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

text:
    Sidney THOM v. John M. GEYER
    73-46
    497 S.W. 2d 689
    Opinion delivered June 25, 1973
    [Rehearing denied August 27, 1973.]

      James R. Howard, for appellant.

      Willis V. Lewis, for appellee.
   George Rose Smith, Justice.

The appellant, Sidney Thom, as the record owner of a dwelling house in Little Rock, brought this action in unlawful detainer to recover possession from his tenant, the appellee John M. Geyer. By counterclaim Geyer asserted the existence of an oral agreement by which he was entitled to purchase the property from Thom for the amount of money that Thom had spent in acquiring it. The case was transferred to equity. The chancellor, apparently without taking into consideration Geyer’s burden of proving the asserted oral contract by clear and convincing evidence, entered a decree permitting Geyer to purchase the property within 60 days for $12,107.10. We find it necessary to reverse the decree, because Geyer’s proof falls short of the standard that is required in a case of this kind.

For many years Geyer owned the property and occupied it as his home. In 1968, however, Geyer suffered business losses, became insolvent, and lost the property by foreclosure to his mortgagee, Southwest Factoring Corporation. Geyer continued to occupy the property, paying rent to Southwest.

Southwest decided to liquidate its business and offered to resell the property to Geyer for $9,000 if he could arrange the financing. The property had been appraised at $14,650 by a federal agency. Thom, who was a stranger to Geyer, was in the mortgage-banking business. Geyer saw one of Thom’s advertisements and applied to him for a loan. Thom investigated Geyer’s credit rating and found it to be so poor that no loan could be arranged.

From this point forward the testimony is in sharp dispute. Thom testified that he agreed to, and did, purchase the property from Southwest for $9,000, with Geyer to continue in possession as a tenant. Thom was to hold the property for six months, as a long-term capital investment, unless Geyer bought it during that period at a reasonable profit to Thom. At the expiration of the six months Thom would be free to put the house on the open market if Geyer had not repurchased it.

On the other hand, Geyer testified that Southwest made a special concession to him in agreeing to sell the property to Thom for only $9,000. According to Geyer, he and Thom orally agreed that Geyer would occupy the property as a tenant and be allowed a full year in which to repurchase the property from Thom for the amount of money that Thom had invested in the property, plus a profit to Thom of $1,000. Geyer had occupied the house for almost 15 months after Thom’s purchase when this action in unlawful detainer was filed.

The governing principles of law are clear. Under the statute of frauds an oral contract for the purchase of land is unenforceable unless some exception to the statute is shown. The only exceptions that might apply here are these:

First: In some instances the buyer’s possession of the property amounts to part performance of the contract. That rule is inapplicable here, because continued occupancy by one who was already in possession as a tenant does not amount to part performance. Rolfe v. Johnson, 217 Ark. 14, 228 S.W. 2d 482 (1950).

Second: A verbal agreement by which one person agrees to bid in another’s land at a judicial sale and resell it to him will be enforced if it would be a fraud to permit the purchaser to repudiate his promise. Coleman v. Wegman, 172 Ark. 132, 288 S.W. 376 (1926); Restatement, Restitution, § 181 (1937). Here, however, Thom did not buy the property until long after the judicial sale to Southwest. Moreover, the Coleman case holds that such an agreement must be proved by clear and convincing evidence. That standard of proof, as we shall see, was hot met here.

Third: Although a grantee’s oral promise to hold the land for a third person is unenforceable, a constructive trust will be imposed if it is shown by clear and convincing proof that the parties were in a confidential relation or that the grantee’s promise was intentionally fraudulent, having been made with no intention of performing it. Robertson v. Robertson, 229 Ark. 649, 317 S.W. 2d 272 (1958). Here no confidential relation existed.

Thus Geyer had the burden of proving by clear and convincing evidence that Thom made an intentionally and deliberately false promise to hold the land for Geyer. Upon the record before us that burden was not sustained. In fact, the proof may even preponderate slightly in Thom’s favor.

The principal witnesses were the two interested parties. Thom testified positively that Geyer’s right to repurchase was to continue for only six months. The capital gains aspect of the transaction provides a reasonable basis for that limitation. Furthermore, about nine months after the making of the oral agreement, Thom wrote a letter to Geyer in which Thom said that he was giving Geyer an extension of time within which to vacate the premises. Such an extension would have been unnecessary if the agreement had actually been for a year instead of for six months. It does not appear that Geyer disputed Thom’s statement, which accordingly provides corroboration of Thom’s version of the agreement.

Geyer’s testimony not only lacks similar corroboration but also falls short of establishing deliberate fraud on Thom’s part. To some extent Geyer’s testimony is contradicted by his own pleadings. That is, his counterclaim made no reference to the $1,000 profit that he testified about. Instead, that pleading asserted that Thom agreed that “the rent would be sufficient interest on his money” — an assertion not made by Geyer on the witness stand. Finally, Geyer’s testimony was at times so vague and hesitant, with statements that Thom’s profit was to be “$1,000 more or less,” that the chancellor intervened at one point and questioned Geyer closely about the precise terms of the agreement. There is actually hardly any indication of the type of fraud on Thom’s part that would have to be shown for Geyer to prevail. Certainly that kind of dishonesty was not proved by clear and convinding evidence.

Reversed.

Fogleman, J., concurs. Brown and Holt, JJ., not participating.

John A. Fogleman, Justice,

concurring. I concur because I think the decree was clearly against the preponderance of the evidence.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    John Franklin SAIN Jr. v. Doris M. (SAIN) SMITH
    73-63
    495 S.W. 2d 865
    Opinion delivered June 25, 1973

      Ponder ér Lingo, for appellant.

      Penix & Penix and Hartman Hotz, for appellee.
   Lyle Brown, Justice.

This appeal challenges as excessive a monthly allowance of $500 per month for the support of a sixteen year old daughter.

In 1972 Doris Sain (now Smith) was granted a divorce from John Sain, Jr. The couple are the parents of four children, John III, Sherrill, Randy and Rhonda. The first two had reached their majority at the time of the divorce; Randy and Ronda are still minors. Custody of Randy was given to appellant John Sain, and custody of Ronda was given to appellee. The decree directed that appellant support Ronda but no amount was fixed. Five months after the divorce appellee petitioned that appellant be required to pay $500 per month for the support of Ronda. The court directed appellant to pay that amount each month into the registry of the court for Ronda’s support. This appeal followed.

Appellee itemized monthly expenses which she said were directly incurred by her for the support of Ronda, totaling $597.33. In addition to what might be called usual expenses there were included such items as car payments and upkeep therefor, summer vacation and private telephone. Additionally, appellee itemized the average monthly household expenses and allocated one-third thereof to Ronda, the average being $259.32. The items included household repairs, furniture and repairs, taxes, insurance and utilities. Although it is not specifically stated by the chancellor, we gather that the court did not consider the additional items as being allowable. This is because tl >se expenses would have remained substantially the same irrespective of Ronda’s presence in the household.

Appellant did not testify. According to appellee’s testimony appellant receives an annual salary of $22,500, a liberal expense allowance, a bonus, and a baseball pension of approximately $1200 per month. The two boys are in school in Jonesboro and the older daughter is attending school in Chicago. Appellant is supporting all three children. The two boys each have an automobile given them by appellant.

If the father is financially able, the child is entitled to such support as will sustain the manner and style of living to which she was accustomed. Riegler v. Riegler, 246 Ark. 434, 438 S.W. 2d 468 (1969). “In addition to the actual needs of the child, a father has the legal duty to give his child those advantages which are reasonable considering his financial condition and his position in society.” 24 Am. Jur. 2d, Divorce and Separation, § 839.

Considering appellant’s earnings, the station in life, and the family’s customary manner and style of living, we are unable to say that the chancellor abused his latitude of discretion, or that his findings are against the preponderance of the evidence.

Affirmed.

Byrd and Jones, JJ., dissent. Justice Byrd would reduce the monthly allowance to $250. Justice Jones would eliminate the automobile allowances.


author: John A. Fogleman, Justice.

text:
    Dave UMHOLTZ v. Imogene ALLEN, Executrix of the Estate of Addie M. UMHOLTZ, Deceased
    73-32
    495 S.W. 2d 874
    Opinion delivered June 25, 1973

      Yates & Turner, for appellant.
    No brief for appellee.
   John A. Fogleman, Justice.

Appellant seeks reversal of a judgment denying his claim against the estate of his wife, stating that the only issue on appeal is the question of ownership of certain cattle, a one-half interest in which was claimed as an asset of his wife’s estate, and his right to remain on land on which he had been living for some 30, years. We find it necessary to affirm this case under Rule 9 of the rules of this , court. We have always taken action such as this with extreme reluctance and only recently amended this rule in an effort to alleviate the harshness of the rule as it theretofore existed. We amended Rule 9(e), effective January 1, 1973, to provide, among other things, the following:

(2) Whether or not the appellee has called attention to deficiencies in the appellant’s abstract, the court may treat the question when the case is submitted on its merits. If die court finds the abstract to be flagrantly deficient, or to involve an unreasonable or unjust delay in the disposition of the appeal, the judgment or decree may be affirmed for noncompliance with the Rule. If the court considers that action to be unduly harsh, the appellant’s attorney may be allowed time to reprint his briéf, at his own expense, to conform to Rule 9(d). Mere modifications of the original brief, as by interlineation, will not be accepted by the Clerk. Upon the filing of such a substituted abstract and brief by the appellant, the appellee will be afforded an opportunity to revise or supplement his brief, at the expense of the appellant or his counsel, as the court may direct.

Appellee, in compliance with Rule 10, advised that she would not file a brief, but pointed out that appellant’s brief was not in compliance with Rule 9. Appellee elected not to supplement the abstract for economic reasons. We find the deficiencies in this case to be of the type described in Rule 9(e)(2), recited above.

Material portions of the record were not abstracted. The five-line abstract of the two-page will does not mention a bequest to appellant. Appellant’s claim, upon which he seems to rely as a basis for the litigation, is abstracted only by stating that appellant claimed $3,499.73 expended for care of deceased during her last illness. This claim consists of 11 items, none of which is shown in the abstract, but the cattle are not mentioned in the claim. Appellee’s two-page “Objection to Claim and Petition for Discovery of Assets” is treated by the statement that the personal representative denies appellant’s claim. Appellee’s four-page separate “Petition for Discovery of Assets and for Orders Concerning Payment of Claims and for other Matters in Controversy,” though pertinent, is not even mentioned, although appellant does state in his abstract that he denied the matter set out in that petition and submitted that his claim should be granted under the circumstances surrounding his marriage and living with appellee’s decedent. The six-page opinion of the probate judge containing comprehensive findings of fact and conclusions of law pertinent to this appeal and reciting that several hearings had been had pertaining to the issues is treated by the simple statement that the court denied appellant’s claim for moneys expended and for the cattle which were on the farm at the time of the death of the decedent. We cannot tell, from the abstract, how the ownership of the cattle became an issue. Nowhere is it disclosed that appellant’s one-half interest in the cattle was acknowledged.

None of the exhibits such as tax receipts, assessments, checks and other matters relevant on the issue of ownership of cattle is abstracted. Testimony of both appellant and a son of appellee’s decedent relating to a separation of the parties and their division of cattle at that time is totally omitted.

The burden was on the appellant to demonstrate error in the probate judge’s findings and judgment. City of Little Rock v. Sunray DX Oil Company, 244 Ark. 528, 425 S.W. 2d 722; Poindexter v. Cole, 239 Ark. 471, 389 S.W. 2d 869. On the basis of the portions of the record abstracted, appellant has failed to carry his burden, and we would affirm on that basis, even if we disregarded the obvious failure to comply with Rule 9.


author: J. Fred Jones, Justice. John A. Fogleman, Justice,

text:
    ARKANSAS STATE HIGHWAY COMMISSION v. W. F. LEMLEY et al
    73-1
    497 S.W. 2d 680
    Opinion delivered June 25, 1973
    [Rehearing denied August 27, 1973.]

      Thomas B. Keys and James N. Dowell, for appellant.

      Gordon ér Gordon and Williams & Gardner, for appellees.
   J. Fred Jones, Justice.

This is the fourth appeal of this case brought by the Arkansas State Highway Commission from judgments rendered in the Conway County Circuit Court in favor of W. F. Lemley, et al, growing out of condemnation proceedings brought by the Highway Commission in connection with the condemnation of rights-of-way for Interstate 40 through Conway County.

The appellees, Lemley and Jackson, owned 160 acres of land consisting of three contiguous 40’s running north and south in Section 33 and a separate 40 acres in Section 34 lying east of the north 40 in Section 33, but separated from the three 40’s by an intervening 40 acres owned by a Mr. Robinson. As pointed out on the first appeal reported in 247 Ark. 201, 444 S.W. 2d 692, the Interstate 40 taking crossed the land in Section 33 from the southeast to the northwest leaving 40.8 acres south of the Interstate and 60.48 acres north of the Interstate. The 40.8 acres remaining south of the Interstate had highway frontage on a blacktop highway as before the taking, but the 60.48 acres north of the Interstate was left without public highway access. The north 40 in Section 33 is timberland and the 40 acre tract in Section 34 is also timberland. The first case was tried on the theory that the entire tract, including the 40 acres in Section 34, constituted a unit of use for agricultural purposes with access to the 40 acre tract in Section 34 being provided by an easement between the north 40 in Section 33 and the 40 acres in Section 34 over the intervening 40 belonging to Robinson. The trial court in that case submitted to the jury the issue of whether or not the lands in Section 33 and Section 34 constituted a unit in use and denied the Highway Commission’s requested instruction directing the jury to disregard any damage to land in Section 34. We held in that case that the evidence was woefully lacking in proof as to unity of use between the land in Section 33 and the 40 acres in Section 34. We held, however, that the trial court did not err in refusing to give the Highway Commission’s requested instruction since there was evidence from which the jury might have found that Lemley and Jackson had access to their land in Section 34 by the easement mentioned in evidence and since it was conceded there was no other public ingress and egress to and from the property.

Considerable argument in the case at bar is directed to “the law of the case” but in 5 Am. Jur. 2d, § 755, entitled “Decision on question of fact,” is found a statement as follows:

“The general principle seems to be that the doctrine of the law of the case applies only to determinations of questions of law and not to questions of fact. It has been said that the doctrine of the law of the case applies to all questions of law identical with those on the former appeal, and on the same facts and to the same questions only, that the doctrine is rarely, and in a very limited class of cases, applied to matters of evidence as distinguished from rulings of law, and that a decision on appeal on a question of fact does not generally become the ,law of the case, nor estop the parties on a second trial from showing the true state of facts.”

At the first trial of this case judgment was entered on a jury verdict in the amount of $13,000 and we reversed because of erroneous instruction permitting the jury to take into consideration items not a part of the market value such as circuity of travel between the two tracts and the cost of acquiring new access. The pertinent portion of the erroneous instruction in that case was as follows:

“ 'What you are to determine in this case is what financial loss the defendants have sustained in this case by the taking of their lands; and if you do so find a financial loss, by a preponderance of the evidence, you are to return a verdict for just compensation for this taking, in which verdict the indemnity must be real, substantial, and full.
Less would be unjust to the landowners; more would be unjust to the public.’ ” (Emphasis supplied by this court in the opinion).

On the second appearance of the case, 250 Ark. 186, 464 S.W. 2d 605, the jury verdict was for $12,000 and we reversed for error in the trial court’s refusal to strike that portion of witness Barnes’ testimony concerning the land valued as a unit. Mr. Barnes had arrived at a before value of $50,000 for the 120 acre tract and an after value of $18,000. He stated that he did not place a separate value on the 40.8 lying south and west of the Interstate in arriving at his after value. He considered it as one parcel before the taking and as one unit after the taking and on the whole 107.28 acres he ascribed damages in the amount of $170 per acre in round figures. In that opinion we said:

“We agree with appellant that the trial court should have struck that portion of Barnes’ testimony relating to the damage to the remaining lands. Ordinarily noncontiguous lands cannot be valued as a unit. The exception is upon a showing of a unity of use. See Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S.W. 375 (1908).”

On the third appeal to this court, 252 Ark. 549, 479 S.W. 2d 855, the jury awarded damages in the amount of $14,500 and we reversed because the trial court refused to strike a part of the testimony of Mr. Jackson, one of the owners who testified as such and also as an expert on land appraisals. Mr. Jackson testified on redirect examination, pertaining to comparable sales in an attempt to establish the market value of the land involved, that the City of Morrilton had paid him $400 an acre for some land for right-of-way purposes approximately 3/4 of a mile from the property in litigation. We held that this testimony was clearly contrary to the established rule which we reiterated to be as follows:

“ ‘The rule is firmly established that the price paid by a condemnor is inadmissible in establishing the fair market value of other lands acquired in a condemnation proceeding. Younts v. Public Service Co. of Ark., 179 Ark. 695, 17 S.W. 2d 886 (1929).’ ”

At the last trial of this case from which comes this appeal, the jury returned a verdict of $15,000 and judgment was entered thereon. Mr. Jackson, one of the owners, testified that just compensation amounted to $22,000 and his expert witness, C. V. Barnes, testified that just compensation should be in the amount of $13,000. W. E. Hayes and Charley Scott testified as experts for the Commission and they testified to just compensation in the amounts of $5,500 and $5,250 respectively.

The appellant designates 16 points upon which it relies for reversal but only argues 10 of them, the last five having to do with the expert testimony of C. V. Barnes. We feel that it would be a waste of judicial effort to comment on all the points raised by the appellant, many of which were considered on the prior appeals, but we conclude that we must again reverse this case because of the error assigned under appellant’s point six as follows:

“The trial court erred in allowing Mr. Barnes to testify as to an income valuation of the property based upon his observation of the type soil on the property, his non-expert opinion of production projected from USDA county reports, capitalization of a hypothetical crop rent by a hypothetical investment yield.”

Mr. Jackson, one of the owners, testified that prior to the taking the market value of both tracts of land was $40,000 and its highest and best use was for agricultural purposes. He valued the three 40’s in Section 33 at $32,000 and the 40 acre tract in Section 34 at $8,000. He testified that after the taking the 120 acres in Section 33 was worth only $15,000 and the 40 acre tract in Section 34 was worth only $3,000, leaving a difference in value of both tracts at $22,000 as total damage and just compensation. He testified that the south 40 and part of the middle 40 in Section 33 had been cleared and part of the middle 40 had been planted in beans, but that the north 40 in Section 33 was in woodland as was the 40 acre tract in Section 34. He said no clearing had been done since the land was purchased in 1945. He placed a before taking value of $300 per acre on the south and middle 40’s in Section 33 and $200 per acre on the north 40 in Section 33 and the 40 acre tract in Section 34. After the taking he valued that portion south of the Interstate at $200 per acre and that portion of the middle 40 north of the Interstate at $150 per acre. He said that the north 40 in Section 33 was only worth $75 per acre after the taking, and the 40 acre tract in Section 34 was reduced in value from $8,000 to $3,000. This valuation testimony to say the least is confusing.

In the second appeal of this case we said:

"Ordinarily noncontiguous lands cannot be valued as a unit. The exception is upon a showing of a unity of use. See Kansas City So. Ry. Co. v. Boles, 88 Ark. 533, 115 S.W. 375 (1908).”

It appears that this case was not tried the last time on the “unity of use” theory so it is rather difficult to understand how that portion of the property south of the Interstate, which still has the same access to highway frontage, has been reduced in value from $300 to $200 per acre. As to the property north of the Interstate, it is difficult to understand how the middle 40 could have been reduced to one-half its original value while the north timbered 40 in Section 33 is reduced to 37.5% of its original value, and the 40 acres of timberland in Section 34 is reduced to only 30.75% of its original value.

We find it unnecessary, however, to attempt to rationalize this testimony because we find it necessary to again reverse this case because of the highly speculative nature of expert witness Barnes’ testimony in arriving at his conclusions as to the difference in the before and after market values of the lands involved. Mr. Barnes testified that in his opinion the fair market value of the contiguous 40’s constituting the 120 acre tract in Section 33 prior to the taking was $30,000 and the fair market value of the 40 in Section 34 was $6,000. He said that after the taking the remaining 107.28 acres in Section 33 had a value of $18,200 and the 40 acre tract in Section 34 was reduced in value to $4,800. He testified on direct examination that all. the soil on the property in his opinion is suitable for row crops and specifically for soybeans. He said that the land north of the Interstate would be somewhat more productive than the sandy clay land on the southern part. He said he had had experience in estimating production and yield on soybean land and that he thinks this land was probably 30 bushel per acre land, and that he thinks one could get a little higher yield off the northern part of the property as compared to the extreme southern part. He said that the market price on soybeans at the time of the taking was about $2.50 per bushel.

On cross-examination Mr. Barnes testified that the land in Section 33 comprised one agricultural unit and that his before taking value on this property was based on an agricultural unit, owner occupied. He said the 40 acres in Section 34 was entirely in woods and the North 40 acres in the 120 acre tract was entirely in woods and that it had been that way ever since it was purchased back in 1945. He said that the highest and best use would be to clear the north 40 of the 120 and the other separate 40 in Section 34 and devote it all to. agricultural use. Mr. Barnes testified that he kept a “black book” on land sales in the area; that it contained information on approximately 50 sales of land in the area and that he based his value opinion, partially on a study of all of these 50 transactions. He said he came across some strictly wooded land sales in the area and that he found such sales to be from $45 an acre up. He said he would have to refer to his map to be specific but thinks the woodland sales would range from $40 to $100 per acre.

Mr. Barnes was questioned on cross-examination concerning specific sales of similar land in the area (comparable sales) in arriving at his opinion as to the market value of the land involved. He again said he hád market data on in excess 50 transactions that were made in the area and that he based his opinion on a study he made of the 50 transactions. He said that among the 50 transactions he found sales of woodlands ranging in value from $45 an acre to more than $100 per acre. He then testified as follows:

“Q. But specifically, what sales did you use Mr. Barnes?
A. I have told you that specifically the sales I used was a study of all of the sales that are in this black book here which comprise about fifty sales.
Q. Well, did you find any sales of woodland in this particular area?
A. Well, now, you keep talking about woodland, but just remember we’re not talking about a piece of land that’s strictly woodland.
Q. The-
A. We’re talking about land that has improvements on it, it’s fenced and cross fenced, has been in cultivation, was in cultivation—
Q. You put $150.00 per acre on that forty acres in Section 34? Didn’t you?
A. Yes, sir, I sure did.
Q. It’s strictly woodland, isn’t it?
A. In it’s present use. It’s not strictly woodland, because the highest and best use for it is doing with it what they’ve done on three sides of it, clear it up and put it in coltivation.
Q. That’s all it’s ever been used for, isn’t it?
A. Sir?
Q. That’s all it’s ever been used for, isn’t it?
A. I can’t tell you, bécause; I’ve only been familiar with it about the last ten years. I don’t know what the Indians did with it before that.
Q. You have no specific sales you can relate to me that you used as a basis for your woodland values, isn’t this correct?
A. I cannot cite you a specific sale with respect to woodland only.”

Mr. Barnes then referred to one sale on the opposite side of Morrilton about six miles from the property involved in this case. He said part of it was hill land and part open land used for pasture, and that it sold for $290 per acre. He then testified that Mr. Carruthers paid $350 per acre for some land approximately two years after the date of taking. He said an overpass to the highway was east of the Carruthers property; that a road runs east of the property and directly into the overpass. Mr. Barnes indicated that his “black book” contained timberland sales data in the area where the market value was from $45 to better than $100, but Mr. Barnes simply avoided discussing comparability of any of the sales in his “black book” with the land involved in this case. Mr. Barnes continued his testimony as follows:

“Q. All right, sir. Now were there any other sales that you used as a basis for your value of $300.00 per acre value, other than the one that occurred some two years after the date of the taking?
A. Yes, sir. I used all fifty of these sales.
Q. You used all fifty of these sales?
A. Yes, sir.
Q. Now, particularly, which one do you think is most comparable to give you a value of $300.00 per acre on this property?
A. Well, this is — this ‘more comparable’ bit is something that I don’t know where it came from—
Q. You don’t know—
A. I think it’s something that’s been adopted — I don’t know who adopted it, but the Bible that the appraisal industry uses, which is published by the American Institute of Real Estate Appraisers, doesn’t talk about ‘comparable sales’ approach. They talk about ‘market data’ approach, and in analyzing market data, you analyzing market data, you analyze everything. ...”

The record as to Mr. Barnes’ testimony on redirect examination, which we conclude should have been stricken, appears as follows:

“Q. Mr. Barnes, do you have a slide rule with, you?
A. Yes, sir.
Q. Do you try often times to justify your market data approach?
A. Yes, sir, one of the other approaches is what is known as the income approach.
MR. BROCK: We object. This is not proper rebuttal.
THE COURT: That may be true, but—
MR. BROCK: He went into that in chief, and I didn’t touch on that on cross examination.
MR. GORDON: He questioned his appraisal.
MR. BROCK: Yesi sir, I—
THE COURT: I’m going to let him go into it.
MR. BROCK: Please note our exceptions.
BY MR. GORDON:
Q. Do you often justify your appraisal in your market data approach appraisal by other methods?
A. One approach is used to check your judgment on the other, approach.
Q. Yes sir, Well, in this particular case you said in your opinion this land was soybean land and would produce thirty bushels to the acre; and on September 29, 1966, soybeans were bringing about $2,50 a bushel?
A. Yes, sir.
Q. How do you use that — Illustrate to the jury how you use that and come out with a figure a landowner could pay for a piece of property and get a reasonable return on his investment.
MR. BROCK: Your Honor, I would object to him answering that unless he’s got a history and a basis for it.
THE COURT: Let’s back up and get your history of the production and further qualify him.
MR. GORDON: That is my qualification. He testified that the land would produce thirty bushels to the acre, and that beans were selling for $2.50 a bushel in 1966. I want him to tell me what the purchaser could pay with that kind of land and get, a reasonable return on his investment. What could he pay per acre?
THE COURT: Is that part of the testimony correct, Mr. Barnes?
A. Yes, sir.
THE COURT: Do you know with reference to the thirty bushels per acre and the $2.50 per bushel?
A. Judge, let me say this: I know that in 1966 the approximate range of soybean price was $2.50 per bushel. As to the specific productivity of the land itself, it’s a matter of judgment, because even if I had, which I do not have, the historical production records of this farm, those are not indicative for appraisal purposes, becaúse the productivity on any given farm is dependent to a great extent upon the person who farms it; and he might not have exercised good management practices; and, therefore, did not have a good yield, or he might have exercised better than average management practices and had a higher yield average. But based on my observation of the type soil that’s out there and knowing from having investigated the United States Department of Agriculture reports on soybeans production in this county in 1966, I am of the opinion that this land, under average conditions, could be expected to produce thirty bushels per acre.
THE COURT: All right. Go ahead.
MR. BROCK: Please note our exceptions.
BY MR. GORDON:
Q. Mr. Jackson testified that it did produce that on an overall basis?
A. Yes, sir. I believe that’s correct.
Q. Now, would you go ahead and compute that for me, please sir?
A. Well, if you produce thirty bushel per acre, and soybeans are $2.50 a bushel, the gross yield per acre would be $75.00 per acre. Land in this county— let’s assume that it’s leased out. Land rent in this county is based on basically one-fourth crop rent. So, if you take one-fourth of $75.00, you come up with a figure, I think, of $18.75.
Q. Per acre?
A. Per acre, which would be the crop rent that was paid for the use of the land. And in 1966 6% was considered an adequate yield on investment in land, and if you capitalize that figure at 6%, you come out with $312.50 per acre.”

The difference in the fair, market values of the lands involved, immediately before and immediately after the taking, was all that was before the trial court and jury in this case. Mr. Barnes said that there were sales of timberland in the area for $45 to better than $100 per acre, yet he considers the north 40 timberland in . Section 33 as well as the 40 Umberland in Section 34 as an agricultural unit, and arrives at its before and after value as of the date of taking by assuming the land would produce 30 bushels of soybeans per acre which would sell for $2.50 per bushel, bringing a gross income of $75.00 per acre. He then assumed a one-fourth crop rent of $18.75 capitalized at 6%, giving a result of $312.50 per acre.

Mr. Barnes did not seem to consider any of this land as timberland. He considered its market value from “the market data approach” as agricultural land, planted in soybeans with the rows running north and south. The north 40 in Section 33 and the 40 acres in Section 34 were not in cultivation on the date of taking and never had been. Both areas were in timber before the taking and remained in timber after the taking. Mr. Barnes did not mention the type of timber on the land or its market value. He refused to discuss any particular timberland sales in his “black book” but did use 30 bushel per acre beanland, with a market value of $2.50 per bushel on a one-fourth rental basis capitalized at 6% to reach the amount of $312.50 per acre one could afford to pay for land.

We are of the opinion that Mr. Barnes’ testimony in this regard is entirely too speculative in fixing the before and after value of the lands here involved, and that this portion of his testimony should have been stricken.

Reversed and remanded.

Brown, Fogleman and Holt, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I find it necessary to dissent, for a second time, from a reversal of this case and from its fourth remand for a fifth trial to determine just compensation for a taking on September 29, 1966. The four verdicts by different juries have fixed the landowner’s recovery at $13,000, $12,000, $14,500 and $15,000. See 247 Ark. 201, 444 S.W. 2d 692; 250 Ark. 186, 464 S.W. 2d 605; 252 Ark. 549, 479 S.W. 2d 855. We held on the first appeal that the testimony then before the court was insufficient to show a unity of use for farming purposes between the 120 acres in Section 33 and the 40 acres of timberland in Section 34. No effort has been made in this fourth trial to recover compensation based on treatment of the non-contiguous tracts as a unit. We recognized in Lemley I that there was evidence to present a jury question on the right to compensation for deprivation of access to the tract in Section 34. I submit that on the basis of the same evidence (and the evidence was not materially different) the existence of a jury question as to whether there were compensable damages for deprivation of access is the law of the case. Bailey v. Stewart, 238 Ark. 666, 385 S.W. 2d 20; Ford Motor Company v. Fish, 233 Ark. 634, 346 S.W. 2d 469, and cases cited therein.

In Lemley II this court ruled adversely to appellant on its points 3, 6 and 8, upon the basis that our holding on the first appeal had become the law of the case. They were:

3. The trial court erred in refusing to strike that portion of Mr. Jackson’s testimony as to the east 40 acres of land on the basis that this is a separate tract of land; that there was no taking from this portion of land; and that any impairment of access to a separate tract would not be compensable.
6. The trial court erred in refusing to strike Mr. Barnes’ testimony with respect to damages to the separate tract.
8. The trial court erred in giving appellees’ requested instructions A and B.

Barnes’ testimony as to damages to the 40-acre tract at the third trial is not materially different from that given by him on the second trial. Both times he valued the 40 acres at $4,800 before the taking and $1,200 after. This court found error only in Barnes’ means of arriving at the value of remaining lands in the 120-acre tract. He did not use the disapproved means of valuing the residual tracts from the sundered 120-acre tract on this occasion. The reversal in the second appeal was not based in any respect on application of the language quoted in the majority opinion to testimony relating to the 40-acre tract. The only material difference in Barnes’ testimony at the last trial was his reliance upon what he called the “market data” approach and his checking his opinion by an income approach based upon estimated soybean production.

The instructions complained of in Lemley II were those which submitted to the jury the questions whether the 40 acres were damaged by destruction or impairment of access, and if so, the amount of damage measured by the difference in value before and after the taking, giving consideration to the uses to which the land was put or for which it was reasonably suitable. It should be noted that this court also applied the law of the case on the second appeal in rejecting appellant’s contention that the testimony of Judge Tom Scott, also a witness at the fourth trial, as to the cost of restoration of access should not have been admitted.

One premise of my present dissent is the same as I expressed in Lemley II. On that appeal, appellant challenged the action of the trial court in refusing to strike the landowner’s before-the-taking value testimony and his resulting damage testimony, arguing that he gave no substantial evidence upon which to predicate his land values. Virtually the same attack is made on virtually the same testimony on this appeal. In the prior appeal, we found no merit in appellant’s contention. Consequently, attempted rationalization of the testimony of Jackson is not only unnecessary, it is precluded. Furthermore, Jackson did not rely upon his sales to a potential condemnor, as he he did in Lemley III, as a basis of his value testimony. In my dissent in Lemley II, I pointed out that no infirmities were found in Jackson’s testimony fixing the difference in value at $22,000 and that his testimony afforded support to the jury verdict without regard to Barnes’ testimony, citing Arkansas State Highway Commission v. Stallings, 248 Ark. 1207, 455 S.W. 2d 874, and Arkansas State Highway Commission v. Ormond, 247 Ark. 867, 448 S.W. 2d 354. Even though we found the landowner’s testimony in Stallings to be vulnerable to appellant’s attack, we found the testimony of appellant’s only other value witness afforded substantial evidentiary support for the jury verdict and affirmed the judgment. In Ormond, we held that the landowner’s improper value testimony was manifestly not prejudicial when the verdict was substantially less than the assessment of damages for the taking made by the landowner’s expert witness. We said that the error in not striking Ormond’s testimony obviously did not enhance the award and that the verdict was less than the amount for which there was substantial evidentiary support. The language we used in Arkansas State Highway Commission v. Rowe, 252 Ark. 59, 477 S.W. 2d 486, where the jury verdict was sustained by a unanimous court is so appropriate here that I take the liberty of quoting:

We also have cases where the substantial nature of the testimony of a particular witness has been attacked, and we have agreed that the evidence complained of was not substantial, but we have then pointed out the testimony of other witnesses that did meet the test of substantiality, fully supported the verdict, and affirmed the judgment. Arkansas State Highway Commission v. Coffman et al., 247 Ark. 302, 445 S.W. 2d 92.

Here it seems obvious to me that Barnes’ testimony fixing the amount of compensation at $13,000 did nothing to enhance the award of $15,000 and that Jackson’s figure of $22,000 furnished ample evidentiary support for that verdict. Manifestly, any error in admitting, or failing to strike, Barnes’ testimony was not prejudicial.

A further premise for my dissent is my disagreement with the majority as to the admissibility and substantiality of the Barnes testimony. I really don’t understand how the majority can say that the matter upon which its opinion is based was argued by appellant. The only argument advanced by appellant is that comparable sales are indicators of value where there are no sales of identical property and that the opinion of this expert should be rejected because it was not substantiated. If the majority is basing its position on this argument, then it seems that its opinion must be construed as saying that the testimony of Barnes was not substantial or that it should have been stricken because it was not supported by testimony relating to comparable sales. If this is the case, then this jury verdict is a victim of the “comparable sale” syndrome which has stricken other verdicts. There are, and, I submit, will continue to be cases where there simply are no reajly comparable sales, and, of necessity, the opinion of a properly qualified expert must be admitted upon the basis of his familiarity with the property involved, its highest and best use, the real estate market generally and any factors which might influence the hypothetical willing buyer and willing seller in negotiating a selling price. We have recently held that it is not always necessary that the opinion of a qualified real estate expert be supported by comparable sales to be admissible or to constitute substantial evidence, at least where comparable sales are not to be found, particularly when the lands involved are unimproved and unproductive. Arkansas State Highway Commission v. Steen, 255 Ark. 908, 489 S.W. 2d 781.

Barnes’ -qualifications are not questioned by appellant, who omitted abstracting his testimony on that score on the premise that they were well known to this court. Barnes described the tracts in detail enumerating advantageous features and pointed out the various factors which made them less desirable after the taking than before. He described the character of the soil and the topography and expressed the opinion that all the lands were suitable for row crops, specifically soybeans. He stated that even though the 40-acre tract was woodland, its highest and best use was agricultural and that any informed purchaser would so consider it. He testified that there was no specific sale to which he could attribute specific similarity as a basis for valuation of the woodland on both tracts, but that he referred to “market data” he had accumulated on at least fifty transactions in the vicinity, and arrived at his value by a study of them. They included some woodland sales ranging from $45 per acre to more than $100 per acre prices. He refused to classify these lands as woodland, however, because he considered their highest and best use to be for agricultural crops, as the land on three sides of the 40-acre tract was being used. According to Barnes, his “market data” approach is recognized by the American Institute of Real Estate Appraisers, and is to be used when there is no really comparable sale.

Barnes’ income approach, condemned by the majority, was not the basis of his opinion at all. On redirect examination it was. shown that this approach was used only as a check on his appraisal based on the market data approach. Barnes had previously testified, apparently without objection, that the soil was capable of producing 30 bushels of soybeans per acre and that these beans were selling for $2.50 per bushel in 1966. Barnes himself acknowledged the weakness of this approach for appraisal purposes, but demonstrated that upon the basis of production of similar lands, income could be capitalized to show a value of $312.50 per acre. It stands to reason that a prospective purchaser would consider the factors mentioned by Barnes.

I humbly submit that the majority has not addressed itself to the arguments advanced on appeal, but has weighed the Barnes testimony rather than determining its admissibility or substantiality. Furthermore, it has not pointed out how appellant was prejudiced by the trial court’s failure to strike this testimony, and the verdict certainly has eliminated the presumption we usually indulge.

In my opinion, we have two adequate and appropriate bases to end the reruns of this case by affirming the current judgment.

I am authorized to state that Mr. Justice Brown and Mr. Justice Holt join in this dissent.


author: Frank Holt, Justice.

text:
    Daniel Lon GRAHAM v. STATE of Arkansas
    CR 73-61
    495 S.W. 2d 864
    Opinion delivered June 25, 1973

      John Lineberger and John Barry Baker, for appellant.

      Jim Guy Tucker, Atty. Gen., by: Charles A. Banks, Asst. Atty. Gen., for appellee.
   Frank Holt, Justice.

In Graham v. State, 253 Ark. 462, 486 S.W. 2d 678 (1972), we were “obliged to reduce appellant’s sentence” for his first degree murder conviction “from death to life , imprisonment as being the next highest available penalty.” We, also, remanded the case to the trial court for consideration as to whether such life sentence should run concurrently or consecutively with appellant’s prior life sentence “[s]ince the commitment to be issued by the trial court may affect appellant’s status as a prisoner. . . .” On this appeal, appellant contends the lower court erred in directing that his life sentences be served consecutively. We cannot agree.

The trial court considered, and rightfully so, the effect the consecutive sentences could have upon “appellant’s status as a prisoner.” Further, the question of whether two separate sentences should run concurrently or consecutively lies solely within the province of the trial court. Ark. Stat. Ann. § 43-2312 (1971 Supp.); Hayes v. State, 169 Ark. 883, 277 S.W. 36 (1925); Higgins v. State, 235 Ark. 153, 357 S.W. 2d 449 (1962).

Neither can we agree with appellant’s subordinate contention that the trial court erred in failing to direct that appellant’s money ($358) taken from him upon his arrest be returned. In the circumstances, we cannot say that the method employed by the trial court in directing the $358 be paid into the county treasury, in partial satisfaction of the costs (approximately $5,000) of appellant’s trial is prejudicial to appellant since the method he urges the court should have followed would achieve the same result.

Affirmed.


author: Carleton Harris, Chief Justice. John A. Fogleman, Justice,

text:
    Willie COOPER, Special Administrator of the Estate of Eddie James COOPER, Deceased v. DIESEL SERVICE, INC. and Chess WILLIAMS
    73-61
    496 S.W. 2d 383
    Opinion delivered July 2, 1973

      Ben McCourtney & Associates, by: Troy L. Henry, for appellant.

      Rieves & Rieves, by: Donald A. Forrest, for appellee.
   Carleton Harris, Chief Justice.

Eddie James Cooper, age six, drowned on May 13, 1972, in an artificially constructed pond located on property owned by appellees in Crittenden County, Arkansas. Appellant, Willie Cooper, as Special Administrator for the Estate of Eddie James, instituted suit against appellees alleging first that appellees were liable under the attractive nuisance doctrine, and second that the little boy’s death was due to negligence of appellees, i.e., the failure to exercise ordinary care. A demurrer was filed to the complaint asserting that the allegations were insufficient to constitute a cause of action, and this demurrer was sustained by the court. After the complaint was amended, another demurrer was filed which was also sustained, and the complaint dismissed. From the order of dismissal, appellant brings this appeal.

For reversal, it is first urged that it was error to dismiss appellant’s complaint on the basis that the attractive nuisance doctrine is not applicable to the facts as alleged by appellant. It is then asserted that it was error to dismiss the complaint for the reason that the alleged facts stated a cause of action of negligence against appellees. We proceed to discuss these points in the order listed.

The complaint alleged that for many years following construction of the pond, which covered approximately three or four acres, the appellees had allowed it to remain full of water and at the time of the drowning, appellees had negligently permitted the “pond to remain open, unfenced, unguarded and unprotected, without signs or warnings of any character.” It was further asserted that the decedent was allured and attracted onto the premises, his childish curiosity aroused, as other children of tender years had been previously allured and attracted, and that, being unaware of the hazards of going near said pond, stepped or fell into the water, and being unable to swim, drowned. The amended complaint further sets out specifically the allegations relied upon, and reads as follows:

“The pond dug out and constructed by said defendants was constructed in such a manner that on three sides, at the water’s edge, the bank and bottom of the pond sloped in a slight manner toward the center of the pond. Unknown to the deceased, the bank of the pond was formed on one side so that it extended downward at a very sharp angle so that only a few inches from the water’s edge the bank dropped downward sharply to the bottom of said pond, to a distance of approximately 12 feet. This deep drop-off, within a few inches of the water’s edge, was covered by the surface of the water alongisde the bank and was not ascertainable by the deceased or any child of such tender years. That the suddenness and sharpness that the bank dropped off at the particular point alongside the pond in which the deceased slipped or fell, constituted a hidden, unusual danger and hazard existing on said premises. That the general slope of the bank and bottom along the other areas of the pond where numerous children in the neighborhood, had, from time to time, swam, fished, and played in said pond would lead a child of the deceased’s age to be unaware of this sudden deep drop-off that existed only a few inches from the water’s edge and underneath the surface of the water.”

While this state recognizes the attractive nuisance doctrine, we unhesitatingly hold that this case does not fall within that doctrine. We have three cases in which the subject is rather thoroughly discussed. In Carmichael v. Little Rock Housing Authority, 227 Ark. 470, 299 S.W. 2d 198, we said:

“Although it is rejected by some courts, we adhere to the attractive nuisance doctrine or, as it is sometimes called, the ‘turntable doctrine’ in this state. Broadly stated, the doctrine embraces the proposition that one who maintains upon his premises a condition, instrumentality, machine, or other agency which is dangerous to children of tender years by reason of their inability to appreciate the peril therein, and which may reasonable be expected to attract children of tender years to the premises, is under a duty to exercise reasonable care to protect them against the dangers of the attraction. 38 Am. Jur., Negligence, Sec. 142.
“We have frequently approved the following statement by Judge Hughes, speaking for the court, in Brinkley Car Co. v. Cooper, 60 Ark. 545, 31 S.W. 154, 46 Am. St. Rep. 216: ‘The owner of land is not required to provide against remote and improbable injuries to children trespassing thereon. But he is liable for injuries to children trespassing upon his private grounds, when it is known to him that they are accustomed to go upon it, and that, from the peculiar nature, and exposed and open condition, of something thereon, which is attractive to children, he ought reasonably to anticipate such an injury to a child as that which actually occurs.’ See also, Foster v. Lusk, 129 Ark. 1, 194 S.W. 855, and cases there cited. The mere fact that a thing is attractive to children is not of itself a ground for invoking the attractive nuisance doctrine. Arkansas Valley Trust Co. v. McIlroy, 97 Ark. 160, 133 S.W. 816, 31 L.R.A. (N.S.) 1020.
“Although similar cases have frequently engaged the attention of other courts, we have never determined whether the attractive nuisance doctrine is applicable to a pond under a situation similar to that presented here. ‘The attractive nuisance doctrine generally is not applicable to bodies of water, artificial as well as natural, in the absence of some unusual condition or artificial feature other than the mere water and its location.’ 65 C.J.S., Negligence, Sec. 29 (12) j. The weight of authority in this country is to the effect that ponds, lakes, streams, reservoirs, and other bodies of water do not constitute an attractive nuisance in the absence of any unusual element of danger. See 56 Am. Jur., Waters, Sec. 436, where the text-writer further says: ‘In some cases, the view has been taken that the proprietor may be held liable where some additional or unusual element of danger is involved in the situation as where.the pond.or pool is in close proximity to a highway or a playground, or where it is located in an urban or densely populated community, but the weight of authority appears to hold to the contrary, except where the facts bring the case within the rule respecting pitfalls or hazards adjacent to highways. * * *
“Since water hazards exist everywhere, the tendency of a majority of the courts which recognize the attractive nuisance doctrine under other circumstances, is to refuse to apply it to permit recovery for the drowning of a child in a pond or other body of water unless it constitutes a trap or there is some other hidden inherent danger. Many cases to that effect are collected in an exhaustive annotation on the subject in 8 A.L.R. 2d 1259. (Citing numerous cases from nine different states).
“A variety of reasons have been assigned for the majority rule. First is the difficulty of placing any practical limitation upon such liability, which is also denied for the reason that the danger inherent in water in a pond is or should be obvious to a child. There is also a disinclination on the part of courts to shift the duty of caring for their children from the parents to the owners of such hazards. There is also the impracticability of guarding or fencing against a hazard of this kind. As the court said in Emond v. Kimberly-Clark Co., 159 Wis. 83, 149 N.W. 760: ‘The world cannot be made danger proof — especially to children. To require all natural or artificial streams or ponds so located as to endanger the safety of children to be fenced or guarded would in the ordinary settled community practically include all streams and ponds — be they in private parks or upon private soil, — for children are self-constituted licensees if not trespassers everywhere. And to construct a boy-proof fence at a reasonable cost would tax the inventive genius of an Edison.’ ”

In Jones v. Comer, 237 Ark. 500, 374 S.W. 2d 465, much of the language in Carmichael was repeated, and it was pointed out that if a pond constituted “a trap” or other “hidden inherent danger”, the attractive nuisance doctrine would apply. In the case before us, appellant argues that the fact that one side contained a drop downward to approximately twelve feet, instead of a gradual slope as was true on three sides, constituted a trap. We cannot agree for all bodies of water are deeper in some parts than in others. What is meant by a trap is pointed out in Brinkley Car Co. v. Cooper, supra, where a six-year-old child was scalded by walking into a pit containing hot water, the water being so completely covered, however, with pieces of bark, that the water could not even be seen.

Appellant also argues that the fact that the pond was artificially created distinguishes it from Jones v. Comer, supra, and Carmichael v. Little Rock Housing Authority, supra, but we do not attach any weight to this distinction. All of these ponds were still nothing but bodies of water containing no special enticements to children such as a raft, a slide, swings over the water, etc.

Actually, in our view, appellant comes somewhat nearer stating a case under his second point than under the first. The allegations are that children constantly played in the area, a fact known, or one that should have been known, to appellees; the fact that the one side where the child was drowned contained a precipitous drop rather than a slope as on the other three sides was also known, and no warnings or protection of any nature had been placed at the alleged dangerous location. Again, however, we cannot agree that the complaint states a cause of action. Shall this court say that an individual does not have a right to dig a pond on his property that will comply with his use requirements when that act is entirely legal? There may be a good reason for the pond being deeper on one bank than on the others. If such an act constitutes negligence, then how can a property owner, who desires and needs that particular kind of a pond, protect himself against potential lawsuits? Certainly, we would all agree that if the landowner is liable for injury to, or the death of, a six-year-old child, he would face the same liability for a three or four-year-old child. At that age, signs could not be read, and, for that matter, even with children some older, it is doubtful that the information on a sign would be sufficiently evaluated; as for fencing, as pointed out in Carmichael, “to construct a boy-proof fence at a reasonable cost would tax the inventive genius of an Edison.”

While this court said in Arkansas Power & Light Co. v. Kilpatrick, 185 Ark. 678, 49 S.W. 2d 353, that children of seven years of age, going onto other’s property, are not trespassers, our finding that this case does not come within the attractive nuisance doctrine, precludes any holding that Eddie James Cooper was an invitee. Under the allegations of the complaint, since he cannot be a trespasser, he was a licensee. In Garrett v. Arkansas Power & Light Co., 218 Ark. 575, 237 S.W. 2d 895, this court, quodng an earlier case, said:

“ ‘It is not always clear under a given state of facts as to what inference may be drawn as to a person being a licensee or an invitee but one of the sure tests is whether or not the owner of the premises is interested in the presence of the visitor.’ * * *
“Having arrived at the conclusion that Tommy Garrett was not an invitee but was a licensee it remains to consider what duty the law imposes on appellees in regard to him as such licensee. Our law seems to be well settled in this regard. * * *
“ ‘In all our decisions, on the subject — and there are many — we have adhered to the rule that one who goes upon the premises of another as a mere licensee is in the same attitude as a trespasser so far as concerns the duty which the owner owes him for his protection; that he takes his license with its concomitant perils, and that the owner owes him no duty of protection except to do no act to cause his injury after his presence there is discovered.’ ”

Of course, there is no allegation that appellees were interested in Eddie James’ presence on the premises, and there is no allegation that his presence on the premises was known to either appellee. See also AMI 1106, Paragraph A, which points out that an owner of property has no duty to maintain the premises in a reasonably safe condition for a licensee.

Summarizing, we hold that a pond, natural or artificial, which, outside of being a body of water, possesses no features which would allure a child of tender years, is not an attractive nuisance. We too find that the fact that the bank dropped off suddenly on one side does not constitute a trap. Likewise, we hold that appellees owed the little boy no duty of protection except to do no act to cause his injury after his presence there was discovered.

Affirmed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting in part. I fully agree with that part of the majority opinion treating the attractive nuisance theory; I respectfully dissent from that part upholding the circuit court’s sustaining of the demurrer to allegations of negligence which are not dependent upon the attractive nuisance doctrine. It is my opinion that the complaint, given the broad, liberal treatment accorded on demurrer, states a cause of action. I can and do accept the premise of the majority that the child in this case was a licensee. I think that the complaint can properly be said to have alleged: the condition on the land was an artificial one; the owner knew that numerous children frequently swam, fished and played in the pond; he knew or should have known that the precipitous drop-off on one side of the pond was an unusually dangerous one for children, who, because o£ their youth could not be expected to discover the dangerous condition or realize the danger involved; he did nothing to make the condition safe, to warn appellant’s decedent, or any child, or to protect the children from harm.

Appellant asks us to adopt Restatement, Torts, Second, § 339. This section would treat the child as a trespasser. If he were a licensee, as he is taken by the majority to be, the landowner certainly owed him no less duty than it would owe a trespasser. See 62 Am. Jur. 2d 416, Premises Liability, § 145. I consider the following Restatement sections particularly pertinent:

§ 339. Artificial Conditions Highly Dangerous to Trespassing Children
A possessor of land is subject to liability for physical harm to children trespassing thereon caused by an artificial condition upon the land if
(a) the place where the condition exists is one upon which the possessor knows or has reasons to know that children are likely to trespass, and
(b) the condition is one of which the possessor knows or has reason to know and which he realizes or should realize will involve an unreasonable risk of death or serious bodily harm to such children, and
(c) the children because of their youth do not .discover the condition or realize the risk involved in intermeddling with it or in coming within the area made dangerous by it, and
(d) the utility to the possessor of maintaining the condition and the burden of eliminating the danger are slight as compared with the risk to children involved, and
(e) the possessor fails to exercise reasonable care to eliminate the danger or otherwise to protect the children.
§ 342. Dangerous Conditions Known to Possessor
A possessor of land is subject to liability for physical harm caused to licensees by a condition on the land if, but only if,
(a) the possessor knows or has reason to know of the condition and should realize that it involves an unreasonable risk of harm to such licensees, and should expect that they will not discover or realize the danger, and
(b) he fails to exercise reasonable care to make the conditions safe, or to warn the licensees of the condition and the risk involved, and
(c) the licensees do not know or have, reason to know of the condition and the risk involved.
§ 343B. Child Licensees and Invitees
In any case where a possessor of land would be subject to liability to a child for physical harm caused by a condition on the land if the child were a trespasser, the possessor is subject to liability if the child is a licensee or an invitee.

Appellees, and apparently the trial court, relied only upon AMI Civil 1102, 1103 and 1106. I do not think that these instructions are intended to encompass the whole field of an owner’s liability to the exclusion of a case such as this where a child of tender years is involved, nor do I think that this court has ever given consideration to the theory advanced by appellant. Consequently, I do not think that the instructions relied upon are conclusive of the question here presented on demurrer.

Our cases furnish little in the way of precedent where the licensee is a child of tender years. It seems to me that when an owner has knowledge that children of tender years are frequenting his premises, at least under circumstances from which permission or acquiescence may be inferred, he is under some duty to give a warning of dangerous conditions created by him which he might reasonably expect would be discovered and appreciated by an adult, or to take steps to minimize the danger or protect children from it. That which is not a “trap” to an adult may be one to a child of tender years. Extensive discussion of the theory I would follow in reversing the judgment overruling the demurrer is to be found at 62 Am. Jur. 2d 400, et seq., §§ 133, 134; Annot. 26 A.L.R. 3d 317, Duty of Possessor of Land to Warn Child Licensees of Danger.

I am authorized to state that Mr. Justice Jones joins in this dissent.

      It will be recalled that in the latter citation, it was mentioned that the attractive nuisance doctrine generally is not applicable to any body of water, artificial as well as natural, and it is inferred that that would be the view of this court; however, the body of water there involved was natural, and accordingly the point was not specifically passed upon.

      See the discussion in the cited case as to what constitutes an invitation on page 683.

        Knight v. Farmers’ & Merchants’ Gin Co., 159 Ark. 423, 252 S.W. 30.

      Instruction 1103 is not necessarily in conflict with the Restatement principles. It was not necessary that the pleader use the words “wanton conduct” in the complaint, i£ the facts alleged tended to state an utter 'indifference to or conscious disregard for the safety of others. See AMI Civil 1101; Harkrider v. Cox, 230 Ark. 155, 321 S.W. 2d 226. Acts which would not be considered a breach of duty toward an adult licensee may be considered wilful or wanton where a child is involved. 62 Am. Jur. 2d 401, Premises Liability § 133. Furthermore, if the owner had reason to believe that the licensee was in a position of danger, the owner had the duty to use ordinary care to avoid injury to the licensee.


text:
    Al FREEMAN and George FREEMAN v. STATE of Arkansas
    CR 73-50
    496 S.W. 2d 378
    Opinion delivered July 2, 1973

      /. H. Cottrell, for appellants.

      Jim Guy Tucker, Atty. Gen., by: James W. Atkins, Asst. Atty. Gen., for appellee.
   Carleton Harris, Chief Justice.

George and A1 Freeman, brothers, were convicted by Desha County Circuit Court, sitting as a jury, of possessing burglar’s tools,, George Freeman being sentenced to serve ten years in the Arkansas Department of Correction, and A1 Freeman being sentenced to serve six years. From the judgment so entered, appellants bring this appeal.

For reversal, it is first asserted that the “Court erred in not directing a verdict of acquittal when the State rested, by reason of a total absence of any testimony to show the tools introduced into evidence were adapted, designed, and commonly used or kept for purposes of breaking into stores, shops, offices or dwelling houses as charged in the information, or that they were more nearly suitable for use by burglars than for lawful purposes.” Officer Elmer Wayne Hamilton of the Dumas Police Department testified that he was on duty, along with Officer Mose Harmon, around 1:50 A.M. on December 5, 1971; that he observed two black men walking on the side of the street on Choctaw, the men being in work clothes. As the car of the officers approached, the two men ran around the corner and one of them, Andrew Berry, not involved in the present case, got behind a butane tank. According to the officer, he observed Berry placing some tools behind the tank. Hamilton stated that a brace and bit were found behind the butane .tank. He testified that George Freeman had a hammer which was thrown into a yard and that Freeman dropped a crowbar; also, he was wearing a glove on one hand. The two were arrested and taken to the station where they were given a breathalizer test. Berry registered intoxication and he was also charged with indecent exposure. Freeman was not charged at that time, and was taken back to his car where A1 appeared to be asleep in the car. They were not immediately arrested and George got into the automobile and the Freemans proceeded to the station. They were then arrested, and subsequently the present charge was filed against them. The testimony of Officer Mose Harmon, called by the defense, differed in some respects from that of Hamilton, principally in that Hamilton had stated that the tools were picked up by the officers as soon as they were dropped, while Harmon testified that they were not taken until after the two Freemans had been arrested.

The next morning, a search warrant was obtained and the car was searched. Another crowbar and a saw were found in the trunk, along with a Missouri license plate which had expired in October, 1971. Several pairs of gloves were found in the car.

George Freeman testified that he lived in St. Louis and at the present time, was on parole from the Federal penitentiary, having been on parole since 1967. He had been convicted of bank robbery in about 1956, and had also served time at Cummins for a period of sixty days, following his parole from the Federal institution; also, he had been convicted of armed robbery in Portland, Oregon in 1946. Freeman stated that he worked at Delmar Gardens, a nursing home, and that he was manager and general maintenance man, Delmar operating two homes, fifteen miles apart. This appellant stated that he did plumbing, fixed switches, carpentry work, painting, and other similar tasks as part of the job. In addition, he stated that he engaged in carpentry wherever he could find a job and that he had been engaged in paneling a house. He said that at the time of the arrest, he was also employed by Kisco Company, working on an assembly line, “handling 150 millimeter shells”; that as an employee there, he received a pair of new gloves every night, in order not to injure the shells. One of this appellant’s-fingers had been amputated, and he said that he was wearing the glove over the bandage as protection. According to appellants, the trip to Arkansas was for the purpose of picking up luggage belonging to Al Freeman. This appellant, according to his testimony, was employed by the St. Louis Land Clearance Authority (similar to an Urban Renewal project), having been so employed for twelve years. He said that his salary was $9,247.00 per year, plus some overtime. Freeman testified that he and his wife were planning a trip to Michigan, but he discovered that he didn’t have his luggage. According to the witness, the luggage was quite expensive, having a value of $587.00, and he said drat he had loaned ids luggage to his wife’s brother, who lived at Eagle Mills, Arkansas. Al stated that he did not have enough cash to make a plane or bus trip to Eagle Mills so he asked George to loan him his automobile. The brother would not lend him the car, but said that he would take him down to Eagle Mills. George had Berry in the car to help drive, since the former’s finger was causing him pain. The three left St. Louis about 11:00 A.M. on Saturday, the 4th. Al said that he drove for a while, but became drowsy and turned the wheel over to Berry; that they stopped in Poplar Bluff, Missouri to eat, and when they again started on the trip, he went to sleep. According to the witness, he was awakened near McGehee and George told him that a wrong turn had been made and they Were going back to where the mistake had occurred. The three stopped at Dumas for food, and Berry, according to Al Freeman, wanted a drink. Berry and George Freeman went to get liquor for themselves and coffee for Al, and Al went back to sleep. He said that he was awakened by a police officer shining a light in his face.

Both appellants stated that they had never been to Eagle Mills, but George said that he had a good idea how to get there from directions given by Al’s wife, and a map. Berry was driving and was to follow Highway 65, and was to awaken George when they reached a certain place on 65 where they were to turn off.

“He stayed on 65 instead of calling me at the place where he was suppose to turn and maybe he missed it and kept right on 65. As you know it is a turn there on 65, and then when I did wake up I saw a sign saying 'McGehee.’ I know that we must be going die wrong way, it was 65 and we shouldn’t have been on it. That’s why we looked at the map and saw that we was out of the way and we turned around and was coming back to Pine Bluff and pick up 69 or 79 whichever. . .”

George denied that he had any tools in his possession while on the street in Dumas or that he had dropped any, and also denied that Berry had tools. He identified the brace and bit and said that it was in the trunk of his car. Freeman mentioned other tools which he stated were in the back which he used in his work, but which are not relied upon by the State in bringing the charge. He identified the saw as his property, as well as the gloves; George denied ownership of the hammer, stating that the hammer he owned was new. This appellant stated that his parole officer was aware of the fact that he had the tools and was familiar with the work he performed in using them.

George, in explaining why he and Berry were on the street, testified:

“When we got through eating we got ready to move off and pull down the street and we wanted to, the place was closed up, closing up, we was going to see if we couldn’t get a couple of women I guess, so this is why we pulled down in front of this place where the music was and so they decided they wanted some coffee and something to drink to go along with it. We were not particular about the coffee, we wanted the alcohol, we was going to see if we could get some coffee because we thought there was a restaurant next to this grocery store and we go back to this liquor place to get this stuff and that’s when the police stopped us.”

Appellant, A1 Freeman, said that he did not know tools were in the trunk of the car, though he was aware of his brother’s occupation entailing maintenance. The witness said that his brother and Berry did not carry any tools with them when they left the automobile. He stated that he did not know how to get to Eagle Mills, but his wife “told us to follow the bus route.”

The court, in rendering judgment, commented as follows:

“It is awfully hard for the Court to believe three grown men of these mens’ intelligence, they are apparently very intelligent men, with a road map in their hand would leave St. Louis going to Eagle Mills, Arkansas, and wind up in McGehee, Arkansas, and then turn around in McGehee and start back to Pine Bluff, Arkansas, to go to Eagle Mills when there are three or four ways you can go to Eagle Mills even from McGehee, Arkansas, if you are looking at a map. In addition to that I think you can drive all the way From St. Louis to, well, I know that you can get a lot further than McGehee by 1:30 at night, you can get a lot further than that if you are driving. In addition to that it is awfully difficult to believe that a person would drive from St. Louis, Missouri, to Eagle Mills to pick up a set of suitcases or a set of luggage.”

In discussing the first point for reversal, we might refer to the case of Prather v. State, 191 Ark. 903, 88 S.W. 2d 851. There, we said:

“Therefore, should we follow the theory upon which this case is presented to us by appellant, that is to say, if the tools, devices, appliances, or materials were such as might be reasonably used on proper occasions by honest workmen in the prosecution of their respective vocations, then the statute would most probably be futile, so far as its enforcement is concerned. At least, courts and juries would be unable to convict any burglar or any man who might be indicted, unless there was found in the possession of such person some tool, manufactured for or used by burglars, and which would be unsuited for use otherwise. Such construction of this statute would be unwise and would tend to defeat its beneficent purpose in the protection of society against professional lawbreakers.
“Perhaps, no fixed rule or announcement should be made as a criterion for guilt or innocence, except that in every instance the matter under investigation should be determined as a matter of fact, [our emphasis controlled or explained by all of the conditions, circumstances, and such pertinent collateral matters as might be present.”

While as far as George Freeman is concerned, the facts recited by the trial court, sitting as a jury, are logical and persuasive, along with the fact that it is not necessary to carry tools around at 1:30 in the morning in order to buy liquor or contact women, it is nonetheless necessary that the judgment as to George be reversed because of the fact that no evidence was offered to the effect that at least one of these “tools” was designed for or commonly used in committing burglary. See Gossett v. State, 242 Ark. 593, 414 S.W. 2d 631. In Moore, Frazier and Davidson v. State, supra, the sheriff testified that any one of the tools there found might be used in some ordinary, lawful, occupation. However, he also testified that such a combination of tools was adapted to, and commonly used for breaking and entering. In Satterfield v. State, 174 Ark. 733, 296 S.W. 63, the Chief of Police of Fort Smith, an expert on burglary tools, testified; in Prather v. State, supra, a police officer testified relative to the use of the tools. It must be remembered that the jury is the fact finder, and there probably are many jurors who are not familiar with possible uses of tools of this nature. While in the case before us, the court, sitting as a jury, tried the case, the same rules are applicable that relate to a jury trial.

As to A1 Freeman, we find absolutely no evidence that sufficiently connects him with the tools involved. This appellant was not with the other two while they were walking the streets and dropped the tools; according to the evidence, he did not own any of the tools. According to the officers, he was asleep in the car when discovered; he did not own the automobile in which the tools were being carried. In other words, the only fact that can be established as to A1 Freeman is that he was riding with the other two. The court recognized the weakness of the State’s case against A1 Freeman and made several remarks during the trial, such as, “The evidence is not anything except that A1 Freeman was asleep in a car * * * I don’t believe the Supreme Court will sustain you on that. Even if it was shown that he owned these tools it would be a little stronger case, * * * . You did not even show that he was in possession of them except that he was in the automobile.” Apparently, the judgment entered by the court was based simply on the fact that A1 Freeman was travelling with the other two. We are of the opinion, that under the evidence, or to state it more accurately, because of the lack of evidence, the court should have granted an acquittal to appellant A1 Freeman.

In accordance with what has been said, the judgment of the Desha Circuit Court is reversed and the cause, as to George Freeman, is remanded for further proceedings. As to A1 Freeman, the judgment is reversed and dismissed.

It is so ordered.

Fogleman, J,, dissents in part.

John A. Fogleman, Justice,

dissenting. I would not dismiss the case as to A1 Freeman. The undisputed testimony is that the mission on which the three appellants embarked was for A1 Freeman’s purposes. His professed ignorance of the presence of the tools in the automobile in which he was found is subject to some skepticism to say the least. The gloves were in the car, not the trunk. A1 Freeman was wide awake when George Freeman and Berry departed on their mission, whether it was to find liquor or female companionship for themselves, coffee for A1 or to commit a burglary. I cannot believe that they removed these tools from the car without A1 Freeman’s knowledge. Mysteriously enough, someone, presumably A1 Freeman, had moved the vehicle three blocks from the place where George and Andrew Berry had left him, before the officers who arrested these two brought George back to find the vehicle, and someone had locked the car doors. One of the officers who went up to the automobile where A1 Freeman was found recognized the possibility that A1 was doing a good job of feigning sleep. A search of the vehicle disclosed that tools other than those said to have been hurriedly discarded by George Freeman and Berry were in the trunk. These tools included a crowbar and a saw. George Freeman said that the brace and bit, which the officers claimed to have found elsewhere, was actually found in the trunk of his car. A1 Freeman was arrested as an accessory. I cannot say that a reasonable mind could not conclude from this testimony that A1 Freeman was at least an accessory to the crime. The judge sitting as a jury might well have believed from the evidence before him that Freeman was guilty of more than -.being caught in bad company. I certainly do not agree that we should conclude that the evidence which might be presented has been fully developed.

      Ark. Stat. Ann. § 41-1006 (Repl. 1964):
      “Possession or manufacture of burglar’s tools. — Any person who makes, mends, designs or sets up, or who has in his custody or concealed about his person, any tool, false key, lockpick, bit, nippers, fuse, force screw, punch, drill, jimmy, bit, or any material, implement or other mechanical device whatsoever, adapted, designed or commonly used for breaking into any vault, safe, railroad car, boat, vessel, warehouse, store, shop, office, dwelling house, or door shutter, or window of a building of any kind, shall be guilty' of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary for not less than two (2) years, nor more than ten (10) years.”

      Berry was observed “relieving himself” behind the butance tank.

      Subsequent testimony by the appellants was to the effect that they had gone back to try to obtain the release of Berry.

      Eagle Mills is located in Ouachita County near Camden.

      [5] This italicized phrase was also emphasized in quoting this paragraph in Moore, Frazier and Davidson v. State, 244 Ark. 1197, 429 S.W. 2d 122.

      In the second point for reversal, it was specifically contended that a verdict of acquittal should have been entered for A1 Fteentan because there was no evidence showing possession of the tools by him.


author: George Rose Smith, Justice.

text:
    Edward “Pete” RICHARDS v. STATE of Arkansas
    CR 73-57
    498 S.W. 2d 1
    Opinion delivered July 2, 1973
    [Rehearing denied August 27, 1973.]

      Randell Templeton, for appellant.

      Jim Guy Tucker, Atty. Gen., by: O. H. Hargraves, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

The appellant, charged with and convicted of assault with intent to rape, was sentenced to imprisonment for 21 years. He argues two points for reversal.

First, it is contended that the State’s proof did not sufficiently identify Richards as the person who committed the offense. This contention is without merit. Richards’ identity was established not only by the testimony of the prosecutrix but also by a chemical analysis of stains found upon her clothing and upon a handkerchief taken from Richards at the time of his arrest and apparently used in the course of the assault.

Secondly, Richards questions the admissibility of the record of a previous conviction introduced by the State to show that he was a habitual criminal. The record in question, showing a burglary conviction in a Texas state court, was certified by Waymon Wooderson as the Record Clerk of the Texas Department' of Corrections.

Under our holding in Higgins v. State, 255 Ark. 153, 357 S.W. 2d 499 (1962), the record was not certified by the right person. That part of the statute which is pertinent here requires that the conviction be shown by “the certificate of the warden or other chief officer of any penitentiary of this State or any other State.” Ark. Stat. Ann. § 43-2330 (Repl. 1964). In Higgins we held that the statute must be strictly construed and that a certificate by an Inspector, Identification Division, did not satisfy the statutory requirement that it be by the chief custodian of the records of the United States Department of Justice. By the same reasoning it cannot be said that the Record Clerk of the Texas Department of Corrections is the warden or chief officer of a Texas penitentiary.

The error, however, does not necessarily call for a new trial. The jury, in accordance with the statute, first returned a verdict of guilty and then, after having heard the proof of the prior conviction, retired a second time to fix the punishment. Section 43-2330.1 (Supp. 1971). Hence the error had no bearing upon the finding of guilty. The minimum penalty for assault with intent to rape is confinement for three years. Ark. Stat. Ann. § 41-607 (Repl. 1964). If the Attorney General, within 17 days, elects to consent to a reduction of the sentence to the minimum, the judgment will be affirmed as so modified. Otherwise the judgment must be reversed and the cause remanded for a new trial.


text:
    ST. LOUIS SOUTHWESTERN RAILWAY COMPANY v. Trudie EVANS
    73-29
    497 S.W. 2d 692
    Opinion delivered July 2, 1973
    [Rehearing denied August 27, 1973.]

      Coleman, Gantt, Ramsay ir Cox, for appellant.

      McMath, Leatherman ir Woods, and Howard, Howard, Howard, and Wilson ir Hodge, for appellee.
   Lyle Brown, Justice.

Appellee was seriously injured as a result of a collision between her automobile and appellant’s train. Appellee was awarded a substantial judgment, the amount of which is not questioned. Appellant seeks reversal on the grounds that it was error to give AMI 1805 (abnormally dangerous crossing); that-the court also erred in giving AMI 1802 (lookout); and that appellant was entided to an instructed verdict.

Appellee lived approximately one mile on a gravel road from where the road crosses appellant’s main line tracks and runs into State Highway 79 on the opposite side of the track. In proximity to the crossing the road curved to appellee’s right. At a distance of forty-five feet from the tracks the road becomes perpendicular to the tracks. As she traveled along the road her vision to her right, from whence the train was coming, was somewhat obscured by shrubs and bushes and that condition existed until she reached the forty-five foot point to which we have referred.

Appellee Trudie Evans had worked at a paper mill at Camden for many years. She was a frequent user of the gravel road and was on her way to work at the time of the accident on a clear afternoon. She testified that as she rounded the curve she could not see the railroad tracks looking to her right because of bushes and saplings along the fence rows both beside the gravel road and alongside the railroad right-of-way fence. She said that when she got into the forty-five foot area it was necessary to look over her right shoulder to see a train approaching from that direction. She said that as she approached the track she looked both directions and did not see the train. She said as she looked up and down the track her vision to her right was evidently obscured by the line of bushes. She asserted that she did not see or hear the train until a matter of seconds before she was struck. That is when, she said, she heard the whistle; she said she never heard a bell. Her car windows were rolled up. She said she came to a rolling stop near the edge of the fence line, and not seeing a train, she proceeded to drive across the track very slowly. She said the impact rendered her unconscious.

Landal Evans, son of appellee, testified that he observed the premises around the crossing and that at the time of the accident the trees were budded and had small leaves on them. -He testified that the vision of the crossing was obstructed by the growth of briars, vines, and small bushes which were along the side of the road and on the fence row which parallel the tracks.

It was stipulated that an average of 115 cars passed over the crossing in one day and that two school buses crossed it twice daily. It was also shown that the number of trains passing the crossing was 22 per day on a 24 hour basis.

After being denied a motion for directed verdict the appellant presented five witnesses. Locomotive engineer, J. A. Favor, testified that he was positioned on the right side of the engine going south (being the side opposite appellee as she approached the crossing); that fireman Motes and head brakeman Holladay were seated on the left side. “I have a throttle that controls the speed, the brake to regulate it with to stop the train, whistle cord, bell ringer and light switches.” He explained that as they approached the crossing there was a straight stretch of some two and a quarter miles and that the train was traveling approximately fifty miles per hour. “As you approach the crossing, there is a whistle board a quarter of a mile from the crossing. When I reached the whistle board as I approached this crossing I turned the bell on at the crossing board signal and started blowing the standard crossing whistle.” He testified that he did not see appellee’s car until seconds before it was hit. He explained that the engine has a “nose” on it that protrudes some twelve or fifteen feet from the engineer’s seat and it obstructed his view as the train came into the crossing. “As I got real close to the crossing the fireman hollered ‘look out for the car’, and I applied the brakes in emergency. About the time I done that, well, I could see the hood part of the car was about the center of the engine there where I could see.” On cross-examination he said he was “within seconds from the crossing” when the fireman warned him of the car, estimating the train to have been within fifteen feet of the crossing.

Fireman T. L. Motes, seated on the left side, testified he saw the car as it approached the crossing; that as appellee approached the crossing it appeared she slackened her speed as if she were going to stop; that as she got closer to the crossing he realized she was not going to stop and he then warned the engineer. He corroborated the engineer with respect to blowing the whistle and ringing the bell. When the train was stopped, this witness went back to the crossing and said he heard appellee moan that her brakes would not work.

Brakeman Louis Holladay, seated on the left and behind the fireman, said he saw appellee’s car as it approached the curve and several feet before she reached the forty-five foot mark; that she slowly came up the incline in the road and he thought appellee was going to stop; and because he thought she was stopping the witness gave no warning when he first saw the car. He said the engineer was blowing the whistle and ringing the bell as they approached the crossing.

Witness R. A. Womble, a brakeman on the second engine, was seated on the side opposite appellee. He had no knowledge of the accident before it occured. He went to the scene. He said appellee appeared unconscious but he heard her say her brakes failed.

Rev. James Kile lives in Shreveport and at the time of the accident he was driving alongside the train and in the same direction. It was stipulated that if present he would testify that the train was going approximately 50 miles per hour and that he heard the train whistle blowing for perhaps a quarter of a mile and up until the impact. He did not see the impact. It was also stipulated that there had been no other accident on this crossing for at least the past twenty years, there being no records of the railroad prior to that time. It was also agreed that appellee faced a wooden crossing sign as she approached the crossing and that there were no flasher lights or bars.

POINT I. The trial court erred in submitting AMI 1805 (abnormally dangerous crossing) to the jury. .

The instruction reads as follows:

Trudie Evans contends that the railroad grade crossing in this case was abnormally dangerous, and she has the burden of proving this proposition.
If a railroad grade crossing is frequently used by the traveling public, if trains pass over it frequently, and if the crossing is so dangerous because of surrounding circumstances that a reasonably careful person could not use it with reasonable safety in the absence of special warnings, then it would be an abnormally dangerous crossing. Whether the railroad grade crossing in this case was abnormally dangerous is for you to decide.
If you find that the crossing was abnormally dangerous, as I have defined that term, then it was the duty of the railroad to use ordinary care to give a warning reasonably sufficient to permit the traveling public to use the crossing with reasonable safety.

The instruction is based on our holding in Fleming v. Missouri & Ark. R. Co., 198 Ark. 290, 128 S.W. 2d 986 (1939). Appellant forcefully argues that 115 cars and two school buses do not, as' a matter of law, constitute “frequent” use by the traveling public.

There are at least three cases in which we have approved the applicability of Fleming and in each of those cases the traffic was much heavier than in the case at bar. Hawkins v. Mo. Pac. R.R. Co., 217 Ark. 42, 228 S.W. 2d 642 (1950); St. Louis S.W. Ry. Co. v. Farrell, 242 Ark. 757, 416 S.W. 2d 334 (1967); and St. Louis S.W. Ry. Co. v. Jackson, 242 Ark. 858, 416 S.W. 2d 273 (1967). We disapproved the application of Fleming in a case where the vehicular traffic was minimal and a total of only three trains daily passed the intersection. Chicago, R.I. & P.R.R. Co. v. Gray, 248 Ark. 640, 453 S.W. 2d 54 (1970).

Calculating on the basis of the flow of vehicular traffic agreed upon, we conclude that the average number of cars passing hourly over the crossing per twenty-four hour day was four plus vehicles. Recognizing that it is difficult to say what constitutes “frequency of use”, and further recognizing that fundamentally it is an issue which addresses itself to the jury, yet we can say with a reasonable degree of certainty that the use of this crossing was not frequent within the contemplation of Fleming. Thus we conclude that the instruction should not have been given.

POINT II. The trial court erred in submitting AMI 1802 (lookout) to the jury. We see no need to repeat our abstract of the testimony concerning facts here relevant. In Baldwin v. Brim, 192 Ark. 252, 91 S.W. 2d 255 (1936), we held that before an injured party could make an issuable case for the jury under the lookout statute it was necessary to establish:

“. . . first, that the injuries occurred by reason of the operation of a train;
second, that the circumstances surrounding the injuries were such as to reasonably lead to the conclusion that the injuries would not have occurred had a proper lookout been kept; and,
third, had such lookout been kept, the peril of the injured party could have, by the exercise of ordinary care, been discovered in time to have avoided the injury.”

AMI (Civil) 1802 provides:

All persons operating trains upon any railroad in this state have the duty to keep a constant lookout for persons upon, near, or approaching the railroad track. A violation of this duty is negligence.
This does not mean that each member of the train crew must keep a constant lookout, but it does mean that an efficient lookout must be kept by some member of the crew at all times.

We think that the lookout kept by the trainmen was sufficient under the circumstances. Their testimony with reference to the approach and decreasing speed of appellee’s car corroborated appellee’s testimony — she said she continued up the incline at a rolling stop speed and the fireman and brakeman described it as continuing at a slow walk. Needless to say, under the undisputed evidence, the train could not have been stopped in time to avoid the collision after it became apparent that appellee was not going to make a normal stop.

We cannot distinguish this case from that which was before us in Missouri Pac. R.R. Co. v. Doyle, 203 Ark. 1111, 160 S.W. 2d 856 (1942), wherein we reversed and dismissed a judgment against the railroad. In pointing out that no issue had been made under the lookout statute, we said:

“. . . The operatives of trains have the right to assume that a traveler or a pedestrian approaching a railroad track will act in response to the dictates of ordinary prudence and the instinct of self-preservation, and will, in fact, stop before placing himself in peril, and the duty of the railroad employees to take precaution begins only when it becomes apparent that the traveler at a crossing will not do so."

AMI (Civil) 602 provides:

Every person using ordinary care has a right to assume, until the contrary is or reasonably should be apparent, that every other person will use ordinary care and obey the law. To act on such assumption is not negligence.

We hold that it was error to submit the issue of lookout. The railroad was entitled to an instructed verdict. The case was fully developed and for that reason we do not remand.

Reversed and dismissed.

Harris, C.J., and Jones and Holt, JJ., would remand rather than dismiss.