author: Paul "Ward, Justice. Carleton Harris, Chief Justice,

text:
    Heber Springs Savings & Loan Association v. Cleburne County Bank
    5-3875
    402 S. W. 2d 636
    Opinion delivered May 2, 1966
    [Rehearing denied June 6, 1966.]

      Chownmg, Mitchell, Hamilton & Burrow, for appellant.

      Smith, Williams, Friday & Bowen, By: Ben Allen, for appellee.
   Paul "Ward, Justice.

This litigation springs from an effort to obtain a charter for a savings and loan association pursuant to certain provisions of Act 227 of the Acts of 1963, being Ark. Stat. Ann. §§ 67-1801 to 67-1862 (Repl. 1966).

On May 25, 1964 a number of residents of Heber Springs, Cleburne County, and vicinity filed an application pursuant to the above mentioned act for a charter from the state for a savings and loan association to be named “Heber Springs Savings-and Loan Association” and to be located in said city. The application showed:

1. Permanent stock of the par value of $189,000 had been subscribed by those whose names' were listed.
2. The association will commence business with a paid-in surplus, or expense fund, of $50,000.
3. The names and addresses of the officers and directors of the proposed association.
4. The applicants agree to comply with all requirements of said act.

Attached to the application were copies of The Articles of Incorporation, the By-laws, and a list of the subscribers to Permanent Stock. There was also a letter from the president of the Arkansas National Bank of Heber Springs stating that $179,500 had been deposited to the credit of the proposed association.

On November 20, 1964 protests to the above application were filed by the Batesville Federal Savings and Loan Association, the Cleburne County Bank, and the Bank of Quitman, all contending (1) there was no need for the association, (2) the association would unduly harm their businesses, and (3) it would not he successful.

At the hearing before the five-man Savings and Loan Board there was testimony by the applicants and by the protestants which was recorded, and which constitutes the record before this Court. On December 14, 1964 the Board made, in material parts, the following findings of facts:

1. All prerequisites of the act have been complied with.
2. “The character, responsibility and general fitness” of the applicants, and the proposed officers and directors are such as to command confidence that the affairs of the association will be honestly and efficiently conducted.
3. There is a public need for the association.
4. The volume of business in the area indicates a successful operation.
5. The operation will not unduly harm any other association or other financial institution.

The above findings were unanimously adopted by the Board on December 14, 1964. Then on March 4, 1965, after the proceedings were transcribed and filed, the Board met and issued the Association a charter on a temporary basis, conditioned that it secure insurance of accounts through the Home Loan Bank Insurance Division.

On April 2, 1965 the remonstrants filed notice of appeal to the Circuit Court of Pulaski 'County. On November 4, 1965 the trial court reversed the Board and ordered it to dismiss the application, on the ground that there was no substantial evidence to support the Board’s action. This appeal follows, the sole contention for a reversal of the trial court being there is substantial evidence to support the findings and action of the Board.

After a careful examination of the record presented to the Board, the trial court, and to this Court we are forced to agree with appellant.

Section 67-1811 (as previously referred to above) provides that the same facts will be presented to the Board, the trial court and this Court, and it also further provides:

“In any such review the findings of the Board as to the facts, if supported by substantial evidence, shall be conclusive. ’ ’

Therefore it clearly appears that the trial court must be reversed if we find there is substantial evidence to support the action of the Board.

Under the rule above explained we will therefore look only for substantial evidence, and will not attempt to weigh it against the testimony offered by appellees.

Section 67-1824 provides that before the Board can issue a charter it must make from “the data furnished with the application”, the following findings: (1) Appellants have complied with the provisions of the act; (2) The proposed “directors and officers” are such as to “command confidence and warrant belief that the business . . . will be honestly and efficiently conducted...”; (3) There is a public need for the proposed association, and the volume of business in the area is such as to indicate a successful operation, and; (4) the operation of the proposed association will not unduly harm any other existing association or other financial institution.

As has been previously pointed out the protestants (appellees), in their answer, did not question a complianee with items (1) and (2) above mentioned. Also we note the fact that the trial court, in reversing the Board, merely found “there is no substantial evidence in the record to support the report and order” of the Board, and did not specify which item was deficient. Consequently it is necessary to examine both of the remaining items.

One. There can be no doubt that there is substantial evidence in the record to support the Board’s finding there exists a need for the association in Heber Springs. Mr. Harrison, who has lived in Heber Springs for the past seven years, and Avho appears well acquainted with the fiscal affairs of Cleburne County, testified there was a need for the association and that the people of that county had a hard time arranging for that type of financing. Mr. Duckworth, who lives in Heber Springs, has had experience in trying to obtain loans and has had experience in the savings and loan business. In his opinion there Avas a real need for the association, that the time element Avas the greatest problem, and that such association “could get many of the loans now going to insurance companies ’ ’.

Likewise, there is ample evidence to support the Board’s finding that the operation should be successful. The record sIioavs the applicants have already subscribed for more stock in the association than is required by the statute. This fact, the fact that there is a need for this type of loan, and the fact that the business will be handled by honest, capable men, certainly indicates the probability of a successful operation.

Perhaps the most significant piece of evidence offered by appellants to sustain their position is a letter Avritten to the Arkansas Banking Commission by the president of the Arkansas National Bank of Heber Springs, Avhich reads:

“This is to inform you that we are aware of the plans to organize a Savings and Loan Association in Heber Springs, Arkansas. We are not opposed to the organizing and tbe issuance of a charter, and feel that there is a large demand for financing of this kind throughout the area they intend to serve.
“I am acquainted with most of the people involved as directors and stockholders and find them to be of fine character and good reputation in the communities.”

Also, the testimony strongly indicates that Heber Springs and the adjacent territory is entering upon an era of progress and development due to the large lake nearby.

Two. We can find nothing in the record to compel the conclusion that this proposed association will “unduly harm” any other existing loan association or financial institution. Any such conclusion certainly cannot be drawn from the letter quoted above. It is true there is testimony indicating similar businesses in adjoining counties will probably lose many loans they are now making in 'Cleburne County. However, it appears to us, if these loans are of such volume as to “unduly harm” the outside businesses, it also strongly indicates the need of an association in Heber Springs.

We conclude therefore that the findings of the Board are supported by substantial evidence, and that, consequently, the judgment of the trial court must be, and it is hereby, reversed.

Reversed.

Harris, C. J., dissents.

Amsler and Bland, JJ., not participating.

Carleton Harris, Chief Justice,

dissenting. In my view, the ruling of the Pulaski County Circuit Court (Third Division) should be affirmed, because of the provisions of Ark. Stat. Ann. § 67-1824 (3) and (4) (Repl. 1966). Sub-section (3) provides that an applicant for a charter must show that:

“There is a public need for the proposed association and the volume of business in the area in which the proposed association will conduct its business is such as to indicate a successful operation.”

No public witnesses testified, and there was no evidence, in my opinion, that would justify a finding that there was a public need for the proposed association at Heber Springs. The only witnesses who testified for appellant were the President, Secretary, and a member of the Board of Directors. According to the testimony of Mr. Robert Harrison, Secretary of the proposed association, no problems had arisen in Cleburne County with regard to obtaining home financing. Mr. Harrison was unable to name any qualified borrower within Cleburne County who had been turned down for a loan by existing financial institutions, and, in fact, the witness stated, “Well we have been satisfied with the service.” The witness admitted that quick and efficient loan service has been received from Batesville Federal Savings and Loan Association, and other neighboring lending institutions. Likewise, on cross-examination, Mr. Harrison admitted that, based on the experience of 1962,1963, and the first ten months of 1964, there were not enough loans available in the county for the new association to be successful. As Mr. Harrison stated, “Based on the past figures, we might as wTell just close the door.” The witness also stated that the proposed association would need a million dollars volume before it could start making money, and that available loans would have to be four times greater than at present. The evidence reflected that there were only 2,858 householders in the county in 1965, and that building permits issued numbered only 36, 20, and 21, respectively, for the years 1962, 1963 and 1964. Another figure which would appear pertinent to the matter is the public school enrollment, which fell from 2,010 in 1961 to 1,855 in 1965.1 recognize that Greer’s Ferry at Heber Springs will bring economic growth to Cleburne County, but to what extent, cannot yet be known. At any rate, I am unable to agree that the testimony established a public need for the proposed association.

The other requirement for a charter that I deem here controlling is found in Sub-section (4). It provides :

‘ ‘ The operation of the proposed association will not unduly harm any other existing association or federal savings and loan association or other financial institution.”

My dissent is based mainly on the proof relating to this phase of the litigation. There are three small banks in Cleburne County, two in Heber Springs, and one in Quitman. These banks have combined assets of only about eight million dollars. The net earnings of the bank at Quitman in 1963 amounted to $10,869.36, and the net earnings of the Cleburne County Bank were $16,319.52. It is my view, from the evidence offered, that the establishment of the proposed savings and loan association could have a most harmful and detrimental effect upon the existing financial institutions within the county. The proof reflected that the association would expect to draw its principal support from the Cleburne County area. Several witnesses, experienced in finance, testified that the granting of the application would have an adverse effect on existing lending agencies in the county. Mr. Warren Bass, a certified public accountant, who has served as a representative of the state of Arkansas on the Governing Council of the American Institute of Certified Public Accountants, and who is also a former member of the State Banking Board, prepared a series of exhibits projecting the position of the existing banks in the Cleburne County area after first assuming the existence of the proposed savings and loan institution. According to his testimony, if the proposed association had existed in 1963, the three banks in Cleburne County, collectively, would have shown a profit of $3,101.69. He concluded his testimony by stating:

“Well, in summary, the way I would summarize it, that you would strengthen the weak by weakening the strong. These are not big institutions we are talking about. There is a thin profit margin involved. Our forecast again based on realistic accounting information shows that the savings and loan would be a loss situation, that there would not be material profits made by the other three insitutions in the county and I had rather summarize it by saying it would almost be like strengthening the weak by weakening the strong.”

It may well be that, in the not too distant future, the economy of Cleburne County will be such as to support this additional financial institution, but I am presently of the view that the granting of the charter was premature.

      Paul Hensley, President of the Arkansas National Bank in Heber Springs, supported the application by letter.


source: Caselaw Access Project

author: Paul Ward, Justice.

license: Public Domain

text:
    Western Geophysical Co. v. Mason
    5-3877
    402 S. W. 2d 657
    Opinion delivered May 2, 1966
    [Rehearing- denied June 6, 1966.]

      Grumpier & O’Connor, Richard H. Mays, for appellant.

      Chambers & Chambers, for appellee.
   Paul Ward, Justice.

Mr. and Mrs. Noali Mason (appellees) filed suit against Western Geophysical Company (appellant) for damages to the water well on their farm caused, allegedly, by explosions detonated by appellant in an effort to locate subsurface formations capable of producing oil. The trial resulted in a jury verdict in favor of appellees for $2,500, and this appeal follows.

Before discussing the points relied on by appellant for a reversal we set out a brief summation of the pertinent facts.

Appellees own sixty seven acres of land in the southern portion of Columbia County where they have resided since 1958, and where Mr. Mason was raised. They have a well approximately sixty seven feet deep which furnishes ample water for drinking and for domestic purposes such as bathing and cooking. In June 1964 a Mr. Haynes, an agent of appellant, began detonating dynamite shots in holes fifty to seventy six feet deep in the vicinity of appellees’ home. Soon thereafter the Avater in the well turned red and muddy, and was unfit for use, allegedly as the result of the shots.

In their complaint appellees alleged appellant used the explosives after being warned the well might be damaged; that the explosions damaged the well; that appellant was negligent in discharging the explosives too near the well. Appellant, answering, admitted it performed “seismic explorations”; admitted it was a corporation authorized to do business in Arkansas, but denied all other allegations.

One. Appellant first contends there is no substantial evidence to show it ivas negligent in the conduct of its seismic operations. We do not agree with this contention.

In the first place there is respected authority to the effect that, in a situation like the one here under consideration, negligence is not a necessary element of liability. In Volume 4 (permanent edition) of Summers Oil and Gas, Section 661 (pages 127 to 141), there is a thorough discussion of this question under the heading “Liability of Operator for injury caused by Geophysical Exploration”. Therein the author, after discussing various theories of liability in numerous jurisdictions, makes this summation:

“In none of the theories of liability presented by the Courts holding to the majority view is negligence a necessary element of liability. The act of using the explosive is intentional, and whether the injury can be said to be direct or consequential, the actor should be liable regardless of the degree of care used in doing the act.”

We think the rule announced is sound and practicable since there is no feasible way to prove exactly what happens beneath the surface from such explosion. The rule above mentioned is particularly applicable in this case where appellant did not detonate the explosions on its own property and the explosions were not necessary to protect or improve its own property.

We are also of the opinion there is substantial evidence in the record to justify the jury in finding appellant was guilty of negligence in this case. Rather than attempting to set out in full all relevant testimony, we deem it sufficient to point out: appellees testified their well was damaged in 1961 by similar explosions; that they so informed appellant, and that they warned appellant the explosions were too close to their well. Likewise, there is undisputed evidence in the record that the well was damaged shortly after the explosions occurred, and no other explanation for the damage was shown or even suggested. We are not unmindful of the expert testimony presented by appellant to the effect that vibrations set in motion by the explosions could not have affected the well because of the small size of the shots and the distance from the well. However, in our opinion, a jury question was presented by all the testimony.

Two. We do not agree with appellant’s argument that appellees produced no “proof” (evidence) of damages. As previously pointed out, it is not disputed that the well was damaged. Testimony offered by appellee was that the farm was worth $25,000 before the damage and only $20,000 after the damage. This is not refuted.

Three. During the trial appellees offered testimony to show the explosives not only damaged the well but also caused the house to settle and the doors to jam. Appellant objected on the ground that such damage was not asked for in the complaint. The objection was qualifiedly overruled by the court, but we find no reversible error. Appellees made it plain that they were asking damages for the well only, and the court’s instructions so limited the question of damages. Also, we think the testimony tended to refute appellant’s contention no appreciable shock-waves resulted from the explosions.

Foior. Finally, appellant contends the court erred in refusing to give its requested instructions nos. 5 and 6, and in giving instruction no. 10.

Instruction no. 5 directed the jury that if it found appellees were entitled to any damages then it must determine whether they are temporary or permanent. From our examination of the record it appears all of appellees’ testimony was directed toward permanent damages, and we do not find where appellant offered any testimony to the contrary. This being true we must assume the damages are permanent, and appellant will not be permitted to contend otherwise on appeal. See: Standard Oil Company of Louisiana v. Goodwin, 174 Ark. 603, 299 S. W. 2.

Having reached the above stated conclusion it becomes unnecessary to discuss the other two mentioned instructions. No. 6 deals with the method of computing the amount of temporary damages, and appellant admits instruction no. 10 sets forth the correct measure of permanent damages.

Finding no reversible error, the judgment of the trial court is affirmed.

Bland, J., not participating.


author: Oseo Cobb, Justice.

text:
    Smith v. State
    5193
    402 S. W. 2d 412
    Opinion delivered May 2, 1966

      Edward Trimble, Holt, Park & Holt, for appellant.

      Bruce Bennett, Attorney General, Fletcher Jackson, Assty. Atty. General, for appellee.
   Oseo Cobb, Justice.

Appellant was convicted of the crime of rape and sentenced to life imprisonment in the penitentiary. On appeal from the conviction, appellant raises two points:

(1) Alleged insufficiency of the evidence to support the verdict; failure of the court to direct a verdict.
(2) Alleged error of trial court in permitting prosecuting attorney to question appellant with reference to a lie detector test.

Point 1—The evidence.

The victim in this crime is a grandmother. She and her four-year-old granddaughter were spending the night of July 24-25, 1965, in her apartment when the attack took place well after midnight. She testified:

That she was asleep when the intruder grabbed her by the neck, placed a hand over her mouth, and threatened, “If you make a sound I will kill you and the baby both; ’ ’ that she was forced to another bed and there forcibly raped; that the rapist talked a great deal and that she remembered his voice. When the intruder appeared on the verge of a second act of rape, she begged him to leave, promising that he could return the following Wednesday night. During the commission of the crime the rapist had something over his face and hands. She later observed where the intruder had forcibly entered her apartment by cutting the screen and forcing his way through a window. When he left, she promptly locked herself in and asked the telephone operator for emergency help in contacting the police. The police arrived in a matter of minutes. She was taken to the Baptist Hospital, where a pelvic examination was made about 5:30 a.m. by Dr. John E. Sorrels, Jr., an intern. When she got back home she considered herself reasonably calm, but when she glanced at the bed where the crime had been committed she screamed and became completely hysterical and had to be hospitalized for several days.

Dr. Sorrels testified that he made the pelvic examination of the victim revealing abrasions along the vaginal wall and the presence of male sperm.

Detective Sgt. J. C. Boles, who investigated the case, testified:

That anticipating the possible return of the rapist on Wednesday, the 28th, he arranged with the victim’s daughter to be in her mother’s bed as a decoy on that night, with the officer and a daughter-in-law of the victim present for protection, witnessing, and apprehension of the offender if he returned to the scene. All lights were turned out except the small wall socket light which was left on directly across the room from the window through which the previous entry had been gained. This light was some eight or ten feet from the window and shining directly upon the window. About 12:45 a.m. the sergeant observed a young colored man forcing his way through the window. The intruder’s face was not covered, and was plainly visible during a considerable period of time as he stealthily made his entrance.

From said clear and extended observation, Sgt. Boles subsequently testified positively identifying appellant as the intruder. He was permitted to make entry into the room and to reach the bed where the decoy was simulating sleep when the sergeant identified himself and commanded a halt. The intruder dashed for the open window and the sergeant, in shooting to disable rather than to kill the intruder, missed him and he escaped, leaving pieces of a flashlight and a cap and other materials which were immediately recovered. The victim of this crime was still in the hospital when the second episode took place.

A pick-up was broadcast covering the general description of the intruder. Appellant was in the police line-up, along with other suspects, on Friday morning, two days following the second episode, and the sergeant picked him out of the line-up and positively identified appellant as the man he had seen in the victim’s home. The victim was still hospitalized and she did not have an opportunity to identify the offender from the line-tip of several colored males with similar physical characteristics until the following Sunday morning, at which time the suspects were required to speak certain words, and from these spoken words the victim was able to recognize and identify the voice of appellant as that of her attacker. The cap recovered at the scene was found to fit the head of appellant in a test before the jury and other witnesses testified that appellant was known to wear a cap of such general description.

Appellant’s mother and stepfather testified that appellant lived with them and that appellant was in their home during all of the nighttime of July 24-25 and on the night of July 28-29. Witness Humble further testified that appellant never did own, as far as he knew, a gray cap. Appellant testified that he was not at the scene-of the crime on either occasion and other witnesses testified for appellant as to his good reputation. While the evidence was conflicting, we have concluded that the positive visual identification of appellant by Sgt. Boles, and the voice identification of appellant by the victim, together with the other proof as to the cap recovered at the scene and which was found to be similar to one worn by appellant and to actually fit appellant, constituted substantial evidence in support of the jury verdict.

If there is substantial evidence to support the jury verdict, the case must he affirmed. As said in Graves & Parham v. State, 236 Ark. 936, 370 S. W. 2d 806 (1963):

"Upon the conflicting testimony the issues of fact were properly submitted to the jury. The appellants are in error in arguing that the State’s failure to prove its case beyond a reasonable doubt entitles them to a reversal. The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence. Fields v. State, 154 Ark. 188, 241 S. W. 901.”

Rollie v. State, 236 Ark. 853, 370 S. W. 2d 188 (1963), said:

"The appellant alleges five assignments of error in her motion for a new trial. We group the first three assignments inasmuch as they question the sufficiency of the evidence. On appeal all the evidence submitted at the trial must be viewed in the light most favorable to a jury verdict and if there is any substantial evidence to support the verdict it is our duty to sustain it. Ashcraft v. State, 208 Ark. 1089, 189 S. W. 2d 374; Smith v. State, 222 Ark. 650, 262 S. W. 2d 272.”

There are numerous cases in accord with those quoted. E. g., Rayburn v. State, 240 Ark. 264, 398 S.W. 2d 909 (1966); Higgins v. State, 204 Ark. 233, 161 S. W. 2d 400 (1942); Fields v. State, 154 Ark. 188, 241 S. W. 901 (1922).

The victim identified appellant by his voice within a matter of days following the crime. She could not see her attacker in the darkness of the room. The attacker made several statements to the victim and she had both the opportunity and reason to remember his voice, even under the trying circumstances.

In Teer v. Commonwealth, 307 Ky. 602, 212 S. W. 2d 106 (1948), the Kentucky court said:

“Furthermore, identity may be sufficiently established by the mere sound of a human voice.”

Also see 22A C. J. S., Criminal Law, § 616 (b) (4) (1961); 23 C. J. S., Criminal Law, § 920 (1961).

We therefore conclude that appellant’s contentions as to the insufficiency of the evidence and as to the denial of a directed verdict are without merit.

Point 2—The reference in testimony to a lie detector test.

When Sgt. Boles was undergoing cross-examination by appellant’s counsel, he testified as follows: When appellant was on the stand, the state’s attorney commented during cross-examination, “I believe your attorney mentioned that you took a lie detector test earlier in a conversation.” Appellant’s counsel objected and the parties retired to chambers, the state insisting that counsel for appellant had opened up the question as to the lie detector test and that permission should be granted to examine concerning same. The court made a ruling containing the following:

“Q. Then why did you take him out to the State Police?
A. He kept on contending that he had not done anything unlawful and he offered to take a lie detector test.
Q. The truth of it is you all kept demanding that he take a lie detector test, didn’t you?
A. No.
Q. And he told you he had nothing to hide and that he would take any test you wanted him to take, didn’t he?
A. He told us that he wanted to take it. We did not insist because we didn’t feel it was anything we should do because you can’t introduce them in court, and so, therefore, we had nothing to gain as far as the City was concerned by giving him the test.”
“Of course we all know clearly it is inadmissible normally under ordinary circumstances. It is just a question of whether he opened it up to where it would be admissible, or what we call invited error that he can’t complain about. I am going to hold that that is the situation up to now.”

The state’s attorney thereafter questioned appellant and obtained responses as follows:

“Q. What were you asked on the lie detector test?
A. A lot of different questions.
Q. Tell me one of them.
A. Where was I at on the night of the 25th.
Q. What did you tell them?
A. At home.
Q. Were you asked if you had ever been shot at?
A. Yes.
Q. And what did you tell them?
A. No.
Q. Were you asked if you lost your cap anywhere ?
A. I don’t remember that.
Q. Did you lose your cap anywhere?
A. No, I haven’t.

The above questions and appellant’s answers thereto did not serve in any way to incriminate appellant; if anything this evidence supported his contentions as to his innocence. Certainly the testimony of Sgt. Boles on cross-examination that appellant was insisting upon his innocence and had offered to take a lie detector test would not be evidence prejudicial to the accused, and would logically be considered as favorable to the accused. The error, if any, was therefore harmless and we find no merit in Point 2 urged by appellant. Nathan v. State, 235 Ark. 704, 361 S. W. 2d 637 (1962) involves circumstances very similar to those of the instant case and we quote therefrom:

u2. The record shows that appellant’s attorney objected to a certain statement alleged to have been made to the jury by the prosecuting attorney in his opening statement. The alleged statement was a reference to the fact that appellant had been subjected to a lie-detector test. Over appellant’s objection the trial court refused to declare a mistrial. If any possible error is indicated above we think it was later waived by appellant when he testified concerning the same incident.”

In this case, counsel for appellant asked Sgt. Boles four different and separate questions concerning the lie detector test after Sgt. Boles had testified that the appellant had offered to take such a test.

Furthermore, the prosecution did not attempt at any time to introduce in evidence the results of the lie detector test.

It is clear from the record that appellant was never placed in the position of giving self-incriminating evidence by such a lie detector test; and it must therefore follow that appellant’s constitutional rights, both state and federal, were not breached by said testimony.

We therefore conclude that appellant’s Point 2 is without merit.

Having found all of the contentions of appellant to be without merit, judgment of the trial court is affirmed.

Amsler and Bland, J. J., not participating.


author: Guy Amsler, Justice.

text:
    Francis v. City of Benton
    5-5198
    402 S. W. 2d 110
    Opinion delivered May 2, 1966

      J. B. Milham, for appellant.

      Bruce Bennett, Attorney General, Fletcher Jackson, Asst. Attorney General, for appellee.
   Guy Amsler, Justice.

On May 3, 1965, appellant Billy Francis was convicted in the Municipal Court of Benton, Arkansas, on a charge of driving a motor vehicle while under the influence of intoxicants, subsequent offense. A timely appeal to the Circuit Court ivas effected.

Trial to the jury in Circuit Court on October 26, 1965, resulted in a verdict of guilty and appellant’s punishment was fixed at $500.00 and six months in jail. The guilt or innocence of the appellant and the punishment to be imposed, if found guilty, were questions submitted at the same time and a form of the verdict containing both findings was furnished the jury. It is significant that the jury noted on the verdict “If this man is an alcoholic we recommend that he has medical help. ’ ’ Motion for a new trial was overruled and this appeal followed.

Appellant’s motion for a new trial contains five alleged errors by the trial court. Since the case must be remanded we will discuss only one point. Over Francis’ objection the City attorney was permitted to tell the jury in his opening statement that “He had within one year previous been convicted of a previous offense.”

Records of the City of Benton Municipal Court were admitted in evidence and these established that appellant was before the court on March 21, 1964, charged with driving while under the influence and driving without a driver’s license. He entered a plea of nolo contendere to the first count and guilty to the second. Penalties were assessed on both charges.

The second docket sheet admitted in evidence reflects that appellant was again in the Benton Court on March 3, 1965, charged with driving under influence of intoxicating liquor—subsequent offense—and was convicted following a plea of not guilty. Statutory penalties were assessed.

Prior to Miller v. State, 239 Ark. 836, 394 S. W. 2d 601 (1965), the city attorney’s opening statement and the proof of prior convictions [except those over one year old, Ark. Stat. Ann. § 75-1029 (Repl. 1957) ] could perhaps be sustained under our holdings in Atha v. State, 217 Ark. 599, 232 S. W. 2d 452; Rowe v. State, 224 Ark. 671, 275 S. W. 2d 887; Clubb v. State, 230 Ark. 688, 326 S. W. 2d 816; and other cases. In these cases it appears that constitutional questions were not raised as they were in Miller v. State, supra.

In the Miller case, (opinion handed down October 18, 1965), we held that to permit the introduction of evidence of prior convictions during the trial on the primary charge was tantamount to a denial of due process and therefore unconstitutional. Mr. Justice Robinson with considerable particularity set forth the modus operandi that should be followed by the trial courts in handling “subsequent offense” cases. It is obvious that the prescribed procedure was not followed in the trial of appellant Francis and that therefore the cause must be returned to the Circuit Court for a. new trial.

Reversed and remanded.


author: Carretón Harris, Chief Justice.

text:
    Johnson v. City of Benton
    5199
    402 S. W. 2d 395
    Opinion delivered May 9, 1966

      J. B. Milham, for appellant.

      Bruce Bennett, Attorney General, Fletcher Jaclcson, Asst. Atty. General, for appellee.
   Carretón Harris, Chief Justice.

Appellant, Bertha Johnson, was found guilty by a Saline County jury of possessing untaxed liquor, and her punishment was assessed at a fine of $500.00, and six months in jail. From the judgment so entered, appellant brings this appeal.

It is first urged that the evidence,was not sufficient to sustain the conviction. Proof developed on the part of the city reflected that Patrolman Blumbelow, of the Benton Police Force, found a half-gallon of untaxed (moonshine) whiskey in a storeroom, located approximately twenty feet to the rear of appellant’s residence. According to his testimony, this outbuilding was the closest building to her house; it was located on a portion of the property occupied by appellant; the outbuilding and appellant’s home were enclosed within a fence, and these buildings were the only two inside the fence.

Appellant admitted that she lived in the house on the property in question, but, with reference to the outbuilding, testified, “I haven’t had anything to do with that building in over two years.” She stated that she rented the house in which she lived, and that she did not have any liquor in her possession; further, that she had formerly stored soda water in the storeroom, but had not even had a key to this building for about two years, having returned it to the owner. However, James Steed, Chief of Police of the city of Benton, testified that he had obtained a search warrant “last winter” to search the storeroom, and found it locked; that appellant had unlocked the door to the building at that time in order for him to enter. The questions of whether appellant was in control of this outbuilding, and whether the whiskey belonged to her, were fact questions, and thus proper questions to be passed upon by the jury. For that matter, even if the building was not under the control of appellant, that fact alone would not prevent a conviction. In Roberts v. State, 220 Ark. 245, 247 S. W. 2d 360, the defendant was convicted of possession of untaxed liquor. No liquor was found in the house, but a considerable amount was discovered back of it. The whiskey was found in some brush, located in a pasture to the rear of the residence, which was separated from the defendant’s backyard by a net wire three or four feet high. Roberts disclaimed ownership of the liquor, and stated that he had no knowledge that it was on the premises adjoining his home. Circumstantial evidence was offered, tending to show that Roberts was the owner of the whiskey, and this court held that a jury question was presented.

Testimony was also offered under Ark. Stat. Ann. § 48-940 (Repl. 1964) that appellant bore the reputation of bootlegging. We think the evidence was sufficient to sustain the jury verdict.

It is asserted that error was committed because the whiskey was not introduced into evidence. This question seems to be raised for the first time here in this court, but at any rate, the contention is without merit. In the case of Byrd v. State, 219 P. 2d 1027, the Criminal Court of Appeals of Oklahoma said:

“The defendant further contends that it was error for the trial court to deny his request that the seized liquor be produced. This contention has been held to be of no merit in State v. Gragg, 71 Okl. Cr. 213, 110 P. 2d 321, 322, wherein it was said: ‘Where one is charged with the unlawful possession of intoxicating liquor, it is not necessary for the State to produce the identical liquor as alleged in the information, before a conviction may be had for the unlawful possession. This is a question of fact to be decided by the court or jury.’ ”

Here, there was not even a request during the trial that the seized liquor be produced. See also Workman v. State, 175 P. 2d 381.

It is argued that the search of the storehouse was unlawful. This search was conducted under the authority of a search warrant issued by the municipal judge after an affidavit for the warrant had been presented by Officer McClintock. Appellant asserts that the storehouse is not covered by the search warrant, but we disagree with the contention. While the printed portion of the affidavit refers to the fact that whiskey is concealed in the "house” occupied by appellant, there is written into the warrant in the proper blank the statement that illegal liquor is concealed "on the premises” of Bertha Johnson. The search warrant itself refers to the term used in the affidavit, "premises of Bertha Johnson,” and then further provides, "[printed] and that said complaiant [Sic] suspects that such property is concealed in the'lhouse occupied by [in handwriting] Bertha Johnson or [or '&’] building.” It cannot be determined whether the illegible word is "or” or an ampersand. At any rate, we think the affidavit and warrant are sufficient to identify and authorize a search of the storage building.

Appellant alleges that Chief Steed’s mention of prior searches of appellant’s premises, and his testimony relative to her reputation as a bootlegger were prejudicial. No objections were made to this testimony during the trial, nor is there any mention of it in the motion for new trial. Accordingly it is not necessary that we discuss these questions. Tiner v. State, 239 Ark. 819, 394 S. W. 2d 608.

On the whole case, we find no prejudicial error.

Affirmed.

      Appellant testified that she had operated a cafe, but it “didn’t succeed.”

      The instant case was tried in October, 1965.

      Appellant objected to the introduction of the search warrant, but upon being overruled, saved no exceptions to the ruling of the court.


author: Carleton Harris, Chief Justice.

text:
    Dixie Cup Co. v. O’Neal
    5-3782
    402 S. W. 2d 417
    Opinion delivered May 9, 1966

      Robert Lato and Smith, Williams, Friday & Bowen, By: W. A. Eldredge, Jr. and William F. Sherman, for appellant.

      McMath, Leatherman, Woods & Youngdahl and John P. Sizemore, for appellee.
   Carleton Harris, Chief Justice.

This is a Workmen’s Compensation case. The issue is whether a claim for compensation (money and medical benefits) is barred by the statute of limitations. James F. O’Neal suffered a compensable injury on October 22, 1958. Claimant was unable to engage in work for about three weeks, and then returned to work, being assigned light duty until November 14, 1959, when he began to develop further trouble from his injury. He was sent to Dr. Hoyt Kirkpatrick, an orthopedist of Fort Smith, and Dr. Kirkpatrick referred O’Neal to Dr. H. F. Flanigin of Tulsa, Oklahoma, a specialist in neurological surgery. Dr. Flanigin operated on December 5, 1959, and discharged O’Neal from the hospital on December 20. He returned to work early in February, 1960. Up until this time (some fifteen months), O’Neal had not been paid any compensation whatsoever for either period of temporary total disability, receiving only the benefit of medical treatment. On February 24, 1960, he consulted his present attorneys, and a claim was filed within a few days. Thereafter, Kobert Law, Branch Claim Manager for American Mutual Liability Insurance Company, the company being one of the appellants herein, advised the commission that appellants had decided to accept the case as compensable for temporary disability, and for permanent partial disability, which might result from O’Neal’s operation. A check for compensation was sent to claimant’s attorneys on March 15, which was forwarded on to him, and the insurance company also furnished these attorneys with a medical progress report on June 1, 1960. This was the last communication from the company to these attorneys until after the events complained of in this litigation had occurred. O’Neal continued to work until October 10, 1963. However, following the surgery of December, 1959, heretofore mentioned, at the direction of Dr. Flanigin, he reported to this doctor (or his colleague, Dr. Duncan) twice in December, twice in February 1960, and thereafter, on May 25,1960, April 11,1961, November 10,1961, May 23,1962, and January 6, 1963.

On April 19 and June 22, 1962, Law, an attorney himself, directed letters to O’Neal, stating that the company had not heard from Flanigin, and suggesting that appellee go to Dr. Kirkpatrick for a rating of permanent partial disability; appellee was advised that the company had made an appointment for O’Neal to be examined by that doctor. On July 13, 1962, Law again directed a letter to claimant, advising appellee that the medical reports denoted that O’Neal had a 10% permanent disability to the body as a whole, and a check in the amount of $1,575.00 was enclosed, along with a final settlement receipt.

Apparently, O’Neal wrote Law on the following July 23, making further inquiry about this settlement, and evidently asking why there was no report from Dr. Flanigin, but this letter has not been placed in the record. However, on August 2, Law replied to the letter, and enclosed a copy of Dr. Kirkpatrick’s report (of the examination of claimant for purpose of rating permanent partial disability). The letter advised that the company had not received a report from Dr. Flanigin, but that it felt sure that, from Flanigin’s previous conversations with Kirkpatrick, the Tulsa doctor would agree with the findings. Law stated that the company felt that Kirkpatrick was best able to determine the amount of permanent partial disability, and added that, “He also has knowledge of what claimants are due under the Arkansas Workmen’s Compensation Act in payment for permanent partial disability.” According to the testimony, O’Neal held the check about three months, and then cashed it. Subsequently he returned to Flanigin for his regular checkup. Flanigin directed a letter to Law, setting out that O’Neal continued to have symptoms referable to his cervical spine, as well as “slight residual neurological symptoms,” and the doctor recommended “that consideration be given to anterior cervical disc and fusion in conjunction with Dr. Norman Dunitz. ’ ’ Law informed the doctor that his company had already made a settlement with the claimant, and was no longer liable for treatment in connection with the case. O’Neal then contacted his attorneys who, upon inquiry, were advised by the company that appellant took the position that the statute of limitations had run on the claim. Subsequently, a hearing was held before a referee, who found that the claim was barred by the statute of limitations, because “claimant failed to file his claim with the Workmen’s Compensation Commission within one year from the last payment of compensation, or within two years from the date of injury.” The full commission affirmed this holding, and appellee appealed to the Sebastian Circuit Court. That court rendered a comprehensive opinion, in which it, inter alia, stated:

“Relying upon Mr. Law’s assurances and after an exchange of letters (the claimant’s not being in the record) in September of 1962, the claimant accepted the money as payment of his total accrued permanent partial disability under the Workmen’s Compensation Act, based on Dr. Kirkpatrick’s report and Law’s representations as to Kirkpatrick’s superior knowledge and what Dr. Flanigin would have had to say if he had been consulted.

“In an opinion filed on April 30, 1964, the referee found that the statute of limitations had run by reason of the claimant’s acceptance of the $1,575.00 in 1962. The referee deplored Law’s conduct in going around claimant’s attorneys, bnt failed to note that Law had also deliberately arranged the evaluation by a doctor strange to the case instead of Flanigin, in whose care claimant had continually been since 1958, a circumstance of which Law was well aware.”

The court, finding fraud, reversed the commission, and remanded the ease.3 From the judgment so entered, appellants bring this appeal.

First, let it be said that, under the statute, an employer is given fifteen days after the filing of a claim by an employee to decide whether the employer will controvert the claim. Therefore, in the matter before us, though the company did not pay any compensation to O’Neal until approximately fifteen months after he was injured, and then, not until he had retained attorneys to assert his claim, the claim, legally speaking, was uncontroverted. It also appears that, in uncontroverted claims, it is the custom for insurance companies to have a physician rate the claimant for disability, and settle the claim on that basis, though the insurance company takes this course at its own risk.

’•' Appellants argue that the only untoward act committed by Law was the “inadvertent” failure to send a copy of the letter to O’Neal’s attorneys (wherein check for settlement was enclosed), and that this act does not constitute fraud. It is also contended that the court erred in that it did not act under any of the authorized statutory grounds in reversing the commission.

Ark. Stat. Ann. § 81-1325, Sub-Section (b) (Repl. 1960) sets out four grounds for reversing a commission order. No. 2 is, “that the order or award was procured by fraud. ’ ’ Appellants argue that this statute is not applicable, stating:

“It is clear the Legislature was referring to ‘orders and awards ’ of the Commission, and not voluntary payments by insurance carriers to claimants * *

In view of the holding that is being rendered in this case, it is not necessary that this particular argument be specifically discussed. Suffice it to say that there are numerous cases where the courts have found fraud, though settlement of the claims was effected between the company and claimant, among others, Lambert v. Remington Rand, 78 N. E. 2d 852 (Ill.), Texas State Highway Department v. Kinsler, 230 S. W. 2d 364.

It is asserted that appellee did not raise the issue of fraud before the commission, and accordingly cannot raise it in the courts. Appellants contend that the question of whether fraud was committed is a question of fact, and that it must be proved with clear and convincing evidence before the Workmen’s Compensation Commission. The commission, of course, is the trier of facts.

It is true that the actual word, “fraud,” was not used, but counsel’s statement to the referee, wherein appellee sought relief, is replete with references to the fact that the attorneys had not received any notice whatsoever of proceedings or developments, since June, 1960; that settlement negotiations were carried on solely between Law, representing the insurance company, and appellee, and the settlement was made without the approval or knowledge of the attorneys. This failure by appellant company to notify counsel was a principal consideration in the finding of fraud by the Circuit Court. While, as stated, the facts upon which appellee relied, were pretty well set forth in the statement to the referee, the direct charge of fraud (using that particular word) was not made, nor does it appear that Law had prior knowledge that this would be an issue. Having no advance notice, it follows that it would have been difficult for Law to defend. At any rate, the commission, as the trier of facts, should pass upon this question.

In accordance with what has been said, the judgment of the Sebastian Circuit Court is reversed, with directions to remand the case to the Workmen’s Compensation Commission, for the purpose of that tribunal passing upon the issue of fraud. In addition to the present record, either party may offer such additional evidence as it desires.

It is so ordered.

Bland, J., not participating.

      O’Neal also went to the Holt-Krock Clinic on September 19, 1960.

      O’Neal stated that he thought his attorneys knew about the check and settlement, since they had known about the check he received in March, 1960.

      The commission did not actually hear any testimony. Of course, it had the record of O’Neal’s testimony before the referee, and the deposition of Dr. Flanigin was also introduced.

      It is not entirely clear whether the court had in mind “moral” fraud or constructive fraud; actually, the court makes findings that relate to both. Of course, one can be guilty of constructive fraud without being guilty of moral wrong. See Stewart v. Clark, 195 Ark. 943, 115 S. W. 2d 887.

      Ark. Stat. Ann. § 81-1319, Sub-section (d) (Repl. 1960).


author: Ed. P. McFaddin, Justice.

text:
    Cornelius v. Ark. Oil & Gas Commission
    5-3750
    402 S. W. 2d 402
    Opinion delivered May 9, 1966

      Spencer & Spencer, Don Gillaspie, for appellant.

      Bruce Bennett, Attorney General; Jeff Davis, Special Asst. Atty. General, for appellee.
   Ed. P. McFaddin, Justice.

This is a suit by appellants seeking: (a) to have certain lands included in the McKamie-Patton Unitized Pool, or, in the alternative, (b) to obtain a permit to drill for oil and gas on the lands so excluded from the pool. The appellants unsuccessfully sought relief from the appellee Oil and Gas Commission; then the appellants filed suit in the Columbia Chancery 'Court, which likewise denied them any relief ; and this appeal followed.

The Arkansas Oil and Gas Commission (hereinafter called “Commission”) was created by Act No. 105 of 1939 (See Ark. Stat. Ann. § 53-101 et seq. [1947] ) and lias been a tremendous benefit to the State of Arkansas and to the oil fraternity. The Act provided, in § 53-106: “All common sources of supply of crude oil discovered after January 1, 1937, if so found necessary by the Commission, shall have the production of oil therefrom controlled or regulated in accordance with the provisions of this act, ...”

In 1940 oil and gas were discovered in what is now known as the McKamie-Patton Oil Field. The first wells were in Lafayette County; but subsequent development extended the producing area to include a portion of Columbia County. In order to more effectively recover the greatest possible volume of oil and gas from the field, the owners of the “working interests” and of the “royalty interests” joined in a “unitization agreement,” which was filed with the Commission in 1948, and resulted in the unitization of the Reynolds Member of the Smackover Lime Formation. This Formation is hereinafter referred to as “ The McKamiePatton Pool.” It is the oil and gas from this Formation that was involved in Dobson v. Oil & Gas Comm., 218 Ark. 160, 235 S. W. 2d 33; and it is this same Mc-Kamie-Patton Pool that is concerned in the present litigation.

The original unitization agreement of 1948 was made official by order of the Commission of November 8, 1948, so as to embrace lands in sixteen sections in Lafayette County. The unit was enlarged by order of the Commission of April 21, 1950, so as to include lands in two additional sections of Lafayette County, and also one section in Columbia County. On July 20, 1960, the unitized area was further enlarged by the Commission’s order to include additional lands in Lafayette County ; and on August 30, 1963, the unitized area was further enlarged by the Commission so as to include additional lands; so that the McKamie-Patton Pool now embraces several thousand acres.

The present appellants filed a petition with the Commission praying that the northwest 13.8 acres in the NW1/4 NW14, Sec. 34, Twp. 17 S., E. 23 W., in Columbia County, should be added to the McKamiePatton Pool; and the Commission, by order of January 23, 1964, denied the said application. The petitioners also requested that they be allowed to drill a well for oil and gas on their said lands, with the location to be 330 feet south of their north line, and 330 feet east of their west line; and this request for a drilling permit ■was likewise disallowed. Thereupon, the appellants filed the present suit in the Columbia Chancery Court, praying, inter alia-.

“ . . . that this court review the orders of the Arkansas Oil and Gas Commission set forth above and after such review enter its mandatory injunction requiring the Arkansas Oil & Gas Commission to issue an order extending the McKamie-Patton Unit to include the 14.4 acres of the NWI4 of the NWl/4 of Section 34, Township 17 South, Eange 23 West as shown on the attached plat in the McKamiePatton Unit on a just and reasonable basis and assign to said tract its just and equitable share of the total production from the McKamie-Patton Unit; or in the alternative only that this court issue its mandatory injunction to require the Arkansas Oil and Gas Commission to enter its order . . . authorizing the drilling of a well to the Eeynolds Member of the Smackover Lime at the location prayed for

The evidence was heard by the Chancery Court ore tenus-, and both sides presented excellent trial briefs which are a portion of the transcript before us. The appellants introduced evidence, which stands uncontradicted, to the following effect:

(a) Mr. John E. Gaffney, a Consulting Petroleum Geologist whose qualifications were not disputed, testified that he had been familiar with the McKamie-Patton Pool since 1940; that he had made a careful study of all available data on the McKamie-Patton Pool; that the McKamie-Patton Pool had been enlarged by the Commission’s orders three times by reason of wells drilled on the south and east sides of the original boundaries of the pool; that the well the appellants desired to drill, to be located 330 feet east and 330 feet south of the McKamie-Patton Pool would, in his opinion, produce oil and gas that is a part of the unitized pool.

(b) Robert C. Turnham, a Consulting Petroleum Engineer whose qualifications were not disputed, testified that he had been familiar with the McKamiePatton Pool since 1955. We quote a portion of his testimony:

“Q. And what, as a result of this study, can you say with regard to whether or not the Cornelius tract located in the Northwest Quarter of Section 34 is being drained by the wells shown on the plat?
“A. Well, sir, there is no doubt in my mind that the Cornelius tract has been drained by the unit wells.
£<Q. Is it being drained, in your opinion, at the present time?
££A. Yes, sir, it is.
“Q. And lias been by these wells since they have been productive?
“A. Yes, sir.
“Q. What type of productive zone is there in the area of the Cornelius acreage?
“A. The Cornelius acreage, as named by Mr. Gaffney, shows 16.8 acres underlain by the Smackover Oil zone of an average thickness of 29 feet. It also shows 14.4 acres underlain by the Smackover gas zone of an average thickness of 108 feet.
“Q. Is this a highly productive area?
“A. Yes, sir, very high.
“Q. And this well located 1,650 feet away from the Cornelius acreage, how much has it pro - duced?
“A. In excess of a million two hundred thousand barrels of liquid hydrocarbons.
££Q. And this is the well you have testified has drained hydrocarbons from the Cornelius tract along with the other wells?
<£A. Yes, sir.
££Q. What has been the production of gas from this closest well, 1,650 feet away from the Cornelius tract?
“A. It would be an attendant production of approximately twenty-five billion cubic feet.
££Q. And what is the gross value of the condensated gas this well has produced?
££A. Approximately four million seven hundred thousand dollars.
“Q. This is the closest well to the Cornelius tract ?
“A. Yes, sir.
“Q. Have you determined by an engineering method the amount of the drainage that the Cornelius tract, the productive area of the Cornelius tract, has suffered?
“A. Yes, sir, the Cornelius tract, to January 9, 1964, has been drained of hydrocarbons valued at approximately $429,000.00.
“Q. And is it still being drained?
“A. Yes, sir, it’s still being drained at an approximate monthly income of approximately one thousand dollars.
‘ ‘ Q. And that drainage is continuing at the present time?
“A. Yes, sir.
“Q. Have you made an engineering study to determine the estimated present reserves under the Cornelius tract?
“A. Yes, sir, the estimated future drainage losses that this tract will incur will be approximately $275,000.00.
“Q. And could those underlying liquids and gas be recovered by a well drilled on the Cornelius tract ?
“A. Yes, sir, it could.”

(c) Edward A. Albares, Director of the Commission, testified that in 1953 the Commission issued a permit to the Seneca Development Company to drill a well (McLendon-Moore Unit No. 1), located 330 feet from the boundary of the McKamie-Patton Pool; that the well proved to be a producer; and that the acreage was subsequently added to the McKamie-Patton Pool.

The witnesses for the Commission testified that if a permit should be granted the appellants and they drilled at their desired location, it would be a very expensive well to drill; that such well would reduce the pressure in the McKamie-Patton Pool and would damage the entire McKamie-Patton Pool.

Thus we have before us a case where the uneontradicted evidence shows that large amounts of oil and gas have been drained from the appellants’ property and are still being drained, and will continue to be drained at the rate of about $1,000.00 a month, and that all of such oil and gas is going for the benefit of those owners of property located in the McKamie-Patton Pool; and yet we have an order of the Commission refusing to take this land in the pool, and likewise refusing to allow these appellants a permit to drill on their lands. Appellants insist, with considerable merit, that their oil and gas rights are being taken from them without just compensation and that they are being denied any opportunity to protect themselves against such taking. We are so impressed by appellants’ evidence that we turn now to see the defense of the Commission to appellants’ argument.

The Commission insisted before the Chancery Court, and urges here, that neither the Commission nor the Chancery Court had the power to grant the appellants any relief. The Commission insists that in Dobson v. Commission, 218 Ark. 160, 235 S. W. 2d 33, we held that there was no statute at that time which authorized forced unitization; that in response to that opinion Act No. 134 of 1951 was adopted, which, permitted forced unitization when 75% of the working interests and 75% of the royalty interests in the proposed area should agree to such unitization; and that the appellants did not file such a petition with the Commission. In short, the Commission insists that before it, in the first instance, or the Chancery Court, on review, could grant appellants ’ request to add the 13.8 acres to the McKamiePatton Pool, that 75% of the working interests and 75% of the royalty interests in the entire McKamie-Patton Pool of several thousand acres would have to join in such request.

By referring to Ark. Stat. Ann. § 53-115 (1947, Supp. 1965) it Avill be observed that sub-paragraphs C-l to C-5, inclusive, apply Avhen a petition is filed for the initial unitization of a pool; but we call attention to the language in sub-paragraph C-6, which reads:

“ . . . provided that, if the unit operating agreement then in effect with respect to the unit area to which an additional portion of a pool is to be added contains provisions, under the terms of which additions to the unit area may be made the application for such enlargement of the unitized area need only be accompanied by an agreement, executed by persons owning interests in oil and gas under the area to be added to the unit area in numbers sufficient to comply Avith the requirements of C-2(a), for the inclusion, in accordance with the plan provided in the unit operating agreement involved, of the additional area to the unit area then existing.”

We consider this quoted portion of the statute to be applicable here. As previously mentioned, the Commission, in 1960 and again in 1963, enlarged the area of the McKamie-Patton Pool. In each instance the petition for enlargement was made only by the owners of the working interests and the royalty interests in the area sought to be added-, and the Commission held the petition to be sufficient in each instance, because in both the 1960 order and the 1963 order, the Commission specifically found and stated “ . . . that the unit operating agreement in effect at the time of the filing of the petition herein-before mentioned with respect to said unitized area contains provisions under the terms of which additions to the unit area may be made.” Thus, the Commission added additional acreage to the McKamie-Patton Pool in 1960 and again in 1963, upon the application of the working interests and the royalty interests in the area sought tobe added to the McKamie-Patton Pool, and did not require the working interests and the royalty interests in the previously existing pool to join in such application. Evidently the Commission in 1960 and in 1963 proceeded under the proviso language of sub-paragraph C-6; and the Commission should have so proceeded in the case at bar.

The Commission insists that the appellants have not complied with all of the requirements for the adding of their 13.8 acres. Of cour.se, when the Commission grants the petition and adds the 13.8 acres of the appellants to the McKamie-Patton Pool, then the appellants must contemporaneously satisfy the same requirements that were made of the owners of the acreages added by the 1960 order and the 1963 order of the Commission.

Finally, the Commission insists that the appellants are not entitled to any relief because they failed to prove that they were the owners of the 13.8 acres sought to be added. We find no merit in this contention. The answer of the Commission filed in the Chancery Court was merely a general denial. The Commission did not deny relief to these appellants because of any supposed absence of title, and we hold that the appellants proved a sufficient title to justify the relief which they sought. It was shown that in January 1923 JR. R. Cornelius received a deed from the Commissioner in Chancery to the lands here involved; that R. R. Cornelius conveyed all the minerals to his wife; that she conveyed the minerals to the appellants herein (with the exception of JMJedlocJk JHarhison); and that Mrs. Cornelius’ grantees, as owners of the mineral interest, have executed an oil and gas lease to MedlocJk Harbison, who is one of the appellants with them.

In a suit like this, to add acreage to a unitized pool, the petitioners do not have to trace their title from the sovereignty of the soil unless such is specifically demanded by pleadings. Here, the appellants and their predecessors in title have owned these minerals since 1923; and we hold that they have shown sufficient title in the minerals to require the Commission to either take the 13.8 acres into the McJKamie-Patton Pool or to grant these appellants a permit to drill a well on their lands, as they requested. The prayer for drilling the well was in the alternative only. We hold that the petitioners are entitled to have the 13.8 acres made a part of the Mc-Kami e-Patton Pool.

Therefore, the decree of the Chancery Court is reversed and the cause remanded, with directions to issue an order to the Commission to proceed forthwith to add the 13.8 acres of the appellants to the McKamie-Patton Pool, and to assign a tract factor to the said lands, upon the execution by appellants of the proper administrative forms.

Bland, J., not participating.

      The Act No. 105 of 1939 has been amended several times: see Act No. 305 of 1941; Act No. 134 of 1951; Act No. 258 of 1957; Act No. 401 of 1957; Act No. 536 of 1963; and Act No. 41 of 1965.

      Ark. Stat. Ann. § 53-109 (1947) has this definition: “ ‘Oil’ shall mean crude petroleum oil, and other hydro-carbons, . . . ‘Pool’ shall mean an underground reservoir containing a common accumulation of crude petroleum oil or natural gas or both. Each zone of a general structure which is completely separated from any other zone in the structure is covered by the term ‘pool’ as used herein.”

      These orders of 1960 and 1963 will be subsequently mentioned in some detail.

      In some places the acreage is referred to as 14.4 acres. We use the figures indiscriminately.

      Art. II, Sec. 22 of the Arkansas Constitution says: “The right of property is before and higher than any constitutional sanction; and private property shall not be taken, appropriated or damaged for public use, without just compensation therefor.”

      For the benefit of those interested in pursuing further study of the matter, we call attention to an annotation in 37 A.L.R. 2d 434, entitled: “Validity of compulsory pooling or unitization statute or ordinance requiring owners or lessees of oil and gas lands to develop their holdings as a single drilling unit and the like.”

      Here is the wording of the Commission’s brief in this regard: “If a part of a pool producing oil and gas has been unitized in accordance with the provisions of the amendatory act, and it is proposed that a unitization agreement be made effective as to a larger part of the same pool involved which includes the area already unitized, the proponents of the enlarged unitized area must take exactly the same steps to cause the unitized area to be expanded beyond the limits of the part of the pool already unitized as were required, in the first instance, to unitize the smaller unitized area which is to be included in it.”


author: Ed. F. McFaddin, Justice.

text:
    Armstrong v. Cook
    5-3881
    402 S. W. 2d 409
    Opinion delivered May 9, 1966

      Fletcher Long, for appellant.

      Giles Dearing, for appellee.
   Ed. F. McFaddin, Justice.

The appellants (Mr. and Mrs. Armstrong) and the appellee (Mr. Cook) are adjoining landowners; and this is a suit brought by the appellants, seeking to have an easement declared for a roadway over the lands of the appellee, who denied that the appellants had any easement rights. The Chancery Court, after hearing evidence ore tenus, rendered a decree for the appellee, and the appellants bring this appeal, urging two points:

“I. An easement in favor of appellants, where the road is presently located, has been established by prescription.
“II. The appellants as holders of the easement are entitled to improve it to the degree which they proposed.”

The disposition that we make of appellants’ first point will make it unnecessary for us to consider the second point. In 1924 the appellants purchased 67 acres in the Southwest Quarter of Section 31. There is a county road near the west side of the section; also along the north side of the section there is a county road which turns southeast; and in about the center of the Northeast Quarter there is a roadway going about a quarter mile southwest to the appellants’ land. It is this roadway approximately one quarter of a mile in length that is here involved, and it is hereinafter called “the roadway. ’ ’

Appellants’ land is known as the “Pink Thomas Land,” since such named person was a former owner. For many years there has been á house on the Pink Thomas land, and at times the occupants of the house used the roadway in question to get to the county road on the north boundary of Section 31, even though there was a roadway west from the Pink Thomas land to the county road near the west side of Section 31. The roadway over appellee’s land is wide enough to accommodate only a wagon. Originally the roadway went through timber lands, but in recent years the appellee has cleared some of the land and planted a peach orchard, so that the roadway now runs through the orchard.

Appellants’ witnesses testified that for at least 40 years the roadway had been used by the occupants of the Pink Thomas land and by those who were going to see such occupants. The roadway ends at the house on the Pink Thomas land. Because of such testimony of the long use, the appellants claimed that the roadway had been established by prescription. But the long use here shown is not sufficient, in itself, to establish a roadway by prescription, since there are other facts which we now mention. The roadway originally went through timbered lands, and we have repeatedly held that the use of a roadway through unfenced land or timbered land does not, in itself, constitute adverse possession. In Bridwell v. Arkansas Power & Light Co., 191 Ark. 227, 85 S. W. 2d 712, Chief Justice Cecil E. Johnson, speaking for a unanimous Court, said:

“The rule is well established in this State that the long continued use by the public of a way over unoccupied, uninclosed and unimproved real estate is not presumptively adverse, but on the contrary is presumed to be permissive. We so expressly decided in Brumley v. State, 83 Ark. 236, 103 S. W. 615, and there stated the rule as follows: ‘When the public use a road running through open and unfenced lands, without any order of the county court making it a public road and without any attempt to work it or exercise authority over it as a public highway, the presumption is that the use of the road is not adverse to the rights of the owner of the land, but by his consent. When he needs the land, he may withdraw his consent, fence the land, and exclude the public without violating the law.’
‘ ‘ The rule as thus announced was approved in effect and applied in principle in the more recent cases of Merritt Mercantile Co. v. Nelms, 168 Ark. 46, 269 S. W. 563; Caddo Lbr. Co. v. Rankin, 174 Ark. 428, 295 S. W. 52; Bouillon v. Constantine, 186 Ark. 625, 54 S. W. (2d) 986. In the last case cited we restated the applicable rule as follows: ‘While not universally recognized, the prevailing rule seems to be that, where the claimant has openly made continuous use of the way over occupied lands unmolested by the owner for a time sufficient to acquire title by adverse possession, the use will be presumed to be under a claim of right; but where the easement enjoyed is across property that is uninclosed, it will be deemed to be by permission of the owner, and not to be adverse to his title.’
“The testimony under consideration reflects that the way across appellant’s tract of land was used by the public as such for some twenty years, but it does not show that this use by the public was under a claim of right or adverse to the owners of the fee. Moreover, no fact or circumstance of adverse use under a claim of right is presented by the testimony save that the use was long and continuous.”

There was also evidence offered in the case at bar that at one time the occupant of the Pink Thomas land obtained permission from the appellee to be allowed to continue to use the roadway in question. Furthermore, some time after 1964 the appellant, G. L. Armstrong, consulted the appellee as to the improvement of the roadway in question, and appellee agreed that the roadway could be used by the appellants for that year. All of this testimony goes to show that the use of the roadway was at all times recognized as permissive. In view of all of this it follows that the appellants never established any adverse use of the roadway, which adverse use is essential to their successful claim of prescription. See Craig v. O’Bryan, 227 Ark. 681, 301 S. W. 2d 18.

Appellants’ second point relates to the amount of improvement on the roadway that the appellants should be allowed to make. Since we have held that the appellants have no easement rights, it becomes unnecessary to discuss the second point.

Affirmed.

Bland, J., not participating.


author: George Rose Smith, Justice.

text:
    Meeks v. Borum
    5-3869
    402 S. W. 2d 408
    Opinion delivered May 9, 1966

      Lonnie Batchelor, for appellant.

      Franklin Wilder, for appellee.
   George Rose Smith, Justice.

This is a suit by the appellees, C. E. Borum and his wife, to reform a deed by which they conveyed a forty-acre tract to June H. and Yiola Fuquay and to reform a second deed by which the Fuquays in turn conveyed the forty acres to the appellants, T. M. and Addie Meeks. The Borums contend that they meant to reserve four of the forty acres, but by a mutual mistake their deed described the entire forty. This appeal is from a decree reforming the two deeds. Counsel for the appellants urge only one point for reversal, that the plaintiffs’ proof lacks that clear and convincing quality that the law requires in a case of this kind.

After studying the record we are unable to say that the trial court was in error. The Borums are an elderly couple who have been married for about fifty years. In 1926 they bought a 56-acre farm that included the 40 acres now in issue. They moved upon the farm and lived there until they sold part of the land to the Fuquays in 1963. According to their positive testimony they meant to reserve four acres lying west of a county road that crosses the forty, but by mistake the draftsman of the deed, who took the description from a tax receipt, failed to insert the reservation that the parties had in mind.

There are a number of circumstances that convince us of the truth of the Borums’ testimony. At the time of the conveyance Mr. Borum had been almost blind for several years and so was not able to cheek the description in the deed as carefully as someone else might have done. There was a good reason for the Borums to retain the four acres in dispute. Not only was that part of the land separated from the rest of the forty by the road; ■it also provided the only access to the other sixteen acres of the original farm. Without the four acres the Borums would have to travel more than a mile to reach the rest of their property.

There is convincing testimony that after the sale to the Fuquays the Borums remained in possession of the four acres during the two years that preceded the filing of this suit. On one occasion Fuquay inquired about the property on the west side of the road and expressed some desire to buy it from the Borums. At the time of the trial the Fuquays had left the state and could not be called to testify for either side. Hence the Borums’ testimony was not contradicted by the other parties to the sale.

The appellants rely primarily upon the written instruments themselves, but of course the fact that they describe forty acres does not exclude the possibility that a mutual mistake occurred. Moreover, even though the proof to establish the right of reformation must be clear and convincing, there is no requirement that it he undisputed. Foster v. Richey, 192 Ark. 693, 93 S. W. 2d 1258 (1936). In this case we are satisfied that the plaintiffs sustained their heavy burden of proof. No useful purpose would he accomplished hy our detailing at length the proof in a case that turns upon what is essentially an issue of fact. We think the chancellor’s decision was right.

Affirmed.

' Amrt.fr and Bland, JJ., not participating, the latter being disqualified.


author: George Rose Smith, Justice. Carleton Harris, Chief Justice, Ed. F. McFaddin, Justice, Guy Amsler, Justice,

text:
    Olney v. Gordon
    5-3873
    402 S. W. 2d 651
    Opinion delivered May 9, 1966

      Bethell & Pearpe, By: Donald P. Galloway, for appellant.

      Warner, Warner, Rag on & Smith, for appellee.
   George Rose Smith, Justice.

On June 10, 1963, the appellees, Frederick L. Gordon and his wife, obtained a decree in Oklahoma by which they purportedly adopted the nine-day-old son of the appellant, Boyd D. Olney. That decree was entered without the father’s knowledge and without any notice whatsoever to him that such a proceeding was pending. To this day, as far as the record shows, Olney has never laid eyes on his son. For almost three years he has been continuously engaged in litigation, first to learn the whereabouts of his child and then, having at last found his son, to establish his right to take the little boy home with him.

This appeal is from a decree holding that the Oklahoma adoption decree is entitled to full faith and credit in the courts of Arkansas. That means that this father is forever deprived of the right even to see his son. We hold that the chancellor was wrong in his conclusion that the Oklahoma decree is valid and therefore immune to attack.

The facts are best narrated in chronological sequence. Olney and the child’s mother, Betty Ingland, were married in Kansas on June 15,1962, and lived there until their separation in the following November. Betty filed suit for divorce in Liberal, Kansas, alleging extreme cruelty. Olney signed an entry of appearance, but he did not employ an attorney or contest the case. On February 15, 1963, the Kansas court awarded a divorce to Betty. She was then expecting a child, but the decree made no reference to that fact, merely reciting that no children had been born of the marriage.

On June 1, 1963, the Olneys’ child was bom in a hospital in Hugoton, Kansas, even though the city of Liberal, where Betty was living, had its own hospital. In the court below Olney testified without contradiction that he did not learn of the birth of his son until about two weeks later. By then the Oklahoma adoption decree had already been entered.

Frederick and Virginia Gordon, a childless couple, were living in Seminole, Oklahoma, when the Olney child was horn. Virginia had once worked for Herbert Hobble, a lawyer in Liberal, Kansas. Hobble told the Gordons about the Olney baby. The Gordons employed an Oklahoma attorney to handle the adoption proceeding. Betty Olney gave her written consent to the adoption. Hobble accompanied the Gordons when they went to the Hugoton hospital to obtain the baby. The hospital authorities, however, made no record of the Gordons’ identity.

The adoption proceedings, in Seminole, all took place on one day, June 10, and seem, to say the least, to’ have been perfunctory. The petition alleged that Boyd D. Olney was the child’s father, but it was asserted, and the court found, that he was not required to consent to the adoption for the reason that he had been divorced for extreme cruelty. Hence Olney was not given notice of the proceeding. Upon the filing of the petition the court ostensibly appointed a deputy sheriff to investigate the matter. This deputy (whose name Gordon did not recognize at the trial below) at once recommended, “after a proper investigation of the facts,” that the petition be granted. A decree of adoption was accordingly entered.

Back in Kansas Olney learned a few days later that his son had been born in the Hugoton hospital and had been taken away by attorney Hobble and an unidentified couple. Hobble refused to disclose the name or address of his clients. Olney was compelled to file suit against Hobble to get that information. After more than a year of litigation Olney won his case in the Supreme Court of Kansas. Olney v. Hobble, 193 Kan. 692, 396 P. 2d 367 (1964).

There was some additional delay before Olney was finally told that his son was in the custody of the Gordons, who were said to be living in Irving, Texas. Actually they had left Irving, but Olney’s inquiries traced them to Port Smith, Arkansas. There Olney filed the-present petition for a writ of habeas corpus to obtain the custody of his child. This appeal, as we have said, is from a decree holding that the Oklahoma adoption proceeding is entitled to full faith and credit under the Constitution of the United States.

For affirmance of the decree the Gordons rely mainly on an Oklahoma statute which provides that although a child cannot ordinarily be adopted without the consent of its parents consent is not required from a parent who has been divorced on the ground of cruelty. 10 Okl. St. Ann. §§ 60.6 and 60.7 (Supp. 1965). Inasmuch as the Kansas divorce was grounded upon an allegation of cruelty it is argued that Olney’s consent to the adoption of his child was not necessary.

This argument is without merit. In a recent case the Supreme Court of the United States unanimously declared that an adoption decree entered without notice to the child’s father “violated the most rudimentary demands of due process of law” and was therefore void. Armstrong v. Manzo, 380 U. S. 545 (1965). That case contrpls this one.

The appellees’ position might have merit if the Clney divorce decree had been rendered by an Oklahoma court: In that situation it might be said that Olney, by failing to défend an allegation of cruelty, risked the loss of his right to object to the adoption of his expected child. The divorce proceeding, however, took place in Kansas. The Kansas statutes do not purport to dispense with a parent’s consent to adoption when that parent has been divorced for cruelty. K.S.A. §§ 59-2102 and 60-1610 (1964). Hence Olney had not the slightest reason to suppose that his failure to contest his wife’s complaint might result in the permanent loss of his expected child. It was unquestionably a denial of due process of law, under the Armstrong case, supra, for the Oklahoma court to attempt to read the Oklahoma statute into the Kansas divorce decree. It is too plain for argument that ■Olney did not have notice of the proposed adoption in the Kansas case, and hence that case cannot be used as a basis for dispensing with notice in the subsequent Oklahoma proceeding. The Oklahoma decree is void.

The appellees’ other arguments do not call for an extended discussion. It is suggested that Olney’s present suit is barred by our two-year statute of limitations. Ark. Stat. Ann. § 56-112 (1947). This argument overlooks the fact that the Gordons’ conduct in spiriting the child away from Kansas and in failing to give the required notice of the adoption proceeding had the effect of concealing Olney’s cause of action. In the circumstances-he cannot fairly be accused of having slept upon.his rights-; The statute did not begin to run until Olney discovered the Gordons ’ identity. See Kurry v. Frost, 204 Ark. 386, 162 S. W. 2d 48 (1942). . ,.

Finally, counsel for the appellees argue that -it would be to the child’s best interest for him to remain with the Gordons, because they have cared for the infant almost all his life. Such a holding would enable the Gordons to prevail in the dispute by reason of their-own misconduct (though doubtless motivated, we realize, by ill-considered advice of counsel)'. ■ •

In divorce cases, it is true, the best interest of the child controls the award of custody. But such cases involve disputes between parents or other blood relatives who have a recognized legal claim to the right of custody. Those precedents are not in point here. The right of natural parents to the custody of their children, as against strangers, is ‘ ‘ one of the highest of natural rights, and the state cannot interfere with this right simply to better the moral and temporal welfare of the child as against an unoffending parent.” Woodson v. Lee, 221 Ark. 517, 254 S. W. 2d 326 (1953).

In the Woodson case we said that “abandonment by a parent, to justify in law the adoption of his child by a, stranger without his consent,, is conduct which evinces a-, settled purpose to .forego all parental duties.” By that.. standard Olney has certainly not abandoned his child. In the oral argument it was suggested that in the Kansas divorce proceeding Olney was remiss in not insisting that his wife’s attorney insert in the decree some provision requiring Olney to support the child after its birth. That suggestion is much too unrealistic to be taken seriously. For almost three years, in the face of dismaying legal and practical obstacles, Olney has steadfastly persevered in the search for his child. Upon the facts before us it would be little short of absurd to say either that Olney has attempted to avoid his obligations as a father or that he has shown any inclination to surrender the privilege of bringing up his own son.

The decree is reversed and the cause remanded with directions that the writ of habeas corpus be issued, vesting in the appellant the exclusive right to the care and custody of his child.

Harris, C.J., and Amsler, J., concur.

McFaddin, J., dissents.

Bland, J., disqualified.

Carleton Harris, Chief Justice,

concurring. I am forced to agree that, under the law, Mr. Olney is entitled to the custody of his child, though, from the record offered, I sincerely feel that the youngster would be better off to remain with the Gordons. The record, relative to Mr. Olney’s background, habits, character, stability, and reputation, is indeed meager, but the evidence, such as it is, does not leave me overly impressed.

Appellant has been married twice, and each time, was divorced in less than a year. Mr. Olney admitted that he was aware of the fact that his second wife was pregnant at the time the divorce was granted; in fact, he testified that she had told him that the child would be born the last of May. He was, admittedly, aware of the fact that someone would, have to pay the hospital bills, but he made no arrangements to do this, nor did he make any arrangements for medical attention for the wife or unborn child. He offered no financial support whatsoever.

The parties lived in Liberal, Kansas, a small town, at the time of the divorce, and thereafter, the second wife continued to live in Liberal; Olney moved his home, but continued to work in Liberal. It is inconceivable to me that Olney would have been unable to learn of the child’s birth until nearly three weeks after the event occurred. His interest only appeared to awaken after the child had been adopted by the Gordons. I can only hope, now that he is being given custody, that his interest will remain constant, and that the little boy will receive the same love and attention to which he has been accustomed, and will be properly taken care of. The prospects that this will happen are not exactly ideal. Olney states that he intends to leave the child with his sister-in-law while he is at work, and the brother and sister-in-law have four children of their own to look after.

As stated at the outset, I recognize that the law gives Mr. Olney the right to custody of this child, but I am unable, thus far, to conclude that it is for the best interests of the child himself. It is therefore, with reluctance, that I vote to reverse the case.

Ed. F. McFaddin, Justice,

dissenting. I agree with the Majority Opinion that the Oklahoma order of adoption is void insofar as concerned the appellant, Boyd D. Olney, the father of the baby concerned; but I dissent from the concluding sentence of the Majority Opinion which reads: “The decree is reversed and the cause remanded with directions that the writ of habeas corpus be issued vesting in the appellant the exclusive right to the care and custody of his child.”

There is no claim by anyone that the Oklahoma order of adoption was other than valid insofar as concerns the mother of the baby. She gave her written consent to the order of adoption and therefore she was bound by it. So we have a case in which the order of adoption is void as to the father of the child, but valid as to the mother of the child. In such a situation the adopting parents (the appellees, Mr. and Mrs. Gordon) stand in the shoes of the mother, and are subrogated to all of her rights. In a habeas corpus proceeding between the mother and father, the issue is always what is for the best interest of the child. Waller v. Waller, 220 Ark. 19, 245 S. W. 2d 814. The Chancery Court held that the Oklahoma decree was entitled to full faith and credit, and so the Chancery Court never passed on what was for the best interest of the child as between the appellant and the appellees. But in equity appeals, the Supreme Court tries the case de novo on the record, and enters the decree that should have been entered. We should therefore decide what is for the best interest of the child.

The appellees offered abundant evidence in the record now before us that the best interest of the child would be served by giving the appellees his care and custody.' Mr. Gordon is a man 31 years of age, and Mrs. Gordon is 25; they have been married for eight years; they were born and reared in Oklahoma; each has a college degree; and they have no other children. Mr. Gordon is employed by the Geiger Chemical Company and has been so employed since June 1963; and they own their own home in Fort Smith. They took this little baby boy when he was a week old, and they have cared for him and nourished him ever since. The Gordons are members of the Presbyterian Church in Fort Smith, and they attend church regularly. They have insurance policies on the baby so that when he becomes of college age he will go to college. The pastor of the church testified that the Gordons were regular in church attendance, and that Mrs. Gordon taught in the Vacation Church School. The Gordons’ neighbors testified as to their good standing in the community and the fine care that they take of the baby.

Opposed to that testimony there was the testimony of Mr. Olney that he was in a position to support his child; that he had been previously married and divorced before the marriage to the mother of this baby; that he is living with a brother and sister-in-law, who have four children; and that he is expecting his brother and sister-in-law to assist him in looking after the child while he is at work. Neither the brother nor the sister-in-law testified. To take a little baby boy the age of this child away from the people who have had him since he was a week old, and give him to a man who has never known the child and who claims that he has only a brother and sister-in-law to help him look after the child: I cannot believe that such would be for the best interest of the child; and the best interest of the child is always the paramount consideration.

In trying the case de novo on the record, I think we should award the care and custody of the child to the appellees, Mr. and Mrs. Gordon, with Mr. Olney to have full rights of visitation. He remains the father of the child. As the child grows older change of circumstances may come about when Mr. Olney should have the boy during vacation periods from school, etc.; and when the boy becomes fourteen he could be heard to speak his own mind as regards custody. But on the present record I would certainly leave the child with Mr. and Mrs. Gordon.

It is true that the Chancery Court decided this case solely on the question of affording full faith and credit to the Oklahoma decree; and so the Chancery Court has never really passed on what was for the best interest of the child, although that was the question' before the Court on which evidence was introduced, as previously stated. If it should be thought that the Chancery Court should make the initial decision as to care and custody before that issue comes to us, then I would certainly remand the case to the Chancery Court to determine what was for the best interest of the child. Setting aside the order of adoption so far as Mr. Olney is concerned is proper; but it does not follow that when the order of adoption is set aside as far as Mr. Olney is concerned, that he should thereby have the exclusive care and custody of the child. As I have heretofore stated, the appellees stand in the place of the mother of the child on this question of the best interest of the child.

Guy Amsler, Justice,

concurring. I concur in the results reached by the majority in this case but, would reverse on different grounds.

10 Old. St. Ann. § 60.8 (Suppl. 1965) reads as follows :

“Before the court hears a petition for adoption without consent of a parent, as provided in Section 7 of this Act, the consenting parent, legal guardian or person having legal custody of the child to be adopted shall file an application setting out the reason that the consent of the other parent is not necessary, which application must be heard and an order entered thereon in which said child is determined to be eligible for adoption as set out in Section 7 hereof. Said application shall be set for hearing on a day certain and notice of such application shall be given the parent whose consent is alleged to be unnecessary. The notice of the application shall contain the name of the child, or children, for whom application for adoption is made and the date said application is set for hearing and the reason that said child is eligible for adoption without the consent of such parent, and shall be served upon such parent as summons in civil cases at least ten (10) days prior to the hearing. Provided, that if such parent resides outside of the county, such notice shall be given by registered mail at least fifteen (15) days prior to the hearing. Provided, that if the whereabouts of such parent is not known, and this fact be sworn to by the affidavit of the consenting parent, legal guardian or person having legal custody of the child, notice by publication shall be given by publishing notice one (1) time in the newspaper having a general circulation in the county and qualified as a newspaper under the laws relating generally to service of notice by publication, which publication shall be at least fifteen (15) days prior to the date of the hearing.”

Section 7 is the statute, % 60.7, referred to in the majority opinion, which provides that consent is not required from a parent who has been divorced on the grounds of cruelty, as Olney was.

In the Oklahoma adoption proceedings it is conceded by all parties that there was no attempt made to comply with the above statute. No effort was made to serve Olney through personal service, by registered mail or publication. In fact the records of the Oklahoma adoption proceedings affirmatively show that Olney was not notified.

The Supreme ‘Court of Oklahoma has held that service or the giving of notice, as required by § 60.8 is jurisdictional. Copas v. Reents, Okla., 365 P. 2d 983.

This court has said that a habeas corpus proceedings by a parent to obtain custody of an adopted child constitutes a collateral attack upon the order of adoption and that the only inquiry proper to be made is whether the Court ordering adoption had jurisdiction to enter the judgment. Norris v. Dunn, 184 Ark. 511, 43 S. W. 2d 77; Hughes v. Cain, 210 Ark. 476, 196 S. W. 2d 758.

"With respect to the registration of foreign judgments, we have many times held that one of the two matters that may be inquired into is whether the court of the sister state wherein the judgment originated had jurisdiction. Lewis v. United Order of Good, Samaritans, 182 Ark. 914, 33 S. W. 2d 53, and cases cited therein.

It is my conclusion that consistency dictates that lack of jurisdiction of the County Court of Seminole County, Oklahoma, should be the reason for reversing this case.