stipulated facts. On appeal here Widmer contends (1) that service had upon him was void on its face, and (2) that there was accord and satisfaction.

1. Widmer’s motion to quash service. His right to raise that point here has been waived. Widmer waived a jury, stipulated the facts based on the disagreement over accord and satisfaction, and asked the court to “render a decision without trial or further hearings.” At no stage of the proceedings did he ask the circuit court to rule on his contention that the service of summons was void. He failed to insist on a ruling, he filed answer, and consented to a trial on the merits. By those actions he waived the motion. Street v. Shull, 187 Ark. 180, 58 S. W. 2d 932 (1933); Hill v. McClintock, 175 Ark. 1059, 1 S. W. 2d 564 (1928). Also see 60 CJS Motions, § 42. In the stipulation Widmer “reserves all of his rights and privileges and reasserts that he has never been legally summoned herein.” Evidently the quoted insertion was thought to vest in Widmer the right to raise the question on appeal here. Irrespective of that reservation, he did not ask the trial court to rule on the point before submitting the case on the merits.

2. Appellant’s plea of accord and satisfaction. Price Oil Company alleged Widmer owed a stated amount on account and sued him on November 23, 1966. One week after service of summons, Widmer sent Price a check for approximately one-fifth of the alleged acr count. The notation, “full payment of all accounts to date,” was written on. the face of the check. No controversy between the parties preceded the mailing of the check. Price did not cash the check, nor was it returned to Widmer. However, Price’s course of action conclusively shows that it had no intention of accepting the check as payment. The parties have regularly met in court on the issue of the debt since December 12; that was only 12 days after Widmer mailed the check.

In accord and satisfaction there must be a disputed amount involved and a consent to accept less than the claimed amount in settlement of the whole. Jewell v. General Air Conditioning Corp., 226 Ark. 304, 289 S. W. 2d 881 (1956); McMillan, Adm’r. v. Palmer, 198 Ark. 805, 131 S. W. 2d 943 (1939); Reynolds v. Reynolds, 55 Ark. 369, 18 S. W. 377 (1892).

In Nordlinger v. Libow, 240 N.Y.S. 193 (1930), the creditor actually cashed a check marked “full settlement of any and all claims.” The check was for an amount smaller than a debt about which there had been no dispute. There the court held the notation to be a mere nullity. “It is elementary,” said the court, “that to establish an accord and satisfaction by the payment of a lesser amount than that claimed to be due there must be a bona fide dispute as to the amount. ’ ’

Did Widmer’s check, amount to his disputing the correctness of the claim, or did he think Price would not go to the expensevof pressing in court a claim for the difference? The fact is that Widmer’s answer does not deny he actually owed the full amount demanded; he merely pleaded accord and satisfaction as a conclusion.

The trial court based its judgment against Widmer on a finding that the creation of the indebtedness claimed by Price was not denied. It was found that the defense was based solely on the formality of sending a check to Price and marking “full payment” thereon. We are unable to say the trial court’s finding was erroneous.

Affirmed.


author: JohN A. FoglemáN, Justice.

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. Selma PULLEN et al
    5-4398
    421 S. W. 2d 890
    Opinion delivered December 18, 1967

      John R. Thompson, Thomas B. Keys and Billy Pease, for appellant.

      Williams & Gardner, for appellees.
   JohN A. FoglemáN, Justice.

This appeal is from a judgment awarding compensation in an eminent domain case and is based on two alleged errors of the trial court. The first contention is that the court erred in failing to enter a consent judement The second is that the trial court erred in excluding testimony of an expert witness offered by appellant as to value of the lands remaining.

Appellant states that it had an agreement with five of the seven alleged owners-defendants with reference to the amounts to be recovered by each of them as just compensation for the taking of the right-of-way. It further states that the agreement was incorporated into a precedent for a consent judgment. While the record discloses the objection of appellant’s attorney to the court’s failure to enter a consent judgment before the commencement of the trial, we find nothing whatever in the record to disclose the content of the proposed judgment, the terms of the agreement, or the parties thereto. There is not even anything to show that there was an agreement between these landowners and appellant. We have only the statement of appellant’s attorney that five of the defendants had agreed to accept the amount deposited by appellant as estimated just compensation. This statement was made in the course of his objections to the trial judge. The colloquy between appellant’s attorney and the trial judge discloses that a jury trial in this matter was about to commence. The judge indicated that the judgment would be signed after the jury retired. There is nothing to indicate that such a judgment was presented to the trial judge at the time suggested by him. Under these circumstances, we are unable to say that there was any error committed by the trial court.

A. R. Jordan, a witness offered by appellant, stated that he had been familiar with the Pullen lands for about six years before the taking. He possessed adequate professional qualifications as an expert on real estate values in the vicinity of these lands. He stated that he had passed the property two or three times per day since he became familiar with it. Seven months after the taking he inspected the lands for the first time. His only direct familiarity with the improvements on the property was gained from his observation in passing by the property on the highway and a county road. Between the time of the taking and his inspection of the property, certain improvements had been removed from the property. The witness stated that by investigation he obtained information as to the improvements that had been on the property. "While a statement was made by appellant’s counsel indicating what the witness would state as to the land values before and after the taking, there is no indication whatever as to the source of his information or as to what information his'investigation revealed, except for a statement that he had the advantage of certain maps and plats which were not identified. It should be noted that objection was not addressed to a hypothetical question based on appropriate factual as: sumptions nor did appellant’s attorney offer to ask suet a question. "While it is not-always necessary for an expert on real estate values to have been personally familiar with land and its improvements before the taking of a part thereof by eminent domain, he must establish adequate familiarity with the property before he can express his opinion. Malvern & Ouachita River RR Co. v. Smith, 181 Ark. 626, 26 S. W. 2d 1107; Bridgmam, v. Baxter County, 202 Ark. 15, 148 S. W. 2d 673; Arkansas State Highway Commission v. Johns, 236 Ark. 585, 367 S. W. 2d 436. An expert witness, as well ás a non-expert, may not express an opinion unless it is shown that he has information upon which it may reasonably be based. Puryear v. Puryear, 192 Ark. 692, 94 S. W. 2d 695. The trial judge has the responsibility for’ determining, in his discretion, whether such a witness possesses sufficient familiarity with the affected property to make his opinion of values thereof proper as an aid to the jury in awarding just compensation. Puryear v. Puryear, supra’, Bridgmam, v. Baxter County, supra; Ball v. Independence County, 214 Ark. 694, 217 S. W. 2d 913. "We will not reverse the action of the trial judge in the exercise of his discretion in the matter unless there has been an abuse thereof, even though we might have decided differently if the case were presented to us in the first instance. Arkansas Power & Light Co. v. Morris, 221 Ark. 576, 254 S. W. 2d 684; Arkansas State Highway Commission v. Kennedy, 233 Ark. 844, 349 S. W. 2d 132. We are unable to say that there has been an abuse of the trial judge’s discretion in this case.

Appellant urges, however, that the trial judge’s ruling was not based on the witness’s lack of familiarity with the improvements but on the remoteness of the witness’s inspection. Appellees objected to the witness stating his value opinion after appellant had examined him as to his qualifications and familiarity with the property and the manner of arriving at his appraisal values. The trial judge then called a conference in chambers. After a discussion both on and off the record, the trial judge stated that a question had been raised and objection made that, based upon Jordan’s entire testimony, he was not competent to give an appraisal as to the value of the property at the time of the taking. The judge then stated that he sustained the objection. It seems dear that the court’s ruling was based on the question of sufficiency of the information of the witness, as his professional qualifications seem to be beyond question.

While appellees renewed their previous motion to dismiss this appeal, we find it unnecessary to reconsider that matter in view of the disposition we make of this case.

The judgment is affirmed.

Byrd, J., dissents.


author: J. Fred Jones, Justice. Paul Ward, Justice,

text:
    Julian HOGAN et al v. Lynn DAVIS
    5-4469
    422 S. W. 2d 412
    Opinion delivered December 18, 1967

      Joe Purcell, Atty. Gen; Henry Ginger and Don Langston, Asst. Atty. Gens., for appellants.

      Robert Shults, for appellee.
   J. Fred Jones, Justice.

This appeal questions the trial court’s interpretation of Ark. Stat. Ann. § 42-404 (Repl. 1964) as it relates to the residential qualifications of Lynn Davis to serve as Director of the Department of State Police. The statute provides:

“The Director shall be chosen on account of his qualifications and fitness for the office, shall be of good moral character and a resident of the State of Arkansas for at least ten years next preceding his appointment(Emphasis supplied.)

On June 30, 1967, in response to a request from the Governor, the Attorney General issued an opinion holding that Mr. Davis did not meet the residential qualifications. The Governor nevertheless appointed Davis as Director on August 1. The Director of Administration, in view of the Attorney General’s opinion, refused to approve the payment of Davis’ salary.

Davis brought this action for a declaratory judgment finding Mm to be qualified to hold the office. By intervention the Attorney General sought Davis’ ouster by quo warranto proceedings. The trial court held that Davis is legally qualified under the statute. After a careful study of the matter we are forced to the conclusion that the trial court erred in its decision.

The legislature declared in words too plain to be misunderstood that the Director of State Police must have been a resident of the State of Arkansas for at least ten years next preceding his appointment. There can be no doubt about the fact that the lawmakers, in requiring such an extended period of residence within the s'tate, meant to make certain that the person chosen to be Director would be familiar by first-hand observation with the varied and complex problems of law enforcement that confront the State Police Department. No other convincing reason for the ten-year requirement has been brought to our attention.

The question is: Does Davis meet the residential test that the legislature — the final authority in the matter — has seen fit to impose 1 Upon this question the undisputed facts speak so strongly for themselves that hardly any comment by the conrt is necessary.

Lynn Davis was horn in Arkansas in 1933 and lived here nntil March of 1960. At that time his employer in Texarkana, Arkansas, who was developing a residential subdivision a few miles across the state line in Wake Village, Texas, suggested that to promote the sale of lots Davis should buy a house in the subdivision and move into it with his family. Davis did so. From that time on, over a period of more than seven years, Davis did not make his home in Arkansas until he returned to this state to accept the appointment to the directorship of the State Police in 1967.

In Wake Village, Texas, Davis terminated his 'employment with his original employer' after about a year, but he took another job and continued to live in Wake Village until he sought and obtained a position with the F.B.I. in September of 1961. As a federal agent Davis lived with his family for periods of less than a year in Washington, D. C., in three cities in Illinois, and in Denver. In February, 1964, Davis moved to Rock Springs, Wyoming, where he stayed for about two and a half years. In Wyoming — the first state in which he had resided for more than a year since leaving Texas —Davis expressed his intentions about his residence so emphatically as to leave the matter not seriously open to doubt. On May 13, 1966, Davis qualified to vote in Wyoming by appearing before the registrar and making a written statement under oath that he had been a resident of the state for more than a year and was a qualified elector in the state. He did not actually vote in Wyoming, as he admits he intended to do; for he was transferred to an F.B.I. position in California and remained there until he came back to Arkansas to accept the appointment to the office of Director of the State Police Department.

To sum up, according to the undisputed proof Davis and his family lived outside Arkansas continuously for more than seven years immediately preceding the appointment now in dispute. During all that time Davis’ only real ties with Arkansas lay in the fact that his parents lived here, that he owned a house in Texarkana all along (though not always the same house), and that he intended to return to Arkansas when he could find a .iob here that would enable him to support his family. During his seven-year absence from the state Davis did not attempt to vote in Arkansas, did not pay poll tax here, did not pay the state income tax that is levied on residents of the state, and, of course, did not actually make his home in Arkansas.

In a case as clear-cut as this one we need not enter upon an extended discussion of the technical distinctions between “residence,” which ordinarily means physical presence within the jurisdiction (with, of course, customary absences upon business, vacations, and the like), and “domicile,” which differs from mere “residence” by including the subjective intent to maintain one’s permanent home in the jurisdiction. The distinction between residence and domicile has been made, for example, in such cases as Krone v. Cooper, 43 Ark. 547 (1884); Jarrell v. Leeper, 178 Ark. 6, 9 S. W. 2d 778; Missouri Pac. R.R. v. Lawrence, 215 Ark. 718, 223 S. W. 2d 823; Norton v. Purkins, Judge, 203 Ark. 586, 157 S. W. 2d 765; Harris v. Textor, 235 Ark. 497, 361 S. W. 2d 75; Husband v. Crockett, 195 Ark. 1031, 115 S. W. 2d 882; Smith v. Union County, 178 Ark. 540, 11 S. W. 2d 455; Shelton v. Shelton, 180 Ark. 959, 23 S. W. 2d 629; and other cases far too numerous to mention.

Even if we agreed with the trial court that our statute required only “domicile,” still appellee could not prevail. Disregarding his move- to Texas which does not constitute a necessary private business absence under Article 19 § 7, his family lived with him for two and one-half years in Wyoming where he declared his intentions as to residence under oath. In order to be a qualified elector in Wyoming, one must have been a resident of the state for at least one year and of the connty in which he proposes to vote for at least sixty days. Article 6, § 2, Constitution of Wyoming; Wyoming Statute, § 22-118.3j. Residence under the Wyoming election statute is defined as that place in which a person’s habitation is fixed and to which, whenever he is absent, he has an intention of returning. Wyoming Statute, § 22-118.3k. The last cited subsection of the statute also provides that a person must not be considered to have gained a residence in any county into which he comes for a temporary purpose merely, without the intention of making such county his home. This action of appellee completely negates any vague and indefinite expressions of a desire to return to Arkansas, insofar as determination of place of domicile is concerned.

The point of controlling importance, which cannot possibly be swept under the judicial rug, is that the legislature meant for the Police Director to have actually lived in the state for ten years next preceding his appointment. Lynn Davis lived outside the state for more than seven of those ten years. He is thus not qualified to hold the office.

Reversed and remanded for the entry of a judgment consistent with this opinion.

Ward, J., dissents.

Paul Ward, Justice,

dissenting. Although the issues here raised cannot be easily resolved, I am not in agreement with the result reached by the majority which holds that Davis was neither a resident nor a domiciliary of Arkansas.

It is necessary therefore to examine the meaning of both of the emphasized words in construing Ark. Stat. Ann. § 42-404 (Repl. 1964).

Residence. This 'Court’s former opinions demonstrate that the word “residence” is subject to construction and that it has a flexible meaning depending upon the circumstances involved. See: Wheat v. Smith, 50 Ark. 266, 7 S. W. 161; State v. Red Oak Trust & Savings Bank, 167 Ark. 234, 267 S. W. 566; Mutual Benefit Health and Accident Association v. Kincannon, 202 Ark. 1128, 155 S. W. 2d 687, and Cassen v. Cassen, 211 Ark. 582, 201 S. W. 2d 585. Other cases could be cited. The cases also reveal that the words “residence” and “domicile” are sometimes interchangeable, depending on the context in which they are used.

The question to be resolved, therefore, is: Did the legislature mean that Davis must have been actually present in this State for ten years, or that he must have been a “domicile” of this State for ten years'? All these matters were properly considered by the trial judge, going to the intent of the legislature.

The majority cite no opinion of this Court, and I know of none, that has ever construed the word “resident” as used in the statute under consideration. The opinion does mention several cases to support it, but, I submit, a close examination reveals that none of them do so.

(a) The Krone case pertains to Attachment, and no statute is cited. It does refer to a Missouri opinion as holding “domicile” and “residence” have the same meaning.

(b) The Jarrel case also deals with Attachment, citing the Krone decision. It does contain these significant statements: ‘ ‘ The question of residence is a mixed one of law and fact.” The Court, referring to the Krone case, said: “The court recognized that the words ‘resident’ and ‘nonresident’ as used in our statute relating to attachments, had never been defined by this Court...”

(o) The Missouri Pacific case dealt with the question of venue under Act No. 314 of 1939. The word used in that Act is “resided”.

(d) The Norton case construed the same Act of 1939 above mentioned, which used the same word, “resided”.

(e) The Harris case again construed the word “resided”.

(f) The Husband casé construed the words “usual place of abode” as used in Ark. Stat. Ann. § 27-330 (Repl. 1962).

(g) The Shelton case construed the word “resided” as used in Ark. Stat. Ann. § 62-203. Webster describes the word “reside” as remain, stay, be present. The same definition is given by Black’s Law Dictionary.

It must be concluded from what is pointed out above that the majority rely on no pertinent decision of this or any other court to sustain its conclusion. If the legislature, in enacting section 42-404, meant that Davis must remain or stay in Arkansas for ten years it would have used the word “reside” as it had done in so many other instances. When it used the word “residence” the legislature, in my opinion, meant Davis must be domiciled in Arkansas for ten years, especially so, being aware of the Arkansas Constitution, Article 19, § 7, which reads:

“Absence on business of the State or of the United States, or on a visit or on necessary private business, shall not cause a forfeiture of residence once obtained.”

However, the majority say Davis was not a domicile of Arkansas. Again, I disagree. It must be conceded, under the undisputed facts in this case, that Davis was at all times away from Arkansas on business either for the United States or on private business.

In view of what has heretofore been said, I submit there is substantial evidence to support the trial court’s finding that the legislature meant for the Director of Police to be a legal resident or domicile of this State. However since the majority hold Davis was not a domicile of Arkansas, that issue must now be examined.

Domicile. Was Davis a domiciliary of Arkansas? That question can only be answered in the affirmative Avhen fair consideration is given to our own unchallenged definition of “domicile” and to the undisputed facts in this case.

In the case of State v. Red Oak Trust & Savings Bank, 167 Ark. 234, 267 S. W. 566, we find this statement:

“To effect a change of residence or domicile there must be an actual abandonment of the first domicile, coupled with an intention not to return to it, and there must be a new domicile acquired by actual residence in another place or jurisdiction, with the intention of making the last-acquired residence a permanent home.”

An examination of the undisputed “facts” in this case is revealing and convincing.

(a) It is not, and cannot be, disputed that Davis was once a domiciliary and legal resident of this State. He was born here in 1933; he married here in 1952; he went to school and taught school in this State; he owned (.and still owns) a home here; his parents and grandparents were domiciled here.

(b) We now look to see if Davis did actually (1) abandon his established domicile with the intent not to return, and (2) to acquire a new domicile with the intent to make it a permanent borne? Based on the facts presently set out I submit that both questions must be answered in the negative.

(1) Davis and his wife both testified they did not abandon their home or domicile in Arkansas, but, to the contrary, they stated they at all times intended to return. There is no testimony to the contrary, the trial judge so found, and I know of no reason for reversing the holding of the trial judge on that feature of the case.

(2) Did Davis acquire a legal residence, domicile, or permanent home elsewhere? I submit the answer must be “no”.

I concede appellant’s right to argue, in this connection, that Davis’ “actions” speak louder than his “words”. In doing so, they must rely on the Texas and the Wyoming incidents to show his “actions”. Consequently, it is necessary to examine the record relative to those “incidents”.

Texas. In 1960, while Davis was living in his hometown of Texarkana, Arkansas, he took a job to sell houses just across the state line in Texas. He moved there and bought a house at the suggestion of his employer, because he thought it would help to sell more houses. He lived and worked there about one year when he secured a job with the F. B. I. He tried to sell the house when he left but could not find a buyer. Relative to this incident he testified: “When I moved in this house in Wake 'Village, Texas, I did not have any intention of making this my permanent home. I wanted to get back to Texarkana, Arkansas, as soon as I could. ’ ’ There is no testimony to the contrary, and I submit the trial judge was fully justified in believing Davis.

Wyoming. After Davis was sent by the F. B. I. agency to several other states he was assigned to duty at Rock Springs,. Wyoming. There he rented, a house where he remained approximately two years. He left there in the summer of 1966, on orders, and went to California where he lived in two different places. Davis’ undisputed testimony was that he never intended to make Wyoming his home, hut always was trying to get the F. B. I. to send him back to Arkansas. Again, this testimony satisfied the trial judge, and it satisfies me.

Appellants lay great stress on the fact that Davis registered in Wyoming to vote for a friend, to show he intended to make Wyoming his domicile or permanent home. The. trial judge did not think, and I do not think any such intention is reasonably deducible. Davis had been a resident of Wyoming for more than a year, and he could have reasonably concluded that thjs gave him a legal right to vote. Wy. Stat. § 22-133 reads, in pertinent part, as follows.:

“Every citizen of the United States of the age of 21 years and upward who has resided in the state one year . . . and who has complied with the registration laws . . . shall be entitled to vote . . . .” (Emphasis ours.)

It is admitted by everyone that Davis had “resided” in Wyoming one year, and therefore had a perfect right to register and to vote. How anyone can conclude, from that incident, Davis did, or could have meant to, abandon his domicile in Arkansas is beyond my comprehension.


author: Conley Byrd, Justice.

text:
    Carl WIDMER v. APCO OIL CORPORATION
    5-4422
    421 S. W. 2d 388
    Opinion delivered December 18, 1967

      Carl Widmer, pro se.

      Warner, Warner, Ragon & Smith, for appellee.
   Conley Byrd, Justice.

The issues in this appeal by appellant, Carl Widmer, against appellee, Apeo Oil Corporation, are identical, except for names of parties and amounts, with those in Carl Widmer v. Gibble Oil Company, 243 Ark. 735, 421 S. W. 2d 886, decided this date. The case is affirmed for the reasons therein stated.


author: Conley Eyed, Justice.

text:
    Gene Bryan KENNEDY v. Helen Ovita KENNEDY
    5-4405
    421 S. W. 2d 611
    Opinion delivered December 18, 1967

      Rout, Thaxton & Rout, for appellant.

      Ward & Mooney, for appellee.
   Conley Eyed, Justice.

Appellant, Gene Bryan Kennedy, questions the authority of the chancellor, before entry of a final divorce decree, to reopen the case to permit the wife, Helen Ovita Kennedy, to introduce certified copies of deeds to the real property jointly owned by the parties.

The record shows that at the beginning of the hearing appellant refused to stipulate that the real property was jointly owned, but that he did stipulate to a description of the property. After the close of the hearing the chancellor found that the wife was entitled to a divorce and that no effort had been made to show how the title to the real estate was held. He concluded that he would have to assume that the title was in appellant, entitling the wife to one-third for life. The chancellor hesitated to order a sale of the property for purposes of making a division. Hoping that counsel could work out a division, he gave them until a day certain to do so, with the understanding that if a division had not been worked out by that time, he would take the matter in his own hands and make a distribution.

Before the day certain the wife filed a motion to reopen the case to introduce certified copies of deeds showing the joint ownership of certain real property involved. The chancellor granted the motion, held a hearing and incorporated into the final decree a sale and distribution in accordance with the title as shown by the deeds.

Appellant either mistakes the chancellor’s oral statement dictated into the record after the first hearing as a final decree or misunderstands the nature of a Bill of Review. As to the latter, its function is to permit the chancellor, under certain limited circumstances, to review and reverse a final decree already entered of record. A Bill of Review has no application to the discretion vested in a chancellor to reopen a case before the entry of final decree upon the record. Turner v. Tapscott, 30 Ark. 312 (1875); Tollett v. Knod, 210 Ark. 785, 197 S. W. 2d 744 (1946); McCullough v. Leftwich, 232 Ark. 99, 334 S. W. 2d 707 (1960).

Nor can we find any merit to appellant’s contention that the chancellor abused his discretion in reopening the case.

Affirmed.


author: Conley Byrd, Justice. Paul Ward, Justice,

text:
    John Norman HARKEY, Commissioner v. Kay L. MATTHEWS, Chancellor
    5-4451
    422 S. W. 2d 410
    Opinion delivered December 18, 1967
    [Rehearing denied January 29, 1968]

      Allan W. Horne, for petitioner.

      Garner & Parker, for respondent.
   Conley Byrd, Justice.

The Insurance Commissioner for the State of Arkansas by this proceeding seeks a writ to prohibit Kay L. Matthews, Pulaski Chancery Judge, from proceeding on a petition for injunction filed in his court by Savings Guaranty Corporation, an insurance company licensed under the laws of Arkansas. We deny the petition for failure to abstract the record in accordance with our Rule 9(d).

Rule 9(d) provides that the abstract should consist of an impartial condensation, without comment, of such parts of the pleadings, proceedings, facts, documents, etc. as are necessary to an understanding of all questions presented.

The petitioner’s abstract of the record is as follows:

“The grounds for the petition and the facts on which the petition are based are set out in the petition for Writ of Prohibition and may be briefly summarized as follows: On August 9, 1967, the 'Commissioner held a hearing relative to Savings Guaranty Corporation. At the conclusion of the hearing the Commissioner ordered that the Certificate of Authority of Savings as to a certain part of its business should be suspended but that the formal entry of the order should be withheld for a period of two weeks or such additional time as may be necessary. The Commissioner retained jurisdic- . tion for such further orders as may be necessary in the premises. On August 22,1967, 'Savings filed in the Chancery Court of Pulaski County, Arkansas a pleading entitled Petition for Injunction wherein Savings prayed for an order prohibiting and enjoining the Commissioner from entering the above-mentioned order on hearing. On the-same date, without notice or hearing, a temporary order was entered in accordance with the Petition for Injunction. On August 25, 1967, Savings filed a pleading entitled ‘Petition for Citation for Contempt,’ alleging that the Commissioner had issued his finding of fact and order in violation of the Chancery Court’s temporary order and prayed that the Commissioner be held in contempt of court. On August 23,1967, the Commissioner filed a motion to dismiss the Petition for Injunction for lack of jurisdiction, and an answer to the Petition for Citation for Contempt. On September 7, 1967, after a hearing held on August 28, 1967, the Chancery Court entered an order holding that it had jurisdiction of the Petition for Injunction, denying the Petition for Citation for Contempt, and ordered that the effectiveness of the Commissioner’s order be held in abeyance pending a final hearing on the Petition for Injuncttion. As we understand the respondent’s position, it is conceded that the Chancery Court does not have jurisdiction to enjoin the Commissioner after he has entered his order, it being necessary to follow the statutory procedure provided for appeals from the Commissioner’s order. Thus, the single issue before this Court is whether the Chancery Court has jurisdiction to enjoin or prohibit the Commissioner from entering such order.”

The only indication in the abstracts and briefs of either petitioner or respondent showing the enjoined conduct was in respondent’s statement of his case. That was that the “Certificate of Authority as to the surety business of Savings Guaranty Corporation with Arkansas Loan & Thrift Corporation is hereby suspended” but that “the Insurance Commissioner will withhold formal entry of this Order for two weeks, or such additional time as may be necessary.”

We have consistently held that for the writ of prohibition to issue, it must appear that the trial court proposes to act in a matter not within its jurisdiction and that petitioner has no other remedy to prevent the usurpation of jurisdiction, Harris Distributors, Inc. v. Marlin, Judge, 220 Ark. 621, 249 S. W. 2d 3 (1952).

Our cases also recognize that equity has'jurisdiction to restrain acts of public officers or agencies which are ultra vires and beyond the scope of their authority, Jensen v. Radio Broadcasting Co., . Inc., 208 Ark. 517, 186 S. W. 2d 931 (1945). Of course, if the matter at issue before the Commissioner is one which he is given authority' to regulate, then the Chancery Court would have no' jurisdiction, but unfortunately we are unable from the record as abstracted to make a determination either way on the matter. In this situation we must deny the petition.

Denied.

Harris, C. J., Ward and Jokes, JJ., dissent.

Paul Ward, Justice,

dissenting. The majority opinion contains this sentence: “We deny the petition for failure to abstract the record in accordance with Bule 9(d). ” It then proceeds to state the provisions of that rule.

The above rule has no application in this kind of a proceeding. Applicable in a prohibition proceeding before this Court is Buie number 16 which we applied less than ten days ago in the case of Phillip Carroll v. Phil Stratton No. 4530 where we issued a temporary writ of prohibition on a petition without any briefs or abstract of the record. There, we not only granted a temporary writ but we specifically told the petitioner to proceed under Bule 16. This Buie, in material parts, reads:

PETITIONS FOB PBOH1BITION, CEBTIOBA-BI, ETC.
“In cases in which the jurisdiction of this court is in fact appellate although in form original, such as petitions for writs of prohibition or certiorari, the pleadings with their exhibits are treated as the record, and the pleader is required to file only the original typewritten copy ...”

The majority opinion also states that the only indication “showing the enjoined conduct” was the order of the Commissioner. That this statement is wholly unfounded is revealed by a casual reading of the Commissioner's petition filed in this Court, and his brief. Also, pursuant to said Rule 16, we can consider the entire record which was filed here together with the petition.

Prom the above sources it can be easily ascertained that the Commissioner makes it abundantly clear that he was, when stopped by the Respondent, proceeding-under Árk. Stat. Ann. § 66-2126 (Repl. 1966) which says he “shall act in a quasi-judicial capacity”, and under the succeeding section which says that when he makes an order or refuses to “grant or hold a hearing after demand” an appeal “shall be granted as a matter of right to the Circuit Court. . .” (Emphasis added.)

Tn view of the above this Court should not only consider the petition on its merits but should also grant it, based on the following statement appearing in the majority opinion: “. . . if the matter at issue before the ■Commissioner is one which he is given authority to regulate, then the Chancery Court would have no jurisdiction. . .”

It appears that the only reason for the Respondent’s action in this case was that the affected Insurance Company might suffer a financial loss if the Commissioner performed the duties imposed on him by the statutes. If such procedure is sanctioned by this Court the Arkansas Insurance Code [enacted to protect the people] might as well be repealed, because any insurance company that should be investigated will necessarily suffer a financial loss when its deficiency is exposed.

Harris, C. J. and JoNes, J., join in this dissent.


text:
    PLASTICS RESEARCH & DEVELOPMENT CORP. v. Bill NORMAN et al
    5-4308
    422 S. W. 2d 121
    Opinion delivered December 18, 1967
    [Rehearing denied January 22, 1968]

      Shaw, Jones So Shaw and Bethell So Pearce, for appellant.

      Hardin, Barton, Hardin So Jesson, for appellees.
   Conley Byrd, Justice.

This litigation between appellant, Plastics Research & Development Corporation, and appellees, Bill Norman and Rebel Manufacturing 'Company, Inc., arises out of the manufacture and sale of a plastic fishing lure called “Rebel.” At issue is (1) whether Bill Norman breached his employment contract with Plastics Research calling for 4 per cent of the net profits of their lure department, (2) the method of calculating the net profits for the lure department as distinguished from the net profits of appellant’s whole operation, and (3) whether Bill Norman and Rebel Manufacturing are guilty of unfair competition in the marketing of an identical lure.

Bill Norman commenced the litigation by filing cause No. 3773 based onjiis contract of employment with Plastics Research, which provided in part:

“* * * 2. Employee will receive a base salary of $800.00 per month for the year November 1, 1964 through November 1, 1965. In.addition thereto Employer agrees to pay to Employee, as a bonus 4% of the net profits of the Lure Department for the fiscal year November 1, 1964, ending November 1, 1965.”

He prayed for an accounting of the net profits of the lure department and ■ for a judgment for 4 per cent thereof. Appellant pleaded that Norman had breached his employment contract by incorporating “Rebel Manufacturing Company, Inc.” on October 25, 1965, before his employment ended, and that Norman had solicited appellant’s sales representatives to withhold orders to appellant until Rebel Manufacturing got into production of an identical lure. Prayer was that Norman take nothing on his complaint and that he be enjoined from using any information acquired while employed by appellant in the manufacture, promotion or sale of fishing lures. It was also asked that Norman be enjoined from engaging directly or indirectly in the manufacture of lures using the name “Rebel” or “Rebel Minnow.”

Subsequently appellant filed cause No. 3858 against both Norman and Rebel Manufacturing, alleging unfair competition and praying that Norman and Rebel Manufacturing bo restrained from, manufacturing' a fishing lure similar to the “Rebel’Mure,.from using the name “Rebel” and from representing that appellant was in financial trouble, that Norman me directed to turn over to appellant any molds made from appellant’s materials, and for damages.

The two causes were consolidated for trial. In cause No. 3858 the trial court found no unfair competition but did enjoin Norman from making statements to the effect that appellant was in such bad financial shape that it could not make delivery of goods. In cause No. 3773 the trial court found no breach of the employment contract by Norman and calculated the net income of the lure department to be $367,231.64, resulting in a judgment in Norman’s favor of $14,689.26 for his bonus.

The record shows that Norman was in the fishing lure manufacturing business on his own, to some extent, at the time of his employment by appellant in the spring of 1963. Norman’s first pay check from appellant was for $300 before deductions. By-August 1964 his salary, by written agreement, had been increased to $15,000, and for the year ending October 31, 1965, he had a base contract for $800 per month plus 4% of the net profits of the lure department. Sales of the “Rebel” lure had climbed from nothing, at the time Norman was employed, to $893,884.50 for the year ending October 31, 1965. Appellant fired Norman on November 5, 1965.

A dispute between Norman and appellant about the net profits of the lure department had arisen before his discharge. Counsel was retained by Norman by October 18, 1965, and appellant was so notified on that date by Norman’s counsel. Prior to June 20, 1965, statements showing sales and costs of purchases had been furnished to Norman, but because of labor problems between appellant and its employees no statements were furnished thereafter.

With reference to Norman’s alleged breach of the employment contract, the record shows that he caused “Rebel Manufacturing Company, Inc.” to be incorporated on October 25, 1965, six days before the termination of his employment contract. Prior to October 31 Norman had discussed with other employees the possibility of going into a competitive business. Furthermore, there was testimony by appellant’s sales representatives that around November 1, 1965, Norman had solicited them to hold their orders until he could get into production.

The trial court found that Norman’s conduct amounted to nothing more than a mere, planning for employment upon the termination of his employment contract. The finding is amply supported by the record and is in accord with our prior cases. In Hamilton Depositors Corp. v. Browne, 199 Ark. 953, 136 S. W. 2d 1031 (1940), we recognized that merely organizing a corporation during employment to carry on a rival business after expiration of the term of employment did not amount to a breach of an employment contract. One is entitled to seek other .employment before he is on the street.

The net profits of the lure department present the most difficult issue in this litigation. Obviously “net profit” means that which is left after payment of necessary expenses. The dispute here is complicated by appellant’s departmentalized accounting and the allocation of indirect expenses among its several departments. The departmentalized accounting and intercompany charges were explained by Loren Janes, appellant’s accountant, in this manner: ■

“Q. Now, take for instance, as I understand it, your plant is departmentalized?
A. Yes.
Q. Now mention has been previously made about charges to various departments. You have ' also outside customers do you not, such as Norge and so forth?
A. Yes.
Q. Are they charged on the same basis as your departments ?
A. No
Q. What is the difference?
A. It is a compromise difference, but essentially it is half the profit potential or 10% less is just what it about amounts to. Exactly what it amounts to, in fact, the in the Lure Department for instance, [sic]
Q. I don’t understand that. Exactly what do you mean?
A. In the case of Norge, we would take a job, we would take a mold to run in our press, we would charge them at $8.00 per hour per thousand pieces plus material at cost, or reasonably therefor.
Q. What did this $8.00 encompass?
A. This covers everything including profit for the Production Department.
Q. Now, assume that the same item was manufactured for the Lure Department.
A. You would charge it at $7.20 per hour.”

Janes testified that when a payroll was written, he directly allocated charges in labor hire, labor production, labor tooling, or labor overhead; and that when a person worked in a department his labor cost was directly charged to that department, but with overhead labor, the cost was spread according to an allocation agreed upon between the department heads, including Norman-

With reference to supplies and expenses, Janes testified that they were allocated each month on the basis of each department’s outside sales as a percentage of the company’s total outside sales. Thus, if the lure department sold 50 per cent of. the sales of the whole company, the production department 30 per cent and the tooling department 20 per cent, these supplies would be charged on the basis of 50 per cent of the cost, say, of printing checks, to the lure department, 30 per cent to the production department and 20 per cent to the tooling department.

The records kept monthly by Janes show many discrepancies between the monthly allocations and the final allocations. For instance, the total “Direct Labor” shown on the monthly books was $84,441.51, whereas the total calculated by appellant after Norman was fired was $98,005.18. No explanation is given for the nearly $14,000 difference. The cost of purchases, as shown by the monthly books, was $148,039.70, but appellant’s final calculation showed this figure to be $280,023.02.

The discrepancy in the figures involving cost of purchases was demonstrated in the following manner. Janes showed that for the eight months ending June 30, 1965, sales totaled $707,992.47 and purchases totaled $180,019.09, being a cost-to-sales ratio of 24.3 per cent. Sales on September 30 totaled $849,863.87 and purchases to the same date totaled • $206,016.55, being a ratio of 24.2 per cent. Sales on October 31 totaled $893,884.50, but purchases had climbed to $280,023.02, for a cost-to-sales ratio of 31.3 per cent. By subtracting the September 30 total sales of $849,863.87 from the October 31 total of $893,884.50, and the total cost of purchases as of September 30 ($206,016.55) from the October 31 total ($280,023.02), we find that while sales increased only by $44,020.63 for October, the cost of purchases increased by $74,006.47. With respect to the October purchases, Janes testified (as abstracted by appellant):

“I have testified that the figures were kept monthly on each department. I have a breakdown on the cost allocated to the lnre department including outside purchases for October, 1965. That figure is $12,676.62. I am a dime off in my reconciliation, the outside invoices total $4,229.86. That’s outside purchases as evidenced by invoices. The lure molding charge for the production department to the lure department for the month of October was $5,816.00 even. The lure metalizing charge for metalizing the lures for the month of October was $2,694.57. There was an audit adjustment and I have got the adjustment in a box, but there was an additional $63.91 minus due to an audit adjustment. I didn’t have the .time last night to actually track it down. So we actually reduced the purchases by $63.91 and that should total with the 10-cent error that should total to $12,676.62. That is the figure that is reflected on the monthly financial statement of the lure department. With reference to Plaintiff’s Exhibit 15 that does not reflect all the outside purchases for the lure department. It could not because there is only $3,000.00 here and we entered $4,000.00. It could not, they have missed something.” (Emphasis supplied.)

The general ledger kept by Janes also showed an inventory for October 31 of $153,889.66 and a $44,049.82 adjustment which Janes stated was due to defective lures removed from inventory and placed in a warehouse. While Janes was sure of the inventory loss because of defects, yet both he and Mr. Perrin, appellant’s president, testified that everything shippable from the lures placed in the warehouse had been shipped by October 31.

Many other unexplained discrepancies appear in appellant’s calculation of income for the lure department. For instance, Janes testified that costs of supplies and expenses were allocated monthly. By the monthly records the total of the costs allocated to the lure department was $4,560.60, but in appellant’s subsequent tabulation of income for tbe lure department $9,178.30 had been allocated for these costs. In the matter of executive salary allocation, there was included in the lure department’s charges for 1965 the sum of $5,600 paid to Norman in 1965 as the bonus on his 1964 contract.

Furthermore, in connection with the net profits issue the record shows a number of accounting exhibits, which were referred to by the witnesses sometimes by exhibit number and sometimes as “that statement.” None of the exhibits was abstracted, even though it would not have been impracticable to do so.

Under this state of the record, we are unable to say that the trial court’s finding of net income, substantially upon the basis of appellant’s general ledger, is not supported by the evidence. Because of the many discrepancies, he could very well have disregarded the allocations of indirect expenses made by appellant’s accountants following Norman’s dismissal.

On the issue of unfair competition, the record is clear that the “Rebel” lure was copied from the “Rapalla” lure, a balsam wood product from Finland. The difference is that the “Rebel” lure is made of plastic and has some other refinements, such as floating depth and the manner and location of the hook attachments. There is no doubt that Norman’s minnow is a copy of the appellant’s. Furthermore, the testimony was that appellant had expended in excess of $100,000 advertising its minnow as the “Rebel Minnow” and the “Amazing Rebel Minnow.” Norman advertised his minnow as the “Reb-1” and as the “Amazing Minnow.” He used the same series number to identify the size of his minnows as did appellant.

Norman’s right to copy appellant’s “Rebel” minnow is guaranteed to him by the federal patent laws, see Sears, Roebuck & Co. v. Stiffel Co., 376 U. S. 225 (1964). However, this does not mean that he can poach on appellant’s advertising in such manner as to palm off his product as that of appellant. Nor is it necessary for appellant to prove actual deception of customers before he is entitled to an injunction where that is the natural and probable result of Norman’s conduct, Robert Reiss & Co. v. Herman R. Reiss, Inc., 63 N. Y. S. 2d 786 (1946).

Exhibit J-l, Norman’s “Amazing Minnow,” is packaged in a blue and white box similar to that of appellant’s “Rebel” (Exhibit J-2). Where appellant has the word “Rebel” printed in white on the blue background with the Confederate flag in the top of the letter “R,” Norman has two crossed Confederate flags in similar red and white on the blue background. On the white portion of the box Norman has in red the words “Amazing Minnow.” Appellant, on the white portion of its box, has in red an outline of its lure. On the white ends of the boxes both exhibits have either stamped or printed thereon “103 Blue.” Thus it is seen that confusion is the natural and probable result of Norman’s conduct in the packaging of his product.

Consequently we hold that the trial court, in addition to its action with reference to appellant’s financial condition, should have enjoined Norman and Rebel Manufacturing Company, Inc., from using the words “rebel,” “Reb-1” or “amazing” in connection with the marketing of its minnows. This includes also the word “Rebel” in the Rebel Manufacturing Company, Inc. Nor do we think it was permissible for Norman to use the same series number to designate the color and sizes of his minnows — there is a considerable difference between the use of “9” and “99’r” in the case of James Heddon’s Sons v. Millsite Steel & Wire Works, (6 Cir., 1942) 128 F. 2d 6, and the exact duplication of the series here.

Appellant asked for damages but tbe abstract fails to show any damages to have been sustained. Therefore its claim for damages is denied.

The bonus judgment is affirmed. We are reversing and remanding this cause with directions to enter an injunction restraining Norman’s and Rebel Manufacturing Company’s unfair competition in accordance with this opinion.


author: Conley Byrd, .Justice. Lyle BrowN, 7 ?tice,

text:
    Raymond Reed et al v. Frank McGibboney et al
    5-4298
    422 S. W. 2d 115
    Opinion delivered December 18, 1967
    [Rehearing denied January 22, 1968]

      Hodges, Hodges & Hodges and John Bnrris, for appellants.

      Lightle & Tedder, for appellees.
   Conley Byrd, .Justice.

Appellants Raymond Reed, the driver, and Ray Whitkamp, the owner of an automobile involved in a head-on collison near Cabot, Arkansas, which injured appellees Mr. and Mrs. Frank Mc-Gibboney, their daughter Sheila and Mrs. McGibboney’s sister, Jackie L. Hamilton, on August 23, 1965, appeal from judgments totaling $47,100, raising numerous issues.

Ray Whitkamp, Lee Huckabee, Henry Schaechtel and Alvin Slayton were members of -the Southern Farmers Association Cooperative. On August 23, 1965, at the suggestion of the local manager of the Co-op, they attended an open house of the Southern Farmers Association in Little Rock with Raymond Reed. They drove from Pocahontas in* Whitkamp’s car, with Reed driving at Whitkamp’s request. On the return trip, at a point on highway 67 six-tenths of a mile south of the Cabot city limits, Reed drove over a rise in the highway and found that a car ahead had stopped to make a left turn off the highway. Two cars were stacked np behind the left-turning vehicle and a third car immediately in front of Reed, driven by Richard Thompson, pulled to the right shoulder to avoid colliding with the stacked up vehicles. When Reed was unable to stop before colliding with the vehicles ahead, he pulled to his left in an effort to pass the stacked vehicles and turn into a. driveway off the left side of the highway. In so doing, he collided with a vehicle driven in the opposite direction by Frank McGib-boney, in which the other appellees were passengers. The collision occurred at a point some two to twelve feet off the paved portion of the highway.

Frank McGibboney received cuts and contusions. His pregnant wife received, in addition to cuts and contusions, a comminuted tibial plateau fracture of the knee and fractures of the second and third metacarpals (the hones immediately between the knuckles and the wrist) of the right hand.

Sheila McGibboney had a minor concussion and several cuts, contusions and bruises which resulted in a two-inch scar on her head near the hairline.

Jackie Hamilton received multiple lacerations of the face and nose, requiring over 200 sutures. She was bleeding so profusely at the scene of the. accident that she was blinded with her own blood and thought she was going to die because of the blood coming from her throat. Her facial scars are permanent and will persist even with plastic surgery.

The jury awarded $1,350 to Frank McGibboney, $750 to his daughter Sheila, $15,000 to his wife, and $30,000 to Jackie L. Hamilton.

Appellants’ first contention is that the trial court erred in admitting color photographs, made by Dr. Hayos, of Jackie Hamilton’s condition when she arrived at the hospital. Even though the trial court found the photographs to be inflamatory, we do not think he committed reversible error in permitting them to be introduced and exhibited to the jury. In Russell v. Coffman, 237 Ark. 778, 376 S. W. 2d 269 (1964), we pointed out that the admission of photographs is ordinarily within the trial court’s discretion, particularly when the picture is an aid to making the testimony of the witnesses more easily understood. We think our reasoning* there is sound, for if a Thomas Gray, a William Shakespeare or an Edgar Allan Poe had witnessed the accident, their descriptions of it would as aptly and inflammatorily have described Jackie Hamilton’s condition as do the pictures in this record. And while appellants would agree that the eloquence of a Gray, a Shakespeare or a Poe would not help their cause, we do not believe that they would argue that their word description would not be legitimate or proper to go to the jury. Consequently we do not find the pictures, which show what words would have described, to have been improperly admitted. The pictures certainly demonstrated that Jackie Hamilton was not puffing when she said she feared for her life.

On the day following the collision Herman West, accompanied by appellees’ attorney, made photographs of the scene of the accident. At the trial, both he and State Trooper Lyndell Holcomb were permitted, over objection, to identify on the photographs the point of impact of the two vehicles. While such identification may not be technically proper, under the record here we are unable to see how the matter constitutes reversible error. It was not disputed that Reed pulled into the left lane or that the collision occurred off the paved portion of the highway. Reed testified that he did not see the McGibboney vehicle coming from the north until he pulled to the left, and unequivocally stated that he knew he was going to have a wreck there anyway if he could not get off. He expected to hit someone and pulled to the left because in his opinion that was the best thing to do. The testimony of witnesses West and Holcomb was to matters ordinarily stipulated in a trial of this kind, and we find that any error of the trial court in connection with the point of impact is harmless error.

Appellants complain of the testimony of Drs. Hayes and McKenzie about the possible aftermath of the injuries to Jackie Hamilton and Mrs. McGibboney. Dr. Hayes’ testimony concerned the effect that facial scars such as Jackie’s could have upon young girls of her age. The doctor testified that he could not predict what would happen in an individual case — that he had seen young girls become sort of recluses and others who did not give any external evidence of psychological maladjustment. His testimony was that it might affect her in the future. Dr. McKenzie testified that there was a possibility of Mrs. McGibboney’s developing an arthritic change in her knee because of the fracture of the cartilage and the inability to get a complete anatomical reduction of the surface of the lateral joint space.

We agree with the trial court that Dr. Hayes’ medical opinion about the psychological effect in general of such scars upon young girls was properly admissible. We also agree with the trial court that Dr. McKenzie’s statement was proper, since his other testimony showed that Mrs. McGibboney had already developed some arthritic changes in her right ankle from injuries received in a prior accident. Great Republic Life Ins. Co. v. Lankford, 198 Ark. 166, 127 S. W. 2d 811 (1939)

On the issue of joint enterprise, the proof shows that the Co-op members were traveling in Whitkamp’s car, driven by Beed, for the common purpose of attending a Southern Farmers Association open house. Mr. Whitkamp asked Beed to drive his automobile. Whit-kamp stated that he could have asked him to stop the car and taken control himself at any time. Upon this evidence plaintiffs offered the joint enterprise instruction (A.M.I. 712). Appellants’ objections to the instruction were as follows:

“MR. HODGES: We submit, in behalf of the defendants, that there is no evidence of joint enterprise in this case; that if there is any evidence of any sort to go to the jury, which we deny, it is rather evidence of agency relationship and should be corrected and defined to them in those terms rather than joint enterprise.
THE COURT: This is an objection which you are stating to plaintiffs’ requested instruction No. 3?
MR. HODGES: Yes, sir.
THE COURT: It has to do with joint enterprise and the Court is giving said requested instruction as it is requested and the objection thereto is overruled.
MR. HODGES: Note our exceptions to the Court’s ruling. ’ ’

Appellant argues here that the joint eirterprise instruction was erroneous and that the trial court should have' submitted to the jury the instruction on agency (A.M.I. 705). In accordance with Woodard v. Holliday, 235 Ark. 744, 361 S. W. 2d 744 (1962), we hold that there was a sufficient showing of a community of interest and of equal rig’ht to share in the control and operation of the vehicle to warrant the submission to the jury of Whit-kamp’s vicarious liability upon either the theory of joint enterprise, or the theory of agency, or both. However, we point out that appellants did not offer an instruction on agency and they are not now in a position to complain of the trial court’s action in not instructing the jury that they could in the alternative have found an agency relationship instead of a joint enterprise.

The alleged error of the trial court in failing to instruct the jury with reference to the imputed negligence of MeGibboney to his passengers is without merit, since the jury specifically found upon an interrogatory that MeGibboney was not negligent.

On the rule of the road instruction (A.M.I. 901 [B]) the trial court instructed the jury that ‘ ‘ When the driver sees danger ahead, or it is reasonably apparent if he is keeping a proper lookout, then he is required to use ordinary care to have his vehicle under control . . .” Since the evidence shows that McG-ibboney, as he proceeded along the highway, saw the vehicle waiting to make the left turn and the two or three vehicles ^stacked up behind it, appellants argue that the rule of the road instruction (A.M.I. 901 [B]) should have included the phrase “or if he is warned of approaching imminent danger.” We hold this contention to be without merit. To hold otherwise would place the court in the position of saying that every motorist when passing a vehicle waiting to make a left turn is warned of approaching imminent dang’er. This we are not. willing to do.

Appellants’ contention that the trial court erred in instructing on speed, following too closely, and overtaking and passing is not supported by the evidence. Reed admits that, at the speed at which he was traveling, he could not stop in time to avoid colliding with the vehicle in front of him; and that to avoid that collision he pulled to the- left to pass the stacked up vehicles with the intention of turning into a driveway on the left or west side of the highway.

We can find no evidence in the record to support appellants’ contention that the trial court should have instructed the jury on the duty and care of a passenger (A.M.I. 910).

In applying the rule on the duty and care of a passenger, we must keep in mind that before there is any substantial evidence to submit the issue to the jury, it must be shown that the passenger’s conduct was a negligent act or omission and that in the production of the injury, it operated as a proximate cause or one of the proximate causes and not merely as a condition.

Furthermore, one is not negligent in assuming, until the contrary is or reasonably should be apparent, that every other person will use ordinary care and obey the law.

In the oncoming lane of traffic facing McGribboney was a vehicle signaling a left turn across his lane of traffic, and two more vehicles stacked up behind the waiting left turn vehicle. That situation, of itself, created no duty upon the passengers or guests in McGib-boney’s vehicle to warn him of imminent danger.

If we should assufhe that the failure of the passengers to see the movement of appellants’ vehicle into their traffic lane was a negligent act or omission, we are then met with the issue of causation. The facts show that appellants were traveling north at approximately 60 miles per hour (or 88 feet per second) and that the McGibboney vehicle was proceeding in the opposite direction at the same approximate speed. Because of the rise in the road the two vehicles were not visible to each, other for any great distance. Reed did not see Mc-Gibboney until he got in McGibboney’s lane of travel. McGibboney estimates the distance from his vehicle to Reed’s when Reed came into his lane as 75 yards. Both drivers place th*e distance at which they could first have seen each other at much less than a quarter of a mile. Therefore, if the passengers upon the point of first visibility had warned McGibboney, “Watch out, that car is apt to come over in our lane,” it will be observed that, on the basis of 120 words of speech per minute, the collision could have already occurred before the warning had been completed — for the closing distance between the two cars was at the rate of 176 feet per second. What we have demonstrated here is that, in this head-on collision, the thing happened so fast that it would be pure speculation for the jury to find that the passengers ’ failure to warn the driver was a proximate cause of their injuries. Our law does not permit the jury so to speculate.

If appellants ’ contention about the due care instruction be on the basis that the passengers’ injuries would not have been as great if they had been using ordinary care for their own safety, they are again met with a lack of proof. There, is nothing in the record but speculation to show that the injuries would have been minimized had the passengers been keeping the lookout which appellants would now desire.

Nor do we find the verdicts in favor of Mrs. Mc-Gibboney and Miss Hamilton to be excessive.

The point which disturbs „us most is the trial judge’s- modification of Arkansas Model Instructions 204 and 206 over the objection of both parties. The instruction as requested, being a modification of A.M.I. 206, states:

“As a defense to the claims of Frank McGibboney, . . . and Jackie L. Hamilton, it is contended by the defendants that Frank McGibboney was guilty of negligence which was a proximate cause of his own damages, and that Ms negligence was chargeable to the other plaintiffs.”

The trial court struck the above paragraph and substituted the following:

“As a defense to the claims of plaintiffs defendants plead contributory negligence on the part of plaintiffs ’ driver. ’ ’

The Arkansas Model Instructions were adopted by a per curiam order of this court on April 19, 1965 — the order is copied inside the front cover of the book — and since that time appeals to this-court involving automobile cases have been materially reduced. The committee on model instructions has worded each instruction so that it may be read in conjunction with all other instructions without the necessity of any definitions other than those included therein. However, we must note that the instruction here was not offered by appellants in the exact form set out in the book, hut that it had added thereto the italicized words with reference to the imputed liability of the passengers in the McGibboney vehicle. Since there was no testimony to warrant an instruction on imputed negligence of the passengers in the McGibboney vehicle, the trial court did not err in refusing to give it as requested. Furthermore, the record shows that, in his oral statement of the case to the jury, the trial, court stated the issues in the almost identical language of A.M.I. 206, and that an interrogatory was submitted to the 'jury upon the “negligence” of McGib-boney. Under these circumstances, although we would have preferred the exact language of A.M.I. 206, we are unable to say that the use of the phrase “contributory negligence” amounted to a reversible error.

Affirmed.

Harris, C. J. and BrowN, J., dissent.

Lyle BrowN, 7 ?tice,

dissenting. I would reverse as to the judgment iavoring Jackie L. Hamilton. Four gruesome colored pictures, taken shortly after the accident and when she was unconscious, were admitted in evidence. Substantial portions of her face were caked with blood. Two of the four exhibits are identical. All four pictures are very similar. The trial judge admitted the exhibits were inflammatory but ruled they were not prejudicial. They were shown to the jury on a projector.

The trial court concededly had wide latitude in determining the admissibility of the pictures. Had it admitted one and rejected the others we might well have a different situation. But the four inflammatory pictures of such striking similarity served no legitimate, purpose, the inescapable result being that fuel was added to the flame of sympathy, and prejudice was certain to follow.

It is my decided view that the trial court abused its discretion.

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