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

text:
    CHEROKEE CARPET MILLS, INC. v. MANLY JAIL WORKS, Inc.
    74-343
    521 S.W. 2d 528
    Opinion delivered April 21, 1975

      Mays and Landers, for appellant.

      Arnold, Arnold & Lavender, Ltd., for appellee.
   Conley Byrd, Justice.

The sole issue on this appeal is whether a contract with appellee, Manly Jail Works, Inc., to design and construct a 12,122 gallon water tank for use in the carpet plant of appellant, Cherokee Carpet Mills, Inc., is subject to the 5 year statute of limitations set forth in Ark. Stat. Ann. § 37-237 (Supp. 1973). That statute provides:

“No action in contract (whether oral or written, sealed or unsealed) to recover damages caused by any deficiency in the design, planning, supervision or observation of construction or the construction and repair of any improvement to real property or for injury to property, real or personal, caused by such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction or the construction or repair of such improvement more than five (5) years after substantial completion of same.”

Upon a demurrer to the compalint as amended, the trial court held the statute applicable and dismissed the cause of action. We agree with the trial court.

The compaint alleges that appellee, pursuant to a contract attached to the complaint, manufactured the tank and shipped it to appellant’s plant at Lewisville, Arkansas, on or about March 1, 1967, and that upon arrival the tank was installed in appellant’s plant by Westrock Mechanical Contractors, Inc. That while using the tank in the operation of the plant, under the conditions set forth in the contract, on May 25, 1970, the tank ruptured causing the dyes contained therein to be sprayed into other parts of the plant and resulting in the damages prayed for. The specific allegation as to appellee was as follows:

“That the rupture of said baffle or wall within the storage tank and the resulting rupture in the exterior of the tank were caused by the failure of the defendant, Manly Jail Works, Inc., to perform its agreement as contained in Exhibit “A” attached hereto with the plaintiff in that said tank was improperly designed, improperly manufactured and otherwise deficient to be operated under the conditions and specifications set forth in the contract between the plaintiff and the defendant, Manly Jail Works, Inc., as contained in Exhibit “A” attached hereto; ...”

The contract attached to the complaint shows an order for the tank containing three different compartments with mixing motors and turbines and with internal pipe and couplings in the tank wall. The tank was to be shop tested at 55 PSI for a working pressure of 27 PSI.

Thereafter appellant filed an amendment to its complaint wherein it was alleged:

“THAT said storage tank was subsequently manufactured by the Defendant, MANLY JAIL WORKS INC., and shipped from the plant of said Defendant to the plaint of the Plaintiff at Lewisville, Arkansas, on or about March 1, 1967; that upon the arrival of said tank at the plant of the Plaintiff, it was placed upon a cradle in the plant of the Plaintiff by the Defendant, WESTROCK MECHANICAL CONTRACTORS, INC.; that said tank was not bolted or otherwise attached to the cradle or any other part of the building or real estate of the Plaintiff, but was interconnected with other parts of the machinery and equipment of the Plaintiff; that said tank was, at the time of installation and has been ever since a part of the machinery and equipment of the Plaintiff. ...”

The appellant both here, and in the trial court, contends that the issue of whether the storage tank was an improvement to real property, within the meaning of Ark. Stat. Ann. § 37-237 (Supp. 1973), supra, is a factual question. In doing so appellant places much stress upon the allegation that “said tank was not bolted or otherwise attached to the cradle or any other part of the building or real estate of the plaintiff.” Appellant’s emphasis, however, ignore that part of the amended complaint which admits that the tank . . . “was interconnected with other parts of the machinery and equipment of the plaintiff; that said tank was, at the time of installation and has been ever since a part of the machinery and equipment of the plaintiff.” In Alwes v. Richheimer, 185 Ark. 535, 47 S.W. 2d 1084 (1932), the issue was whether the furniture and fixtures in a theater went with a mortgage to the real estate or a mortgage on personalty. In holding that it was an appurtenance to the real estate and after pointing out that the furniture and fixtures were a part of the improvements in the building for the purpose for which it was constructed, we said: “the tendency of modern decisions, both English and American, ‘is against the common-law doctrine that mode of annexation is the criterion, whether slight and temporary, or immovable and permanent, and in favor of declaring all things to be fixtures which are attached to the realty with a view to the purposes for which it is held or employed.”’ Appellant does not contend that its entire installation of machinery and equipment was not “an improvement to real property” and when we consider that the tank in question was put into position and interconnected with other parts of the machinery and equipment, we can think of no fact situation that would differentiate the design and fabrication of the tank from the design and installation of the other machinery and equipment for purposes of preventing the statutory bar of Ark. Stat. Ann. § 37-237 (Supp. 1973), supra.

Affirmed.

Fogleman and Jones, JJ., dissent.

John A. Fogleman, Justice,

dissenting. This case was disposed of by the trial court on a demurrer asserting the statute of limitations. I cannot agree that there is no question of fact involved in determining the application of the pertinent statute of limitations in this case when we give appellant the benefit of every reasonable inference that may be drawn in the pleader’s favor, as we must. See McKim v. McLiney, 250 Ark. 423, 465 S.W. 2d 911. Appellant concedes that the issue turns upon the question whether the installed storage tank was “an improvement to real property.” This term has not been construed or defined in applying the statute involved here. We have determined in other cases what the term meant, but the meaning may vary, depending upon the relationship of the parties.

For example: In an attachment in a suit on a note, a defendant claimed that the note was given in consideration for a contract for the erection of valuable improvements upon the land upon which the attachment was levied, and for supplies. The alleged improvements were a portable steam engine, mill and cotton gin. The court ordered the steam engine and machinery attached to be sold as personal property under the levy. It had been purchased from the plaintiffs by a partnership of Maddox & Toms, the defendants in the action. The engine furnished the motive power for a gin and even though it was constructed so it could be readily moved from place to place, it had never been moved after it was put upon the property. It rested upon sills, under a rough plank shed which protected it from the weather. It might be moved without substantial damage to it or the freehold. The machinery was not attached to the soil. A shed was erected over the machinery. The question was whether the note was an obligation for the erection of improvements upon real property claimed to be exempt as the homestead of one of the partners, who was a tenant in common with his two sisters.

The court said:

The remaining question is whether the note, sued on, is an “obligation contracted for the erection of improvements” on the land in question, within the meaning of the third section of the 12th article of the Constitution? The engine, etc., for which the note was in part given, was purchased of appellants, by Maddox & Toms, as partners, and placed on the premises as a motive power to the gin, etc., to be used in their partnership planting business. Maddox had no interest in the land. As between him and Toms, it did not become part of the realty, but remained personalty, and was subject to their partnership debts. Toms was only a tenant in common with his sisters, and they could not have claimed that the portable engine, placed on the land by him and his partner, for purposes connected with their planting business, became part of the realty. If Toms had been the sole owner of the land, and purchased the engine and placed it on the premises for his own purposes, and the controversy had arisen between him and a vendee to whom he had sold the land, there might be a question whether it was not a fixture, and passed with, and as part of the realty. 1 Wash, on R. Prop., top pages, 16, 17.
Upon the facts of this case, the engine, etc., was surely not an improvement erected on the property within the meaning of the clause of the Constitution in question. As held by the court below it was no permanent betterment of the property.

(Greenwond & Son v. Maddox & Toms, 27 Ark. 648.

In Bemis v. First National Bank, 63 Ark. 625, 40 S.W. 127, the question presented was whether a complete sawmill and planing mill outfit and attached machinery consisting of five boilers, two engines, a sawmill with saw, shafting, pulleys, belting, fixtures, a planing machine, etc. were real property or personal property as between an attaching creditor and the holder of a vendor’s lien on the real estate on which the mill was located. All were attached to the buildings on the grounds in the usual way. In holding that this property was real estate subject to the vendor’s lien, this court then said:

****The difficulty, in any case, is in determining whether a piece of property, where movable, and yet attached, is the one or the other species of property; and the general rule has never been changed, but more particularly explained in modern times. Thus, while a building and things fastened for use in it are prima facie real estate, because they answer the general definition of the common law, yet many circumstances are liable to intervene by which the classification of these articles coming under the head of “fixtures” may become personal property. In Choate v. Kimball, 56 Ark. 55, 19 S.W. 108, this court applied the following rules, taken from the authorities, and generally recognized as proper explanations of the general rule, to wit: (1) “Real or constructive annexation of the article in question to the realty.” (2) “Appropriation or adaption to the use or purpose of that part of the realty with which it is connected.” (3) “The intention of the party making the annexation to make the article a permanent accession to the freehold; this intention being inferred from the nature of the article affixed, the relation and situation of the party making the annexation, and the policy of the law in relation thereto, the structure and mode of annexation, and the purpose or use for which the annexation has been made.” It is unnecessary to discuss the first two definitions, since, for all practical purposes of this case, they are comprehended in the third statement, and of this Ewell, in his work on Fixtures (page 22), says: “Of these three tests the clear tendency of modern authority seems to be to give pre-eminence to the question of intention to make the article a permanent accession to the freehold, and the others [the first and second statements] seem to derive their chief value as evidence of such intention. ” In the case of Choate v. Kimball, supra, this court said: “Without making a detailed recital of the facts in this case, it may be stated that the annexation was sufficient to meet the requirements of the first test; but that the articles could be removed without any injury to the freehold, or any material injury to themselves, and that the articles were appropriate and adapted to the use of the realty with which they were connected, but that they were equally appropriate and adapted to the use of other sawmills. The articles may or may not have been fixtures within the first and second tests, and whether they were or were not must be determined by an application of the third. ” The same, in substance, may be said of the machinery and necessary appliances of the mills in question, and of any other sawmill; and in making this statement we need not assent to or dissent from the statement that it is material whether the articles are so attached as that they may be detached without injury to the freehold or to themselves, for the mere manner in which the articles are attached may not so much evidence the intention of making the annexation permanent or temporary as an intention to provide the more conveniently for mere possible changes. Applying the third test to the facts in that case, this court held the articles to be personal property, but solely on evidence to the effect, as stated in the opinion, that it was the custom in the locality to regard and treat all such as personal property, and that the mortgage seemed to express a reference to the existence of this custom ***** On the contrary, the evidence shows that this mill site had peculiar adaptation and advantages as such, and had been long in use for that purpose, and that it is the custom to regard sites of this character as permanent, and all the machinery attached to the buildings thereon as a part of the realty. ***** The corresponding language in the deed from Coy to Blinn is: “Now, therefore, be it known that I, L. M. Coy, receiver, in consideration of three thousand seven hundred and fifty dollars, *** do hereby grant, bargain, and sell unto the said Horace Blinn, and unto his heirs and assigns, forever, the following described lands: ***; together with all the mills, machinery, tools, fixtures, appurtenances pertaining to the same. To have and to hold the same unto the said Horace Blinn, and unto his heirs and assigns, forever.” This means substantially (according to our view of it) the same as the expression, “and all the improvements thereon,” - a phrase of such common use in our Western country to denote whatever has the character of a physical fixture at the time, and is generally comprehended in the words “appurtenances,” “hereditaments,” etc., and in this case made to come under the last designation expressly in the habendum clause.

This case involving, the question, as the court put it, of improvements on land, is clearly indicative that fact questions as to the intention of the parties do exist and that evidence of custom may be admissible in deciding the question.

In holding that electric light fixtures in a theater constituted an improvement to the land under the mechanics and materialmen’s lien statute, this court turned its decision upon the intention of the lessee to make them a permanent part of the building, emphasizing the fact that they were so installed as to be incorporated into the building and became a component part of it, with the intention that they remain until they wore out. Other factors considered were their es-sentiality to the successful operation of the theater, their having been designed for that use, and their reasonable necessity for the purpose for which they were placed in the building. O’Neill v. Lyric Amusement Co., 119 Ark. 454, 178 S.W. 406.

In holding that the trial court correctly decided that a wagon scales apparatus consisting of a platform mounted over a concrete-lined pit, with a rod running into a house through a small hole in the floor became a part of the realty as between the vendor of the real estate and one who claimed under an unrecorded agreement with the vendor authorizing removal of the scales, we called attention to the fact that removal of the scales would leave an unsightly and dangerous hole on the premises and removal of the rod would leave a hole in the floor of the house. The importance of the manner of attachment to the building was emphasized in the opinion. Waldo Fertilizer Works, Inc. v. Dickens, 206 Ark. 747, 177 S.W. 2d 398,

In Dent v. Bowers, 166 Ark. 418, 265 S.W. 636, we considered the question whether a filling station, consisting of an underground tank and a gasoline pump attached thereto, on and under the street and. sidewalk adjoining a lot on which a garage building was situated, was a fixture which passed by deed to the purchaser of the lot as against the claim of ownership by a lessee who purchased from a former tenant. The trial court held in favor of the lessee. We reversed, holding that there was a clear preponderance of evidence showing that the filling station was a fixture, giving consideration to its character and use and the resulting presumption, in the absence of proof that the owner had annexed the filling station as a permanent accession to his land.

In Evans v. Argenta Building & Loan Assn., 180 Ark. 654, 22 S.W. 2d 377, the litigation was between the mortgagee in a mortgage on a house and lot and the seller of certain plumbing fixtures installed in the house under a contract with the owner by which the seller retained title. We said:

Here the testimony shows that, under the conditional sale whereby the title was reserved, the company installed certain lines of pipe by which pure water might be furnished and sewerage connections afforded, and there was also put in place in the bathroom a “closet combination, consisting of bowl, tank and seat.” The testimony is to the effect that these articles were attached to the floor and walls with screws and might be removed without material damage to the building or the premises, but the testimony also shows that to remove the pipe would leave holes in the floor and walls of the building and would require the excavation of the premises adjacent to the house, as the pipe had been placed in the ground. This latter work would disfigure the building and damage it, as well as the ground adjacent to it, and the right to remove the pipe does not exist. We perceive no reason, however, why the closet combination, consisting of the bowl, tank, and seat, may not be removed as their removal will cause no material damage to the property.

Greenwood, O’Neill, Dickens, Dent and Evans were considered authoritative in DePriest v. Peikert, 211 Ark. 460, 200 S.W. 2d 804. The property involved there was a “tourist camp.” The lessor sought cancellation of a lease of the property, alleging a breach, and sought to enjoin the lessee from removing a heating plant and waterworks system. The lessor relied upon a clause in the lease providing that all improvements on the buildings or lands made by lessees should become a part of the realty and remain on the lands. We said:

In the case at bar the water pipes and gas pipes, as well as the gas tank, have been laid underground, and the pipes have been conducted into the buildings through small holes. To take up the pipes and gas tank would necessitate digging up of soil covering them. The removal of the pipes from the buildings would inevitably inflict some damage on these structures.
We conclude that, as to the water and gas distribution lines and the gas tank, these articles were so affixed to the real estate as to become “improvements” within the meaning of this word as used in the lease and that appellees therefore do not have the right to remove same.
A different situation as to the water pump, motor and water tank is shown. This machinery is fastened by bolts to a concrete foundation and may be removed readily and without any damage to the realty. It did not under the circumstances shown become an improvement to a building or to the land as the terms were used in the contract.

In Bache, Recvr. v. Central Coal & Coke Co., 127 Ark. 397, 192 S.W. 225, we held that the question whether a tipple for removal of coal from a mine was a removable trade fixture or a part of the realty was for the jury. There was testimony that the tipple was an essential part of the machinery in the mine and connected with it, that essential machinery was supported by the tipple, and that this machinery and tipple constituted one connected unit necessary in the operation of the coal mine. There was also evidence that the tipple was so erected that it could be taken down and rebuilt.

Not too long ago, we held that light fixtures, carpeting, heating and air-conditioning equipment and display cases installed by a tenant for his own use and benefit could be removed by him, even though the removal left a bare exposed wall in the same condition he found it, emphasizing the fact that the tenant did not install these “trade fixtures” to enrich the freehold, the great latitude and indulgence accorded by the courts to a tenant’s claims in that regard, and the great significance of the test of removability based upon the intention of the party making the annexation and his situation and relation to the owner of the soil. Sparkman v. Eller, 249 Ark. 93, 458 S.W. 2d 129. See also, Arkansas Cold Storage & Ice Co. v. Fulbright, 171 Ark. 552, 285 S.W. 12. The importance of the intention of the improvement was emphasized in Romich v. Kempner Bros. Realty Co., 192 Ark. 454, 92 S.W. 2d 215 and W. B. Thompson & Co. v. Lewis, 120 Ark. 252, 179 S.W. 343. It is notable that it is recognized that the manner of attachment and the removability of machinery are circumstances to be considered in arriving at the intention of the parties.

Among other cases holding or recognizing that there was a question of fact are: British & American Mortgage Co. v. Scott, 70 Ark. 230, 65 S.W. 936; Kearbey v. Douglas, 215 Ark. 523, 221 S.W. 2d 426; Hoing v. River Valley Gas Co., 196 Ark. 1165, 121 S.W. 513.

I do not consider Alwes v. Richheimer, 185 Ark. 535, 47 S.W. 2d 1084, the case cited in the majority opinion, to be contrary to my position or the cases herein cited or to mandate the affirmance of the sustaining of the demurrer in this case. The concluding paragraphs in that case read:

Applying these principles, we think the articles enumerated above are fixtures because,not only are they attached to the building, but are used and are useful in connection with the operation of the building as a theater or moving picture show, the only purpose to which it is adapted.
We therefore agree with the trial court that said articles after being placed in the theater building and attached thereto became fixtures, lost their identity as chattels, and passed under the first and second mortgages without special enumeration, and were subject to foreclosure and sale as a part of the realty.

The bar of a statute of limitations cannot be raised on demurrer unless the complaint affirmatively shows upon its face not only that sufficient time has elapsed to bar the action, but that there are no facts or grounds that would avoid or take the case out of the operation of the statute. Gibson v. Gibson, 244 Ark. 327, 424 S.W. 2d 871; State, Use Glover v. McIlroy, 196 Ark. 63, 116 S.W. 2d 601; Rogers v. Ogburn, 116 Ark. 233, 172 S.W. 867; Hutchinson v. Hutchinson, 34 Ark. 164.

Since the allegations relating to the manner of attachment and the purposes and use of the storage tank do not conclude the matter or foreclose an inquiry into the basic facts in that regard and the intention of the parties shown by the circumstances, I would reverse the judgment.

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

      Westrock Mechanical Contractors, Inc., has gone into bankruptcy and the cause has not been revived in the name of the trustee in bankruptcy.


source: Caselaw Access Project

author: Conley Byrd, Justice.

license: Public Domain

text:
    PIONEER FINANCE COMPANY v. Nancy MURCHISON
    74-362
    521 S.W. 2d 524
    Opinion delivered April 21, 1975

      Sam Goodkin, for appellant.

      Harry A. Foltz, for appellee.

      Jim Guy Tucker, Atty. Gen., by: Lonnie A. Powers, Dep. Atty. Gen., Amicus Curiae.

   Conley Byrd, Justice.

At issue here is the validity of Acts 1953, No. 559 [Ark. Stat. Ann. §§ 67-1401 et seq (Repl. 1966)]. That Act makes it unlawful for any nonresident person, partnership or corporation to “engage in the business of lending money in the State of Arkansas by means of advertising over the radio, through the mails or by any other means of advertising” unless the nonresident posts a bond in the amount of $5,000, designates an agent for service and files a notice with the State Bank Department of an intention to engage in the business of lending money. Section 5 provides that any loan made either under the act or contrary thereto “shall be held to be an Arkansas Contract” and Section 6 makes null and void any contract made contrary to the Act.

The facts giving rise to this litigation were stipulated. Appellee, Nancy Murchison, a resident of Arkansas, went across the state line to appellant’s office in Arkoma, Oklahoma, and borrowed a stipulated sum of money. Since that time she has made no payments thereon and is in default. The loan arrangement is valid under the laws of Oklahoma. Appellant, Pioneer Finance Company, is an Oklahoma Corporation engaged in the business of lending money and as such does considerable advertising in the Fort Smith, Arkansas newspapers, Southwestern Bell Telephone Directory, etc.

The trial court held the Oklahoma loan contract void under Acts 1953, No. 559, and rendered judgment for appellee. Hence this appeal.

As can be seen from the foregoing recitations, the Act here in question imposes burdens upon nonresident lenders that are not applied to resident lenders.

Appellee recognizes that the transaction here involved is controlled by the commerce clause of the United States Constitution but relies upon Head v. New Mexico Board, 374 U.S. 424, 83 S. Ct. 1759, 10 L. Ed. 2d 983 (1963), as making this a permissible police regulation relating to the health, life and safety of the citizens of the State of Arkansas. In this connection appellee points to the annotation of the Head case appearing at 10 L. Ed. 2d 1388 as follows:

“Although it was suggested in some early commerce clause cases that any burden imposed upon interstate commerce by a state or municipality was unconstitutional, or that any “direct” or “substantial” burden on interstate commerce was unconstitutional, the currently accepted view is that a state or municipality, in regulating advertising, may constitutionally impose a burden on interstate commerce if there is (1) a sufficient local interest in the matter regulated, and a reasonable exercise of the ‘police power,’ (2) no discrimination against interstate commerce, and (3) no disruption of required uniformity as to regulation of interstate commerce.
Thus, in upholding advertising regulations the courts have often emphasized that (1) there was a substantial local interest in the matter regulated, and the ‘police power’ to regulate such matters as those affecting health, safety, and morals was reasonably exercised; (2) there was no discrimination against nonresidents or against interstate commerce; and (3) there was no disruption of required uniformity. On the other hand, where advertising regulations have been considered unconstitutional as applied to interstate commerce, it has been insufficient local interest in the matter regulated, or that there was interference with an area of interstate commerce which, if regulated at all, required uniformity of regulation.”

Appellee to get around the nondiscrimination requirement then argues:

“Applying the second part of the test to the instant case, there is no discrimination against interstate commerce because in effect this statute is simply making it impossible for a foreign lender who solicits loans from Arkansas residents by advertising to lend money at a higher interest rate than 10% and still enforce its contracts, just as Arkansas lenders are prohibited from doing. Whether a state unconstitutionally discriminates against commerce is to be determined, not by the ostensible reach of its language, but by its practical operation.”

In this argument appellee erroneously assumes that the prohibition set forth in Acts 1953, No. 559, is limited to contracts in excess of 10% interest per annum. As we read the Act it would void a non interest bearing contract.

Having demonstrated that the Act discriminates against interstate commerce, it follows that we must hold that it is invalid. Consequently, we need not reach the other arguments made with respect to the invalidity of the Act.

Reversed and remanded with direction to enter judgment according to the stipulated facts.

John A. Fogleman, Justice, concurring. I concur in the result. The first issue raised on this appeal questioned the applicability of Act 559 of 1953 [Ark. Stat. Ann. § 67-1401 - 1406 (Repl. 1966)]. The appellant does not have a place of business in Arkansas. It makes loans to Arkansas residents who come to apply for them at its offices in Arkoma and Sallisaw, Oklahoma. Appellee came to appellant’s place of business on September 24, 1973, and borrowed a sum of money and executed a promissory note and a security agreement. Act 559 makes it unlawful for a nonresident person, partnership, firm or corporation to engage in the business of lending money in the State of Arkansas by means of advertising without complying with the act. Ark. Stat. Ann. § 67-1401. It also provides that any such person, partnership, firm or corporation engaged in the business of lending money in the State of Arkansas by means of advertising shall be considered doing business in this state. Ark. Stat. Ann. § 67-1402. The engaging in the business of lending or attempting to lend money in the State of Arkansas without complying with the act is a misdemeanor. Ark. Stat. Ann. § 67-1404. It makes null and void any contract made contrary to the provisions of the act. Ark. Stat. Ann. § 67-1406. The loan was not made in Arkansas. The act is clearly not applicable in this case.

This being the case, there is no reason or justification for treatment of the constitutional issue. For more than 75 years this court had said that it would not and should not consider constitutional questions unless the answers were so necessary to a decision in the case that it could not otherwise be decided. We said so as late as 1972 in Board of Equalization v. Evelyn Hills Shopping Center, 251 Ark. 1055, 476 S.W.2d 211. The court discovered an exception theretofore non-existent in Arkansas in Wood v. Goodson, 253 Ark. 196, 485 S.W. 2d 213. That exception “is where the settlement of the controversy involves a matter of public importance.” I don’t know what this means, and I doubt that my brethren do. It seems to me that it will lead to ad hoc, case by case, decisions as to whether a question is of sufficient “public importance” to justify the court in exercising its power to construe the constitutions of Arkansas and the United States. It will inevitably produce whimsical and inconsistent determinations dependent upon current personnel of the court and its collective mood of the moment - something the judiciary should abhor as an impediment to the successful operation of a constitutional, tripartite government, and the rule of law.

Judicial restraint should be greatest when the judicial department is called upon, as it is here, to strike down a statute adopted by the legislative department, the primary policy making branch in our system of government and the repository of all powers of government not reserved to the people or assigned to another government or department of government.

I can only reiterate the protest I have registered in such cases as Grimmett v. State, 251 Ark. 270-A, 476 S.W. 2d 217; Wood v. Goodson, supra; GAC Trans-World Acceptance Corp. v. Jaynes Enterprises, Inc., 255 Ark. 752, 502 S.W. 2d 651.

In Wood v. Goodson, supra, we were called upon to strike down a judicial act, not a legislative one, as we are here. I submit that the public importance of the decision here is far less than was the case in Board of Equalization v. Evelyn Hills Shopping Center, supra, and in many other cases where this court has properly avoided the opportunity to exercise its powers to decide constitutional questions, particularly where doing so results in striking down a solemn enactment of a coordinate, coequal department of government.

If the loan had been made in Arkansas we would not have been presented with the constitutional question in this case. The loan would have been challenged as usurious. At least, we would have the matter before us in a different factual context.


author: Frank Holt, Justice.

text:
    Sonny Carl MUNN v. STATE of Arkansas
    CR 75-5
    521 S.W. 2d 535
    Opinion delivered April 21, 1975

      John Lineberger and John Barry Baker, for appellant.

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

This case arose from a head on collision in which two people were killed. A jury convicted appellant on two counts of involuntary manslaughter, Ark. Stat. Ann. § 41-2209 (Repl. 1964), and assessed his punishment at two years on each count in the State Department of Correction. Appellant first asserts for reversal of the judgment that the deputy clerk and the court improperly commented upon appellant’s right to remain silent. We must agree as to the comment by the court.

After the jurors were selected and sworn, the following discussion occurred:

THE COURT: All of the witnesses in this case, please stand and be sworn. Defendant is now in jeopardy.
(A deputy clerk, Mrs. Shipman, asks that the defendant be sworn, along with witnesses in the case.)
MR. LINEBERGER: I think we have the right to have him sworn at a later time.
THE COURT: Sure. Sure. He doesn’t have to take the stand at all if he doesn’t want to.

Appellant objected and asked for a mistrial which was refused.

In Russell v. State, 240 Ark. 97, 398 S.W. 2d 213 (1966), we said:

If the accused is to have the unfettered right to testify or not to testify he should have a correlative right to say whether or not his silence should be singled out for the jury’s attention.

In Mosby v. State, 249 Ark. 17, 457 S.W. 2d 836 (1970), the trial court commented during voir dire that the jury would be instructed at the close of the trial. There the court said “[O]ne of the instructions will be concerning the situation that the defendant did testify and in the event he didn’t testify concerning that situation.” In holding this constituted prejudicial error, we said:

Based upon the record before us, we cannot say whether the remarks of the court upon voir dire were invited or not. So, in that state of the record, the fact that the trial court brought appellant’s silence or non-silence as a witness to the jury’s attention during voir dire rather than during final instructions is of no consequence. The appellant’s ‘correlative right to say whether or not his silence should be singled out’ was infringed upon just the same. The prerogative of so alerting the jury was exclusively within the option of the appellant.

In the case at bar, the appellant’s right to testify or not to was brought to the jury’s attention by the court. That unfettered right belongs to appellant. The state argues that Russell and Mosby are inapplicable because the court’s remark was invited by appellant’s attorney. We cannot agree. His attorney was merely stating correctly that the appellant had “the right” to be sworn later.

Appellant next asserts that the trial court erred in allowing an excused witness to be recalled to the stand. Pursuant to Ark. Stat. Ann. § 43-2021 (Repl. 1964), both parties invoked the “rule.” The court then excluded the witnesses from the courtroom. A policeman testified for the state. He was excused by the state “to return to his duties.” However, unknown to the parties, he remained in the courtroom and heard other testimony before his presence was observed. Over appellant’s objection, the officer was recalled by the state and gave additional testimony which rehabilitated his earlier testimony.

The appellant relies on our recent cases. Reynolds v. State, 254 Ark. 1007, 497 S.W. 2d 275 (1973); and Vaughn v. State, 252 Ark. 505, 479 S.W. 2d 873 (1972). The appellee responds that it was discretionary with the court in permitting the witness to testify again upon recall. Cluhb v. State, 230 Ark. 688, 326 S.W. 2d 816 (1959); and Harris v. State, 171 Ark. 658, 285 S.W. 367 (1926). Suffice it to say that the witness’ presence in the courtroom after testifying is not likely to occur again upon a retrial.

Appellant next asserts that the court erred in permitting an investigating officer to give his opinion as to the direction the two vehicles were traveling when they collided. There was no eyewitness to the accident. A state policeman, who investigated approximately five accidents a week for eleven years, observed the skid marks and the resting places of the vehicles involved. When asked “[W]hat did you physically observe, officer,” he responded that appellant’s “vehicle was traveling toward Fayetteville.” In the circumstances, we cannot. agree that this experienced officer’s testimony, based upon his observation of the physical evidence at the scene, was speculative and invaded the province of the jury with respect to a factual issue.

Appellant next asserts that the trial court erred in allowing testimony about appellant’s blood analysis. Appellant’s contention is that a proper chain of custody was not proven. The blood sample was taken, sealed and labeled by a lab technician in the presence of a state police officer. The sample remained in the officer’s custody until it was delivered to Lt. Karl Martens of the Springdale Police Department. Martens testified that he put the sample in the refrigerator and stayed in the room until he made the analysis. After completion of the analysis, the vial was placed in an unlocked storage cabinet. There is no evidence of any tampering with the vial. Any access to it by others, in the circumstances, would bear only upon the credibility or weight of the evidence.

Appellant contends that the blood sample was drawn at a doctor’s request and, therefore, the doctor-patient privilege prevails. Ark. Stat. Ann. § 28-607 (Supp. 1973); and Ragsdale v. State, 245 Ark. 296, 432 S.W. 2d 11 (1968). The lab technician testified that the blood sample was taken by him at a doctor’s request. However, the investigating officer disputed this and testified that it was done only at his direction and in his presence. Furthermore, there is absolutely no evidence that the sample was taken for purposes of medical treatment. We find no merit in this contention.

Appellant also asserts that the state failed to prove that the blood test was performed according to methods approved by the Arkansas State Board of Health and Ark. Stat. Ann. § 75-1046 (b) and § 75-1031.1 (c) (Supp. 1973). There is evidence of substantial compliance with the Health Department rules and pertinent statutes. A qualified lab technician drew the sample. Pursuant to Arkansas State Department of Health rules (AP-210), he cleansed the skin with a nonalcoholic solution. The sample was placed into a container with an anticoagulent arid sealed pursuant to AP-213. The technician, who was familiar with these rules, labeled the vial as to the time it was drawn, the date and appellant’s name. AP-213. Pursuant to AP-215, the officer, who requested the sample, observed the extraction in order to testify as to authenticity. Lt. Martens refrigerated the sample when he obtained possession. AP-214. He is a certified operator and used a certified gas chromatograph for the analysis, a method approved by AP-315.

AP-210 requires that the sample be collected within two hours of the alleged offense. In this case, the most accurate testimony as to the time of the accident was 9:30 p.m. However, the victims were not administered to in the emergency room of the hospital until 11:30 p.m. The blood sample was drawn from appellant about 12:40 a.m. Lt. Martens testified on cross-examination that the longer one waits to run the blood alcohol test the percentage of alcohol decreases. Certainly, appellee has shown substantial com-plience and no prejudicial error is demonstrated.

Finally, appellant asserts that the trial court erred in overruling appellant’s motion for a directed verdict. In Burks v. State, 255 Ark. 23, 498 S.W. 2d 336 (1973), we reiterated our well established rule:

.... a directed verdict is proper only when no fact issue exists and on appeal we review the evidence in the light most favorable to the appellee and affirm if there is any substantial evidence.

Shortly before the accident, a witness observed appellant at a liquor store. To him, appellant acted drunk. “I told the man that I didn’t think that he was able to drive, and he told me to worry about my own business.” The liquor store is between the site of the accident and Prarie Grove. The state policeman observed the physical evidence, as previously indicated, and testified appellant was traveling toward Fayetteville. Another witness, on cross-examination, testified that appellant told him he was on his way to Springdale, which is in the Fayetteville direction. To travel toward Fayetteville, the proper lane of travel would be the right lane. The accident, a head on crash, occurred on the left side of the highway near the shoulder. In the other car were two people, who lived at Prairie Grove, and were pronounced dead on arrival at the hospital. The weight of alcohol in appellant’s blood was 0.16 percent, which is above the level considered to be a presumption that a person is intoxicated. Ark. Stat. Ann. § 75-1031.1 (a) (3) (Supp. 1973). The appellant was found within a few minutes following the accident unconscious and alone in his car which was on fire. The impact was so terrific that it left broken glass, debris and oil where it occurred. It appears from the exhibits that both cars were completely demolished. One witness testified that it took him approximately five minutes to extricate the appellant from his car.

It must be said that a jury could infer that the appellant was alone and driving toward Fayetteville. In Abbott v. State, 256 Ark. 558, 508 S.W. 2d 733 (1974). we said:

.... the question whether circumstantial evidence excludes every reasonable hypothesis other than an accused’s guilt is usually for the jury, and no greater degree of proof is required where the evidence is circumstantial. (Citing cases.) It is only when circumstantial evidence leaves the jury, in determining guilt, solely to speculation and in conjecture that we hold it insufficient as a matter of law. (Citing cases.) In testing its sufficiency, we must view it in the light most favorable to the state.

We are of the view the evidence is not insubstantial as a matter of law and that it constituted a factual issue for the jury’s determination.

Reversed and remanded for the error indicated.


author: Carleton Harris, Chief Justice.

text:
    GARRISON MOTOR FREIGHT, INC., et al v. MISTLETOE EXPRESS SERVICE
    74-293
    521 S.W. 2d 830
    Opinion delivered April 28, 1975

      Louis Tarloivski and Charles J. Lincoln 11, for appellants.

      Hardin, Jesson & Dawson and Max G. Morgan and T. M. Brown, Oklahoma City., for appellee.
   Carleton Harris, Chief Justice.

By application filed with the Arkansas Transportation Commission, Mistletoe Express Service of Oklahoma City, appellee herein, sought a certificate of public convenience and necessity as a motor carrier, intrastate in “express service” limited to shipments not exceeding 350 pounds. The application embraced 14 separate and distinct routes of a wide area of this state. Originally, 19 companies protested at the hearings held by the commission, and 36 witnesses testified on behalf of the public. Subsequent to the conclusion of the hearing, the commission granted the application with certain modifications, and from that order, appellants appealed to the Pulaski County Circuit Court. Upon that court’s affirmance of the commission order, appellants have appealed to this court. For reversal, appellants rely upon one point, viz-, “That the judgment of the Pulaski Circuit Court, Second Division, made and entered herein, is contrary to the preponderance of the evidence of record, insofar as it relates and pertains to the specific routes and points served by the appellants, and public convenience and necessity have not been proved for these routes and points.” In other words, protestants’appeal relates only to those routes affecting its operations.

In granting authority requested by Mistletoe, the commission made the following pertinent findings:

“(1) No shipment shall exceed 350 pounds from any one consignor to any consignee on any one day; (2) The holder shall be precluded from filing volume rates. Its charge shall be graduated from 1 pound to 100 pounds and shipments exceeding 100 pounds shall be assessed at the weight times the applicable 100 pound rate. ***
“Applicant is a wholly owned subsidiary of the Oklahoma Publishing Company. It has operated over 40 years as a motor common carrier of general commodities moving in express service. Intrastate service is conducted in Kansas, and it holds certain interstate operations between points in Texas, Oklahoma, Kansas and Missouri. An application for interstate authority in Arkansas which generally duplicates the intrastate authority sought in this application was approved by I.C.C. on July 12, 1973, Docket No. MC 42405 (sub 29). *** It proposes to handle primarily small shipments, including articles of unusual value. Rates proposed will be generally higher than those of other motor carriers asserting that freight artificial mínimums and single shipment charges make higher freight charges at lesser weight. It will have no minimum charge but will have a progressive rate structure beginning at one pound and progressing by pounds to 100 pounds. Its liability for loss or damage would be limited to $50.00 per shipment or fifty (50) cents per pound unless a higher value is declared in which event a charge would be made for excess value declared.
“Operating schedules will be published showing arrival times and departures which will be changed only upon notice to the public. Service will be provided five days a week with deliveries on Saturday morning. Daily schedules will be provided from Fort Smith to Little Rock, Little Rock to Pine Bluff and Hot Springs, and Fort Smith to Paris, Booneville, Waldron and Greenwood. An agent will be provided at each service point who will perform an overnight delivery service. A company terminal would be established at Little Rock to which would be assigned four road units and five pickups. One pickup would be based at Pine Bluff, Hot Springs, El Dorado, Magnolia and Camden; Texarkana would be assigned two pickups and one road unit. It is planned to initially base three road units at Fort Smith, one each at Rogers, Pine Bluff, El Dorado, and Magnolia. Applicant has a consistent safety program under the direction of a safety supervisor.”

It was then stated that the rates which applicant proposed to apply were based upon the block system used by REA Express, and this system was explained. The commission then extensively reviewed the testimony of a large number of witnesses, followed by a review of the operations of those protesting, including appellants, it being pointed out that figures rendered by these companies, projected on an annual basis, reflected that, as to Superior, about 0.7% of the company’s annual revenues would be subject to diversion by the granting of the application, about 2.1% of Garrison Motor Freight, Inc. would be subject to diversion, and 5.7% of Midway’s revenues would be subject to diversion. The following findings were then made:

“The Commission feels that the service proposed by the Applicant is a new and additional service which is different from the service of the general commodity carriers, bus companies, and small parcel carriers. This is in line with requirements that a certificate of public convenience and necessity may be granted only when existing service is inadequate, or additional service would benefit the general public, or the existing carriers have been given an opportunity to furnish the additional service required and have failed to do so. The proposed service of the Applicant differs from the service of general commodity carriers in that there is no minimum charge and more convenient schedules áre offered in the service proposed by the Applicant. It is well established that if the primary or sole justification for a grant of authority is that existing rates are too high, or that the proposed service will be less expensive to shippers, the application will be denied. ***
“Upon consideration of all evidence of record, and of the briefs filed by counsel, we find: Applicant is fit, willing and able financially and otherwise properly to perform the proposed service; that present and future public convenience and necessity require the proposed service to the extent hereinafter authorized, and, that the application should be granted as ordered, and in all other respects denied.”

In arguing for reversal, appellant calls attention to the fact that it is a rule of universal application in transportation matters that rates are not a factor to be considered in applications seeking certificates of public convenience and necessity, unless such rates are so excessive as to constitute an embargo of the involved traffic. We agree with this argument, and accordingly a discussion of the cases cited by appellant is not necessary. The commission itself apparently gave but little consideration to this phase of the case, stating that minimum rates were only considered as to some small items where the proof reflected that the minimum charge imposed by common carriers exceeded the value of the items shipped which, in the case of some shippers, had resulted in inability to solicit certain small accounts.

It is argued that there has been no showing that existing motor carrier service is inadequate to meet the reasonable transportation requirements of the supporting shippers, and that complaints have pertained only to minimum rates upon small weight shipments. Perhaps at this point, it would be well to review the applicable law in transportation cases. In the landmark case of Santee v. Brady, 209 Ark. 224, 189 S.W. 2d 907, we said:

“This court tries this case de novo, and renders such judgment as appears to be warranted and required by the testimony. Such is the provision in §2020, Pope’s Digest, and the holding in Mo. Pac. Rd. Co. v. Williams, and also in Potashnick Truck Service v. Mo. & Ark. Transportation Co.
‘The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.’ ”

It was then pointed out that public convenience and necessity should be the first consideration and the interest of public utilities already serving the territory secondary. We then quoted 42 C.J. 687 with approval, as follows:

“‘The necessity for the proposed service must be considered as well as the added convenience thereof, although the word “necessity” is not used in this connection in the sense of being essential or absolutely indispensable, but in the sense that the motor vehicle service would be such an improvement of the existing mode of transportation as to justify or warrant the expense of making the improvement.’”

Subsequently, in the same opinion, we restated the general rule and emphasized the word “or” as follows:

“‘The general rule is that a certificate may not be granted where there is existing service in operation over the route applied for, unless the service is inadequate, or additional service would benefit the general public, or unless the existing carrier has been given an opportunity to furnish such additional service as may be required.’ (italics our own.)
“The opportunity to the existing carriers is in the disjunctive sense of ‘or’ rather than the conjunctive ‘and.’ In other words, the certificate may issue if public convenience and necessity be shown, even if there be already existing service [Our emphasis], provided the Commission finds either:
a. that the present service is inadequate; or
b. that additional service would benefit the general public; or
c. that the existing carrier has been given an opportunity to furnish additional service as may be required.”

The present permit comes under “b”, i.e., additional service would benefit the general public. As pointed out by the commission, the general effect of the testimony of most of the witnesses who appeared in support of the application was that they were not presently receiving pickup and delivery service and the witnesses mentioned the slowness of general freight service, together with inconsistent delivery periods and the inconvenience and limitations (size and weight limitations) imposed by bus carriers and U.P.S.

The proposed service differs in several respects. As far as schedules are concerned, Mistletoe proposes to provide overnight and same-day service on published schedules which are to be rigidly observed in its operations. The service of the freight lines does not have an established schedule and the evidence shows that deliveries vary from overnight to two to three days. Mistletoe will furnish local pickup and delivery service at each point served while appellants provide local pickup and delivery service in only a few of the larger cities. Likewise, Mistletoe will have a representative in each town served while appellants provide this service only in the cities where they maintain terminals. While the minimum rate of the freight lines precludes some shippers of small items from using these common carriers, actually shipments over 150 pounds carried by Mistletoe will exceed charges of appellants. It also appears that shippers of the small items, prior to the approval of Mistletoe’s application, were largely using bus and small package carriers (not parties to this appeal) with the result that the permit to Mistletoe, even if it should obtain all the traffic at issue (which is hardly likely), would not really deprive the freight lines of any great amount of business. This is reflected by the evidence of the revenues appellants derive from their respective businesses annually.

Appellants suggest that it is doubtful that the commission has jurisdiction to limit the proposed service to shipments not exceeding 350 pounds, but no authority is cited, nor is any provision of the act mentioned in support of this contention.

We conclude that the finding by the commission that the service proposed is a new and additional service, different from the service of the general commodity carriers, and will benefit the general public, is not against the preponderance of the evidence.

Affirmed.

Holt, J., not participating

      Garrison protested routes 1, 2 and 3 of the application as follows:
      “1. Between Fort Smith and Conway, over U.S. Highway 64.
      2. Between Fort Smith and Harrison, over U.S. Highway 71 to Rogers; thence over U.S. Highway 62 to Harrison.
      3. Between Conway and Pine Bluff, over U.S. Highway 65. Since the application seeks the authority to serve intermediate points, Little Rock is involved in Route 3.”
      Superior Forwarding Company, Inc., covered the following routes:

        “3. Between Little Rock and Pine Bluff.
      4. Between Little Rock and Sheridan.
      5. Between Pine Bluff and Sheridan.
      7. Between Little Rock, Benton, Malvern and Arkadelphia.
      9. Between Little Rock, Benton and Hot Springs.
      10. Between Pine Bluff and Hot Springs.
      Serving all intermediate points upon the foregoing routes.”
      Midway Motor Freight Lines, Inc. was interested in the following:
      “5. Between Fort Smith and Texarkana, Arkansas.
      7. Between Texarkana and Little Rock, Arkansas.
      10. Between DeQueen and Little Rock, Arkansas.”

      This was the authority sought.

       The common carriers have a minimum charge of about $6.00 for each item, irrespective of the weight.

       United Parcel Service.

       It is also interesting to note that though possessing the authority, the record reflects that Garrison does not render any service between Little Rock and Pine Bluff, nor between some additional points in Eastern Arkansas.


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

text:
    Carl and Doris COBB, as individuals and next friend of Carla Ann COBB, a minor v. INDIAN SPRINGS, INC., an Arkansas corporation, James Tillman BABBITT and Danny Lee CREED
    74-297
    522 S.W. 2d 383
    Opinion delivered April 28, 1975
    [Rehearing denied June 2, 1975.]

      Pierce, Robinson, McCord & Rotenberry; Lamb & Frazier and Richard L. Mallison, for appellants.

      Laser, Sharp, Hale, Young & Boswell, P.A., for appellees.
   Carleton Harris, Chief Justice.

On the night of October 21, 1972, shortly before or after midnight, Carla Ann Cobb, age 16, was struck by a vehicle driven by Danny Lee Creed, the incident occurring near a bus stop in the Indian Springs Mobile Home Park in Saline County, said park being owned by appellee, Indian Springs, Inc. Earlier in the evening, Miss Cobb had been picked up while walking on a street of the park by James Tillman Babbitt, a security guard employed by the corporation, who subsequently transported her to the bus stop. Babbitt had parked his station wagon completely off the paved roadway on the grass of the shoulder, and was standing near the car when Miss Cobb, also standing by the car, was struck by Creed’s automobile, a 1964 Mercury Comet, which he had just purchased. Injuries were sustained by Carla Ann and subsequently Carl and Doris Cobb, her parents, instituted suit individually and as next friend of Carla Ann, seeking damages against Creed, Babbitt, and Indian Springs, Inc., the complaint asserting that the injuries suffered were the proximate result of joint acts of negligence of the three, and that Babbitt, at all pertinent times, was acting in the course and scope of his employment with Indian Springs. Indian Springs and Babbitt answered denying material allegations, other than the fact that Babbitt was an employee of the corporation, but Creed, a minor 16 years of age, was not personally served, though summons was issued, and did not answer. Subsequently, it being called to the attention of the court that Creed was a minor, a guardian ad litem was appointed in his behalf and this guardian filed an answer denying the material allegations of the complaint. Thereafter, the answer by Indian Springs and Babbitt was amended, setting up the defenses of contributory negligence and assumption of risk; a further amendment asserted that the parents of Carla Ann were negligent in failing to exercise ordinary care for the safety of their daughter, alleging that such parents had failed to exercise proper supervision or control, having had the opportunity to do so. The guardian ad litem filed his report, stating that he had notified Creed at his last known address in Hot Springs by certified mail of the pendency of the action and had enclosed a copy of the complaint; that the letter was returned with the notation, “Moved, left no address.” The attorney for appellants executed an affidavit, setting out the steps taken to obtain service on Creed, wherein he stated that a summons had been sent to the sheriff of Garland County showing Creed’s last known address in that city, but had been returned “non est”, reflecting that the defendant (according to the affiant) had absented himself from the State of Arkansas. Thereafter, according to the affidavit, pursuant to the provisions of Ark. Stat. Ann. § 27-342.2 (Repl. 1962), service was had upon the Secretary of State as agent of service for Creed and notice of the service and a copy of the process were sent by registered mail to Creed at his last known address. Appellees objected to Creed being made a party defendant and after a discussion of the matter in chambers, the trial judge, in open court, announced that he had determined, as a matter of law, that proper service had not been had upon Creed and he was accordingly no longer a party to the litigation. After the submission of proof to the jury on the part of appellants, appellees moved for a directed verdict, which motion the court granted, directing the jury to find for Indian Springs, Inc. and James Tillman Babbitt, the jury so finding. Judgment was accordingly entered and from such judgment, appellants bring this appeal. Two alleged errors are presented, viz-, first, that the trial court erred in directing a verdict in favor of appellees, and second, that the trial court erred in excluding Danny Lee Creed as a party to the action.

Ten witnesses testified on behalf of appellants, but only five testified about events relating to the manner in which the accident occurred, viz., Carla Ann Cobb, Stephen Moore, DeWayne Moore, Debbie Steele, and Ronald Anderson, a deputy sheriff of Saline County.

Carla Ann testified that she and a girl friend, on the night in question, went to the park clubhouse where recreation was regularly provided; that her parents told her to be back home by midnight, and that the clubhouse closed at 10:00 P.M.; she and the friend went over to the swings for a while which are located near the clubhouse, then started walking to Arrowhead Road. There, the security guard, Babbitt, picked them up in the park station wagon. She said Babbitt’s job included supervision of the young people in the clubhouse and that there was a 10:00 P.M. curfew, i.e., she was not supposed to be out on the streets after that hour. Babbitt mentioned that fact to them, and they got into the car. Several other youngsters were in the car, and they first rode through the trailer park, around through the shopping center, took two of the youngsters home, her friend still being in the car with her, and drove to the bus stop. There they found Debbie and DeWayne. Babbitt talked with these two for a few minutes, and those in the car then left, drove around, Babbitt making further rounds in checking as security officer, and subsequently returned to the bus stop, pulled off in the grass, and stopped. According to Carla Ann, they were two or three feet from the blacktop. Two other boys drove up and asked the two girls to go with them to an eating establishment, but Carla Ann advised that she was to be in at 12 o’clock and could not go. Her friend got in the car with the boys and Carla Ann walked back to Babbitt’s car and leaned up against it. She said Danny Creed pulled up in his automobile and engaged in conversation with Babbitt. According to the witness, Babbitt wanted to drive Creed’s car but she said the latter refused, stating that, “He just got tags on it that day and he didn’t want anybody to drive it.” Carla Ann added:

“Big Jim [Babbitt] told him, ‘Well, if you won’t let me drive it, take it down to the dairy bar and run it back up here and see what it will do.’ He told him, he said, T want you to shut it down before you come over that hill because there is a gas line or something.’ Some kind of gas pipe and he was scared he would hit them.”

Carla Ann testified that Creed then got in his car, turned it around, and drove out of sight; that he then came back up the road, and though she couldn’t see him, she could hear him. According to the witness, Babbitt remarked that Creed was “going to hit those gas pipes or kill somebody in the trailers or either himself ***. ” She said Creed “came over the hill and kept on coming like there wasn’t nothing in his way.” The witness related that DeWayne Moore ran out in front of him; Creed slammed on his brakes and the car started “fishtailing”; that she was standing on the grass by the street and thinking Creed was going to “go in front” of the station wagon, started to turn around and run; however, the car driven by Creed “run up the side” of the station wagon and struck her as she turned. Carla Ann stated that the speed limit coming into the park was 25 miles per hour, and the maps reflect speed limits in the park to be 25 and 20 miles per hour.

William Stephen Moore, one of the youngsters who was present when the accident occurred and who had ridden to the bus stop with Danny, testified that Danny drove up to the bus stop and talked with Babbitt about his car.

“Well, they were just talking about when his car was running real good and he just got it and seen what kind of motor it had in it, a V-8 and four speed and that it ran pretty good. ***
“Well, we were talking about running cars and how good it would run and how fast it would run through the quarter. What I heard may not be what someone else heard. ***
“I heard Big Jim ask to see if he could drive his car and Danny said, no he just got it and didn’t have no insurance on it and it was the first car he ever had and he didn’t feel safe with anybody else driving it. Danny said, ‘No.’ The next thing I knew Danny was in the car.”
As to the accident, Stephen said:
“Well, we were sitting around there and I didn’t hear much conversation and all of a sudden started hearing, you know, tires squealing and the engine roaring and I see him top the hill and my brother DeWayne jumped out there to wave him down so he would slow down and then Danny locked up his brakes and hit Big Jim’s car.”

Debbie Steele (then Debbie Medlin), who along with Stephen Moore and his brother DeWayne, was with Creed until reaching the bus stop, testified that she heard Babbitt ask Danny if he could drive the car to which the latter responded, “No”, and that somebody said “Go down to the end of the street and see how fast it will run; that Babbitt said, ‘Shut it down when you top the hill.” She was not sure who commented about how fast the car could go, but when asked, to the best of her recollection, who had made the remark, Debbie replied:

“Well, I can’t really say because everybody said that Jim said it. I wasn’t watching and I wasn’t talking in their crowd. We were standing off talking to Steve Moore and I think Carla was there. They were talking about the car and I couldn’t tell who said it and I couldn’t tell by voices who said it. I heard somebody say it and I don’t know who.”

Further, from the record:

“Q You know how far he [Creed] went down the road?
A Yes. He went to Joe and Ray’s Super Market and he turned around in that parking lot and he started from there. I guess at the end of the street is where he started.
Q Did you hear something?
A Squalling tires.
Q, Did you hear an accelerated motor?
A Yes, sir.
Q,I believe he was out of sight, over the crest of the hill?
A At the bottom of the hill he would have been out of sight but all down the street where he was you could see the car.
Q Did you at some point see it coming back?
A Yes, sir.
Q Was it going fast or slow?
A Fast.
Q, What happened then?
A Well, he topped the hill and it didn’t look like he was shutting it down and I heard somebody say, ‘That’s a gas main setting over there.’ The street is here and a gas main over there. DeWayne Moore went out in the street and was waving his hands trying to get him to stop. He locked his brakes and swerved to this side. He came back toward the station wagon. I was sitting on the hood in the front. The rest of them were standing in the back. It happened so fast. That is all I can say. He started toward the car and I started backing up on the hood and that is all I could see. Then I heard the crash. I guess I shut my eyes. I don’t know.”

Dewayne Moore, who had been let out at the bus stop, and was present when the accident occurred, testified that Danny and Babbitt had conversation about Danny’s car.

“Well, we drove up and Jim asked how it ran. Danny said, ‘All right.’ He asked if he could drive Danny’s car. Danny said, no because he didn’t have any insurance. He asked him to go down there by the store, the dairy bar at Pikewood, turn around and come back and when he got on top of the hill, shut if off. ***
“He said, ‘Shut it down on top of the hill’ or ‘before you get to the hill.’”

Strangely enough, Moore was never asked why he ran out and tried to stop the car.

Deputy Sheriff Ronald Anderson testified that the distance from where Creed stated that he had “locked his brakes”, to the point where Carla Ann was struck, reflected that the Creed automobile slid 120 ft. The witness stated that Creed said he had just acquired the car and “he was trying it out.” Further:

“I believe I asked him if he seen the girl and he said, T was going so fast’, he said, T seen somebody standing on the road and I tried to swerve’ and he said he was sliding and couldn’t control his car. ***
“He didn’t argue with me or nothing. He told me what he had done. He was sorry for it and all this. He told me wasn’t any excuse for that type driving.”

We have reached the conclusion that the court erred in directing a verdict. In Restatement of the Law, Torts (1939), § 876, p. 435, we find:

“For harm resulting to a third person from the tortious conduct of another, a person is liable if he
(a) orders or induces such conduct, knowing of the conditions under which the act is done or intending th<p consequences which ensue, or
(b) knows that the other’s conduct constitutes a breach of duty and gives substantial assistance or encouragement to the other so to conduct himself, ***”

Comment under Clause (b) is as follows:

“b. Advice or encouragement to act operates as a moral support to a tortfeasor and if the act encouraged is known to be tortious, it has the same effect upon the liability of the adviser as participation or physical assistance. If the encouragement or assistance is a substantial factor in causing the resulting tort, the one giving it is himself a tortfeasor and is responsible for thé consequences of the other’s act. This is true both where the act done is an intended trespass and where it is merely a negligent act. The rule applies whether or not the other knows his act to be tortious. It likewise applies to a person who knowingly gives substantial aid to another who, as he knows, intends to do a tortious act.
The assistance of or participation by the defendant may be so slight that he is not liable for the act of the other. In determining this, the nature of the act encouraged, the amount of assistance given by the defendant, his presence or absence at the time of the tort, his relation to the other and his state of mind are all considered.”

Let us see how the facts in the case before us comport to the authority just cited. The first important fact is that a jury could certainly find Babbitt initiated, by his words, the sequence of events, or the act (reckless driving) which resulted in the injuries to Carla Ann, i.e., Creed did not suggest that he would like to show everybody what his automobile could do in the way of speed; to the contrary, the suggestion came from Babbitt. A jury could have found that Creed would not have driven the car at a high speed in the Indian Springs area except for the suggestion made, in other words, that Babbitt’s encouragement was a substantial factor in causing the resulting tort. Since there was testimony that Babbitt told Creed to “run it back up here and see what it will do”, a jury could have found that the security guard had suggested that Creed drive the car at his highest speed, through recognizing possible danger by telling Creed to “shut it down before you come over that hill because there is a gas line or something.”

Also, the jury might well take into consideration Babbitt’s position of authority which possibly could have been a factor influencing Creed to demonstrate the speed of his automobile. This was not a case of one of his fellow students, or young friends, suggesting that he drive the car at high speed, but rather, encouragement from the individual who was in charge of park security, and a person apparently, from the record, held in respect by the young people. Let us use an illustration. A certain high school prohibits operation of a motorcylce on school grounds. A student has a new motorcycle which he would like to show off. Fellow students are on the grounds. Of course, fast driving could be dangerous to those students on the grounds. While the owner, though desiring very much to exhibit the speed of his vehicle, might ignore the suggestion of a fellow student that he proceed, would he not be more inclined to disobey the regulation if one of the teachers suggested that he “show what the motorcycle could do”?

As to foreseeability, it was only necessary that Babbitt, at the time the suggestion was made, foresee an appreciable risk of harm to others. See AMI 2d Ed., § 301, p. 25. The testimony has been fully set out, and we are unwilling to say, under this testimony, as a matter of law, that Babbitt could not foresee injury to Carla Ann.

In the Connecticut case of Carney v. DeWees, 136 Conn. 256, 70 A. 2d 142, the rationale for imposing liability was the section in Restatement of Torts heretofore set out. There, suit was insituted by an administratrix of a deceased person who was killed when thrown from the body of a truck in which he was a passenger, the truck being in pursuit of a vehicle with which the driver was racing. Prior to the accident, the driver of the lead vehicle, an automobile, had refused, by occupying the left lane and accelerating his car, to permit the other to pass. Judgment was obtained against the driver of the automobile and the Supreme Court of Errors affirmed, holding that the car driver operated his car in a manner that he knew would provoke the truck driver and incite him to attempt to pass, and that as a consequence, the two drivers were participating in a contest of speed. Several other racing cases are cited in the opinion. In the North Carolina case of Boykin v. Bennett, 118 S.E. 2d 12, the court quoted from Blashfield: Cyclopedia of Automobile Law and Practice, Perm. Ed., Vol. 1, § 761, p. 706.

“If two or more persons, while racing automobiles upon a public highway in concert, injure another traveler or bystander, they are individually liable for the damage or injury so caused, although only one of the vehicles engaged in the race comes in contact with the injured person or the vehicle in which he is riding.”

In the Georgia case of Landers v. French’s Ice Cream Company, 106 S.E. 2d 325, two automobile drivers were racing. A child was struck by one of the automobiles which, at the time, was behind; in fact, the lead car had already passed the child when he was struck by the second vehicle. Suit was instituted against both drivers (as well as the owner of a truck illegally parked along the highway). The lead driver, who was past the point when the accident occurred, demurred to the complaint and the trial court sustained the demurrer. On appeal, the Supreme Court of Georgia reversed, holding that the racing of motor vehicles constitutes negligence and all engaged are liable for an injury sustained to a third person as a result thereof, irrespective of which of the racing cars actually inflict the injury. Several cases in support of the finding are cited, including the Virginia case of Oppenheimer v. Linkous’ Adm’x, 165 S.E. 385, from which the Georgia court quoted as follows:

“If these men, however, had not been racing Linkous would be alive to-day. His death is directly due to the failure of Oppenheimer’s chauffeur to note the passing signal from the Smoot car. (The Smoot car struck Linkous.) He saw fit to invite a race which was not only a proximate cause of the accident but the sole proximate cause.”

We recognize that the instant litigation does not involve racing between two individuals, but could not a jury, in considering the facts herein enumerated, come to the conclusion that Creed, encouraged and incited by Babbitt to demonstrate the speed of his car, engaged in the tortious conduct complained of and that Babbitt was thus guilty of negligence? Could not a jury validly find that both Creed and Babbitt were tortfeasors who, by concurrent acts of negligence, though disconnected, were guilty of acts which were the proximate cause of the injuries sustained?

Appellee argues that even if Babbitt were negligent, there was an independent intervening act which was the proximate cause of Carla Ann’s injuries but we need not discuss this contention for the matters of intervening cause and foreseeability are questions, under the evidence herein, for a jury to pass upon. We only hold that, under the proof offered, a jury question was presented.

As to the second point, appellees had no standing to raise the issue of whether Creed had been properly served but discussion is unnecessary since the case is being reversed. It may be. that Creed can now be served; to say the least, appellants will again have the opportunity to show the steps taken to obtain service and offer further evidence as to the whereabouts of Creed.

In accordance with what has been said, the judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

Fogleman, J., concurs.

George Rose Smith, J., dissents.

John A. Fogleman, Justice,

concurring. I must concur in the result only because I cannot say from the testimony as abstracted that Babbitt did not owe a duty to Carla Ann Cobb or anyone else who stood alongside the vehicle Babbitt parked on the grass. Appellee appropriately argues the foreseeability test, saying that a very unusual sequence of events produced this injury and that Babbitt could not reasonably foresee this unusual combination, i.e.,

(a) that Danny Creed would disobey his instructions to “shut it off at the top of the hill”;
(b) that DeWayne Moore would unexpectedly project himself into the path of the Creed vehicle;
(c) that the Creed vehicle would leave the paved roadway; and
(d) that Carla Cobb, who was completely off the pavement on the grass, was in a place of danger.

When viewed in the light most favorable to the appellant, with all doubts resolved in her favor, it would be difficult to say, as a matter of law, that one in Babbitt’s position could not reasonably have foreseen all of these factors. Carla Cobb was between the paved drive and the Babbitt vehicle, which may have been no more than two feet from the edge of the pavement. It is at least debatable that it might have been foreseen that someone would have attempted to flag down the speeding young driver if it appeared that he was “coming like there wasn’t nothing in his way” and was about to run into the “gas line where it made a ‘T’”, which seems to have been in proximity to the bus stop where Babbitt’s vehicle was parked. It was a normal human reaction and not an efficient intervening cause. See Hartsock v. Forsgren, Inc., 236 Ark. 167, 365 S.W.2d 117; Hill v. Wilson, 216 Ark. 179, 224 S.W. 2d 797. And perhaps there might have been reason to foresee that the youth, anxious to show what the first automobile he ever owned would do, might become so exhilarated with the actual high-speed performance of this object of his pride that he would fail to heed the instruction to “shut it down before he came over the hill.” The top of the hill also seems to have been in the vicinity of the Babbitt vehicle.

I cannot join in the majority opinion for two reasons. One of them is the injection of the “but for” test through a case from a sister jurisdiction. And then while I can agree with the theory of negligence based upon § 876 of the Restatement of the Law of Torts espoused in the majority opinion, to me the real question on this appeal is the test of negligence by foreseeability, to which I believe the majority concedes this theory of negligence to be subject. However, I agree that this test in this case is not whether Babbitt, or one in his position, should have reasonably foreseen injury to others, and that it does turn upon the question whether he should have reasonably foreseen injury to Carla Ann Cobb, or one in her position.

There can be no negligence unless the actor breaches a duty on his part to protect the plaintiff, individually or as as a member of a class or group, from injury. 65 CJS 464, 475, 499, Negligence §§ 2 (1), 4 (1), 4 (10); Rice v. King, 214 Ark. 813, 218 S.W. 2d 91; Union Securities Co. v. Taylor, 185 Ark. 737, 48 S.W. 2d 1100.

Duty, however, is not limitless. 65 CJS 486 Negligence § 4 (2). It is limited to the risk reasonably to be foreseen. 65 CJS 486, 488, 520 Negligence §§ 4 (2), 4 (3), § 5 (4). In St. Louis-San Francisco Ry. Co. v. Ward, 197 Ark. 520, 124 S.W. 2d 975, we quoted from St. Louis-San Francisco Ry. Co. v. Burns, 186 Ark. 921, 56 S.W. 2d 1027, a clear statement of the rule, i.e.,

. . .the care required is only to provide against such dangers as ought to be foreseen in the light of the attendant circumstances, and the ideal ‘prudent person’ will therefore not neglect what he can foresee as probable nor divert his attention to the anticipation of events barely possible, but will order his conduct by the measure of what appears likely in the ordinary course of events.

See also, Dollins v. Hartford Accident & Indemity Co., 252 Ark. 13, 477 S.W. 2d 179.

In my opinion the appropriate test, insofar as the appellant is concerned is that stated in the oft-cited case of Palsgraf v. Long Island R. Co., 248 N.Y. 339, 162 N.E. 99, 59 ALR 1253 (1928). Even when an act constitutes a wrong as to someone else, it is not negligence as to a plaintiff in a personal injury action, if there was no reason to believe that there was any risk of bodily insecurity to the plaintiff. In the opinion in Palsgraf, Mr. Justice Cardozo said:

. . . .What the plaintiff must show is “a wrong” to herself, i.e., a violation of her own right, and not merely a wrong to someone else, nor conduct “wrongful” because unsocial, but not “a wrong” to anyone. We are told that one who drives at reckless speed through a crowded city street is guilty of a negligent act, and therefore of a wrongful one, irrespective of the consequences. Negligent the act is, and wrongful in the sense that it is unsocial, but wrongful and unsocial in relation to other travelers only because the eye of vigilance perceives the risk of damage. If the same act were to be committed on a speedway or a race course, it would lose its wrongful quality. The risk reasonably to be perceived defines the duty to be obeyed, and risk imports relation; it is risk to another or to others within the range of apprehension.
. . . .The range of reasonable apprehension is at times a question for the Court, and at times, if varying inferences are possible, a question for the jury.
. . . .One who seeks redress at law does not make out a cause of action by showing without more that there has been damage to his person. If the harm was not willful, he must show that the act as to him had possibilities of danger so many and apparent as to entitle him to be protected against the doing of it though the harm was unintended. Affront to personality is still the keynote of the wrong.

There is a definite trend in this country toward acceptance of the Palsgraf rule. Prosser, Law of Torts, 4th Ed., 258, § 43. As a matter of fact, it is the position taken in Restatement of the Law, Torts 2d, § 281, Comment c. There is a very cogent, and perhaps unintentionally favorable, argument for the Palsgraf rule in Professor Prosser’s comments in his words found at p. 263:

... .It is still inconceivable that any defendant should be held liable to infinity for all of the consequences which flow from his act, and some boundary must be set. If nothing more than “common sense” or a “rough sense of justice” is to be relied on, the law becomes to that extent unpredictable, and at the mercy of whatever the court, or even the jury, may decide to do with it.

Although Professor Prosser feels that determination of the question of duty is always one for the court, it seems to me that Justice Cardozo stated the preferable rule in the quotation above. Following it, I must concede that on the record abstracted, there was at least a jury question.

       Miss Cobb married subsequent to the filing of the complaint and her surname became Boryschtsck, but she will be referred to throughout this opinion by the name of Cobb.

       Carla Ann mentioned that the young people had ridden with Babbitt before, having requested if they could make his “rounds” with him.

       Prosser, Law of Torts, 289, § 45.


author: George Rose Smith, Justice.

text:
    Ed STOREY v. Peggy WARD
    74-296
    523 S.W. 2d 387
    Opinion delivered April 28, 1975

      Tales & Turner, for appellant.

      Hardin Jesson & Dawson, for appellee.
   George Rose Smith, Justice.

The only issue here is the retroactive liability of the appellant father for the support of the parties’ two children, at the rate of $70 a month. This appeal is from a decree imposing liability in the total sum of $6,262.00.

The facts are unlike those in any of our prior cases. Peggy Storey (now the appellee, Peggy Ward) brought suit in 1964 for a divorce on the ground of personal indignities. Attached to the complaint was a property agreement which recited that it was contingent upon its approval by the court and which contained this pivotal paragraph:

Both parties further agree that the plaintiff is a fit and proper person to have the permanent care and custody of the children of plaintiff and defendant, and the defendant agrees to pay the plaintiff Seventy Dollars ($70.00) per month for the support of the said minor children so long as she shall remain unmarried and within the jurisdiction of this court.

The court’s final decree was signed in June, 1964, by the late Chancellor Hugh M. Bland. The decree found that the parties’ agreement should be approved and that the defendant should pay $70 a month for the support of the children “in accordance with the property agreement entered into between the parties.” In the final paragraph of the decree the court granted a divorce to the plaintiff, awarded her the custody of the children, and ordered the defendant to pay $70 a month as child support, with reasonable visitation rights. The court retained jurisdiction of the case.

The father made the payments, although not always promptly, until his former wife married Wendell Harris in December, 1965. No further payments were made until that marriage ended in a divorce in September, 1970. Storey then began making payments of $25 a month, saying (according to the appellee) that that was all he could afford. The appellee married her present husband, Jack Ward, in March of 1971, and Storey again discontinued his payments. In December of 1973 the appellee filed her present petition, asserting a claim for arrearages totaling $6,262.00 and asking that the appellant be cited for contempt of court. By an interim order the chancellor directed that the $70 payments be resumed. This appeal is from a later order entering judgment, as we have said, for $6,262.00.

Chancellor Grant, in making that award, construed Chancellor Bland’s original decree as a directive that the monthly payments be made regardless of the mother’s remarriages. We do not so construe the decree. Although the final paragraph did not mention the matter of remarriage, two earlier paragraphs had specifically approved the agreement without reservation and had directed the father to make the $70 monthly payments “in accordance with” the parties’ agreement. When the decree is considered in its entirety, we think it gave effect to the agreement. Moreover, the parties themselves so interpreted the decree for almost ten years (with the possible exception of a somewhat ambiguous petition that was filed by the appellee in 1968 but not brought to the trial court’s attention).

We turn to the novel and interesting problem of the validity of the parties’ agreement, drafted by counsel and approved by the court, that the defendant should pay the stipulated child support money to the plaintiff “so long as she shall remain unmarried ...” Even though we have never passed upon this exact question, our earlier decisions are decidedly helpful.

A father’s duty to support his minor children undoubtedly continues after the entry of a divorce decree. In Holt v. Holt, 42 Ark. 495 (1883), the decree awarded custody of the children to the mother but made no provision for their support. When, two years later, the mother brought suit to recover the amount of her expenditures for child maintenance, we held, on demurrer, that her complaint stated a cause of action. Similarly, in McCall v. McCall, 205 Ark. 1123, 172 S.W. 2d 677 (1943), the chancellor suspended the father’s payments owing to his unemployment and inability to pay. When his financial condition improved we held that he could be required to reimburse his former wife for her child maintenance expenses during the period of suspension, because the duty of support is a continuing one.

In a number of cases, such as Robbins v. Robbins, 231 Ark. 184, 328 S.W. 2d 498 (1959), we have said that the duty of child support cannot be bartered away by the parents. That does not mean, however, that the duty of support cannot be affected by contract. What our cases actually hold is that the duty cannot be bartered away permanently to the detriment of the children. The court can unquestionably modify an award prospectively to meet changed conditions, even though it was based upon a contract. Lively v. Lively, 222 Ark. 501, 261 S.W. 2d 409 (1953). On the other hand, the law does not permit an award of maintenance to be increased retrospectively, for a period before the mother seeks the increase, even though her outlay has exceeded the amount of the award. Gant v. Gant, 209 Ark. 576, 191 S.W. 2d 596 (1946). Moreover, the welfare of the child is paramount. Hence a mother could not obtain judgment for past-due payments after the five-year statute of limitations had run and after the child had reached maturity, had married, and was no longer dependent upon her parents. Brun v. Rembert, 221 Ark. 241, 297 S.W. 2d 940 (1957). Such a recovery would not have benefited the child.

We find no great difficulty in applying the principles of our earlier decisions to the case at bar. The appellee, with the advice of her attorney, accepted her husband’s obligation to pay child support only so long as she remained unmarried. There is certainly no principle of public policy making such a contract absolutely void, because upon remarriage a divorced mother may have no need for child support payments from her former husband, who may himself be destitute. (We note that here the appellant has also remarried and has another family to support.)

On the other hand, the parents’ inability to permanently bargain away the children’s right to support preserves the court’s power to modify the original decree to meet subsequent conditions. Here the appellee did not press her claim to child support until the filing of her present petition, on December 17, 1973. At the hearing below she testified that she and her present husband are supporting four children and that she finds it necessary to borrow money to live on. Upon the proof the chancellor was warranted in reinstating the appellant’s payments as of the filing of the present petition, but otherwise no retroactive liability should be imposed.

The decree is reversed and the cause remanded for further proceedings. Appellant is to pay costs in this Court. (6-23-75).


author: John A. Fogleman, Justice. Frank Holt, Justice,

text:
    JIM WALTER HOMES INC v. Oather BOWLING d/b/a BOWLING BUILDING SUPPLY
    75-11
    521 S.W. 2d 828
    Opinion delivered April 28, 1975

      Spencer & Spencer, for appellant.

      Jack M. Lewis, for appellee.
   John A. Fogleman, Justice.

Only one question is involved on this appeal. That is whether the placing of a wall box containing electrical equipment on a pole located upon unplatted and unimproved property constitutes commencement of a building within the meaning of Ark. Stat. Ann. § 51-607 (Repl. 1971). The trial court found that the electrical materials purchased on February 5, 1973 were for the purpose of establishing a power unit on a pole adjacent to the site of a home to be constructed on the premises and, since the installation of the pole and a power unit occurred prior to the recording of a mortgage, the installation constituted the commencement of the building as a matter of law. We disagree and reverse the judgment.

We have previously considered the meaning of the words “commencement of [the] buildings or improvements” in Ark. Stat. Ann. § 51-607, the section of the statute relating to establishment of priorities of mechanics’ and materialmen’s liens. In order to constitute “commencement” sufficient to establish lien priority the work done must be such as to make it obvious that improvements on the property are being commenced or are underway. It means some visible or manifest action on the premises to be improved making it apparent that the building is going up or other improvement covered by the statute is to be made. Clark v. General Electric Company, 243 Ark. 399, 420 S.W. 2d 830. Mark’s Sheet Metal Inc. v. Republic Mortgage Co., 242 Ark. 475, 414 S.W. 2d 106. Removing the foundations of old buildings on the premises, commencment of leveling operations and the establishment of cut and fill elevations are not sufficient evidence of commencement. Clark v. General Electric Company, supra. An inspection and measurement of the premises and the placing of a wooden peg to determine the location of a proposed house on the premises are not sufficient. Marks Sheet Metal, Inc. v. Republic mortgage Company, supra.

The question of priorities in these cases is rendered more difficult because of the strong equities favoring both parties. These equities are conflicting and competing. In considering them, it is imperative that we remember that basically the evidence of titles to, and liens upon, real estate is required to be a matter of record. The mechanics’ and materialmen’s lien statute provides a notable and appropriate exception. But in order that the exception prevail, it is essential that the mechanic or materialman bring himself within the terms of the statute. We have not yet gone so far as to hold that, in order to establish priority, there must be actual excavation for a basement or foundation or that the labor or materials involved must be such as could afterward become a component part of the structure, as many jurisdictions have. Clark v. General Electric Company, supra. But it has been held that the driving of stakes to indicate the line of foundations and the digging or scraping away dirt to bring one corner down to the proper level would not constitute commencement of a building. Kelly & Martin v. Rosenstock & Stein, 45 Md. 389 (1876). It had been previously held in the same jurisdiction that driving pegs in the ground, and laying it off for buildings could not be regarded as a commencement of the building within either the letter or spirit of the law. Brooks v. Lester, 36 Md. 65 (1872). Staking out the foundation line was held insufficient in Conrad & Ewinger v. Sturn, 50 Iowa 470 (1879). The placing of lumber on the premises and the building of a fence enclosing the premises were not sufficient to justify the court in giving priority to the furnisher of the materials over a recorded mortgage. Middletown Savings Bank v. Fellowes, 42 Conn. 36 (1875).

It is clear that work simply preparatory to future building operations does not constitute the “commencement of [a] building”. The installation of the power pole and wall box was only a preparatory step and did not constitute the commencement of a building, under our statute, which would give priority to the materialman over a subsequently recorded construction money mortgage.

The judgment is reversed and the cause remanded for further proceedings consistent with this opinion.

Byrd and Holt, JJ., dissent.

Jones, J., not participating.

Frank Holt, Justice,

dissenting. In view of the peculiar facts in the case at bar, I cannot agree with the majority that the installation of a power pole with a wall box containing electrical equipment is not, as a matter of law, sufficiently visible or a manifest action on the premises which would make it apparent to appellant that a building is being commenced or other improvement is being made. The court, sitting as a jury, found that the installation was sufficient notice to the appellant.

It is well established that it is a function of the jury, or the tria.1 court sitting as a jury, to determine the preponderance of the evidence and we afirm if there is any substantial evidence to support the finding after reviewing the evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee. Fanning v. Hembree Oil Co., 245 Ark. 825, 434 S.W. 2d 822 (1968). Before we reverse the finding of a jury or a trial court sitting as a jury, it must appear to us that “[Tjhere is no reasonable probability that the incident occurred as found by the trial court sitting as a jury.” Fanning v. Hembree Oil Co., supra; Lumbermens Mut. Ins. Co. v. Cooper, 245 Ark. 81, 431 S.W. 2d 256 (1968). In the case at bar, it is undisputed that appellant is in the business of selling unfinished homes. It appears undisputed that the appellee furnished the electric power device to the purchaser of appellant’s home a few days before the appellant “put their part on the site” and before recording its mortgage. There was evidence that the electrical outlet was necessary in the construction. The purchaser was asked: “Was that necessary to have that there before Jim Walters could put their part on the site? Yes sir. So, you got these before Jim Walters did their part? Yes sir.”

In Clark v. General Electric Co., 243 Ark. 399, 420 S.W. 2d 830 (1967), cited by the majority, we said:

We had occasion to determine whether there was a ‘commencement ’ of a building sufficient to establish lien priority recently in Mark's Sheet Metal, Inc., v. Republic Mortgage Co., 242 Ark. 475, 414 S.W. 2d 106. There we held that the work done must be such as to make it obvious that improvements on the property were being commenced or were underway. We said that the clause in question means some visible or manifest action on the premises to be improved, making it apparent that the building is going up or other improvement is to be made.

Consequently, in the case at bar when the evidence is viewed most favorably to the appellee, I am of the view that a fact issue existed as to whether the installation of the power pole and electrical unit was sufficiently visible and manifest to make it obvious to the appellant that improvements on the property had commenced or were underway in order for appellant to complete its unfinished shell home upon delivery. There is substantial evidence to sustain the trial court’s findings and I would affirm.

Byrd, J., joins in the dissent.