text:
    Bill CAMPBELL v. STATE of Arkansas
    5783
    485 S.W. 2d 748
    Opinion delivered October 23, 1972

      Rice L. Van Ausdall, for appellant.

      Ray Thornton, Atty. Gen., by: Henry Ginger, Deputy Atty. Gen., for appellee.
   George Rose Smith, Justice.

In 1968 the appellant, while on parole from the penitentiary in Illinois, was arrested in Arkansas upon a charge of forgery and uttering. By agreement with the prosecuting attorney he pleaded guilty, received an eight-year sentence to run concurrently with his Illinois sentence, and was returned to Illinois for further confinement. After serving 26 months there he was released, was brought back to Arkansas, and is now confined by the Department of Corrections here. By petition for postconviction relief he contends that he has served the full time contemplated by his agreement with the prosecuting attorney and is entitled to be released. This appeal is from an order denying his petition.

The facts are not in dispute. M. Burk Dabney, the deputy prosecutor who handled the case in 1968, filed with the clerk at that time a written statement of the agreement. He also testified at the postconviction hearing in the court below. According to Dabney, the agreement was that if Campbell served in Illinois less than the minimum time required for parole eligibility, he would be returned to Arkansas to serve out a minimum sentence here. If, however, Campbell served long enough in Illinois to be eligible for release under the Arkansas eight-year sentence, with time off for good behavior, he would not have to come back to Arkansas. Campbell’s version of the agreement is to the same effect.

After the entry of the Arkansas judgment on August 8, 1968, Campbell served 26 months in Illinois and was then brought back to Arkansas. He had served an additional month here when the postconviction petition was heard in the trial court.

From the undisputed facts it appears that Campbell has served sufficient time to satisfy the terms upon which he agreed to plead guilty. Under § 28 of Act 50 of the First Extraordinary Session of 1968, which was in force when Campbell was sentenced, he was eligible for parole at any time unless a minimum time to be served, of not more than one third of the sentence, was imposed. No such minimum was imposed in the August, 1968, judgment. Furthermore, § 14 of Act 50 also allowed statutory good time of eight days for each month served for the first five years of any term. Dabney so understood the statute, for he testified below: “Normally, we feel a defendant is entitled to parole after he has served a third of his time, and of course we have some time off for good behavior.” Act 50, supra, has since been repealed, but the present statute expressly recognizes its controlling effect with respect to sentences imposed while it was in force. Ark. Stat. Ann. § 43-2807 (c) (2) (Supp. 1971).

Campbell served 26 months in Illinois. He is also entitled to a credit for statutory good time at the rate of eight days for each of those months, which comes to about 6.8 additional months. His total time for parole eligibility was therefore 32.8 months when he was released from confinement in Illinois. Since one third of an eight-year sentence is only 32 months, Campbell served a sufficient time in Illinois to meet the conditions upon which he pleaded guilty. The rest of his sentence should accordingly be suspended, entitling him to be released by the Department of Corrections.

The judgment is reversed and the cause remanded for further proceedings, with an immediate mandate to be issued.

Fogleman, J., not participating.


source: Caselaw Access Project

author: Lyle Brown, Justice.

license: Public Domain

text:
    MISSOURI PACIFIC RAILROAD CO. v. Hazel HUGGINS
    5-6027
    485 S.W. 2d 723
    Opinion delivered October 23, 1972

      William J. Smith and George Pike Jr., for appellant.

      Lonnie C. Turner, Jack Yates and John J. Cravens, for appellee.
   Lyle Brown, Justice.

The single issue on appeal is whether appellant railroad can, after order of entry and completion of work but before trial, dismiss its eminent domain proceeding and restrict its liability only to damages caused by its occupancy of the land.

Appellee’s land joined the railroad right-of-way. Located on the land was a large protruding rock which was thought to be in danger of falling over on the right-of-way. The railroad petitioned the chancery court to enter upon the land and remove the rock. Permission was denied and the court granted the landowner’s motion that the matter be transferred to circuit court and that the railroad be required to proceed as in eminent domain cases. Thereafter the railroad filed a condemnation proceeding in circuit court to condemn .85 of an acre. The prayer of the complaint asked that the land be condemned as a part of appellant’s right-of-way. Deposit was made and an order of entry obtained, whereupon the railroad entered the property and removed the rock. The railroad subsequently filed a motion to dismiss the eminent domain complaint subject to the landowner’s right to assert a claim for any damages sustained. That motion was denied and the railroad was put to trial. The theory of the case, as explained to the jury in instructions, was that appellant was to pay for the taking of the .85 of an acre by easement; and that the measure of damages was the difference in fair market value of the lands before and after the taking.

First, we point out that there was no appeal from the order of the chancery court which placed the matter in circuit court. Secondly, we have been cited to no precedent which fits the facts of the case before us. Appellant urges that a case squarely in point is that of Reynolds v. Railway Co., 59 Ark. 171, 26 S.W. 1039 (1894). There we find this general statement:

There is no provision in the constitution or statute that a party who has once instituted proceedings to condemn property shall be bound to go on and complete the proceedings and take the property. There is nothing in either which works a forfeiture of the deposit, or which fixes a charge upon it, beyond the amount of damages which may be sustained by the landowner by reason of the proceedings.

Reynolds did not involve an entry by the railroad. The petition had been filed and a bond had been posted; the next procedure was the filing of a motion by the railroad to dismiss the proceedings. The right to withdraw their petition was approved by this court. We are furnished one other citation in support of appellant’s theory, Pine Bluff & Western Ry. Co. v. Kelly, 78 Ark. 83, 93 S.W. 562 (1906). There the trial court dismissed the petition for condemnation after the railroad had built its right-of-way thereon. There was no appeal from that order. The only question on appeal was the measure of damages to which the landowner was entitled.

We hold that when a railroad posts bond, obtains an order of taking, enters upon the property and completes its work, it is obligated to pay just compensation based upon the difference in fair market value before and after the taking. This is based upon the rule in many states that fundamental fairness dictates that there should be a point at which the railroad cannot turn back and escape the payment of full compensation based on a taking. 6 Nichols Em. Dom. §§ 26.42, 26.42 [1]; Brazos R. Conservation & Reclamation Dist. v. Allen, 141 Tex. 208, 171 S.W. 2d 842 (1943); United States v. Yazoo & M.V.R. Co., 4 F. Supp. 366 (E. D. La. 1933). We have reviewed the special statutes under which railroads exercise condemnation, Ark. Stat. Anno. § 35-201 et seq. (Repl. 1962), and our holding does not offend those statutes. Furthermore, our view harmonizes with our constitution, Art. 12, § 9, which provides that a corporation cannot appropriate land to its use without first paying full compensation therefor.

Finally, we point out that the trial court instructed the jury on damages based on a taking. There were no objections to the giving of those instructions.

Affirmed.


text:
    William BURTON v. STATE of Arkansas
    5770 & 5771
    485 S.W. 2d 750
    Opinion delivered October 23, 1972

      Givens & Capps, for appellant.

      Ray Thornton, Atty. Gen., by: James A. Neal, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

In case 5770 appellant was convicted of violating Ark. Stat. Anno. § 41-1127 (Repl. 1964) making it unlawful for a person, with lascivious intent, to knowingly and intentionally expose his or her private parts to a person under the age of fourteen years. For reversal appellant contends (1) that the information charged a crime on October 14, 1971, and the evidence indicated the crime, if committed, was on August 7, 1971, and (2) that the State failed to prove lascivious intent.

In case 5771 the trial court revoked a suspended sentence as an aftermath of the first recited incident. Appellant contends that such action was arbitrary.

The evidence for the State consisted of the testimony of a thirteen-year old female and her sister of the age of fifteen years. That testimony indicated that the girls were walking home from Southwest City Mall in Little Rock; that they heard a cough and some leaves rustling; and that they looked in that direction and saw a nude man, standing or sitting by a tree, fondling his privates. The distance between the appellant and the girls was comparable to the length of the courtroom. The girls conceded that the man made no overtures to them.

If appellant was acting in such manner toward the girls as to indicate sexual interest, or if his acts were expressive of lust or lewdness, or if his actions were for the purpose of arousing his sexual desire, then, in either eventuality his actions were “lascivious”. The Random House Dictionary (1967). The trial court was warranted in finding, from all the circumstances in the case, that lascivious intent was established.

The next point concerns the variation in the dates in the information and the evidence. In the first place we find no objection to have been made at the trial level. Secondly, the corrected date was furnished in a bill of particulars prior to the trial, and that was sufficient. Inklebarger v. State, 252 Ark. 953, 481 S.W. 2d 750.

Now as to the revocation of a suspended sentence in case 5771. That case was pending in another court division. At the time of the hearing thereon, appellant had been convicted but had not been sentenced in case 5770. We see no sound reason why the court, in 5771, could not take cognizance of the conviction in 5770 prior to his being sentenced in 5770. Furthermore, no prejudice was shown because the trial court in the indecent exposure case postponed sentence in that case so that the sentence could be made to run concurrently with the sentence in case 5771. Appellant has wholly failed to show a gross abuse of discretion, which is required before this court will disturb a revocation. Maddox v. State, 247 Ark. 553, 446 S.W. 2d 210 (1969).

Affirmed.


author: John A. Fogleman, Justice.

text:
    Arthur Roy JORDAN and Ruby Lee JORDAN v. Esther GUINN and Inez ETHERIDGE
    5-6015
    485 S.W. 2d 715
    Opinion delivered October 23, 1972

      Robert S. Irwin, for appellants.

      Gordon ir Gordon, P.A., for appellees.
   John A. Fogleman, Justice.

Appellants and appellee Esther Guinn deraign title from a common source, i.e., W. H. Dunn. Inez Etheridge acquired a tract adjoining the Guinn property, but her claim of title came through a different source. This litigation arose from a controversy about a “road” running across the north side of the Jordan tract. Appellees instituted this action to require appellants to remove a fence across the east end of the “road” and a gate across the west end. They alleged that the way had become a public road by virtue of its construction and maintenance by Conway County, its prescriptive use by the public for more than seven years and its incorporation into the county’s public highway system by operation of Ark. Stat. Ann. § 76-107 (Repl. 1957). Appellants denied the existence of a public road and alleged that any use of the road by appellees was permissive only. The complaint was later amended to assert the oral dedication of the way in question as a public road across the Jordan tract by W. H. Dunn at the time of his purchase of the property.

The chancellor found that the way across the Jordan land was not a public road, but held that an easement appurtenant was granted by Dunn when he sold the Guinn tract to one Farris, for the benefit of Farris and the public generally, as a means of access to the Farris land, of which appellants and other subsequent purchasers of the Dunn land had notice, and by which they, were bound. He further found that the easement was 20 feet wide and that the fence and gate erected constituted an unreasonable obstruction. The court directed the removal of the gate and fence.

Appellants list four points for reversal, viz:

I. The trial court erred in finding that an easement appurtenant in favor of a dominant tenement across a servient tenement extends to appellee Etheridge, who is a stranger to the title here involved.
II. The testimony of the witness concerning the width of the alleged easement was elicited by the court over the objection of appellant and is an indispensable element of proof which appellee had totally failed to make.
III. The proof of the width of the alleged easement is too vague and indefinite to support a finding that it was exactly twenty (20) feet wide.
IV. The proof shows that the common grantor, W. H. Dunn, controlled his and others’ use of the land in question by fences and gates in the same manner appellant is now attempting to do. The character of the easement, if any, should pass to appellee, unenlarged.

We need not consider appellants’ Point I because it is moot. The chancery court dismissed the complaint of appellee Etheridge. There is no appeal from that part of the decree.

The finding that the easement was 20 feet wide was based upon the testimony of W. H. Dunn elicited by questions asked by the chancellor. Dunn had testified that he had excluded the way from a deed to a man named Williams, a predecessor in title of Jordan, to part of the Jordan lands. The chancellor, after direct and cross-examination and redirect and recross-examination had been concluded, first ascertained that examination by counsel for the respective parties had been completed, and then commenced a line of inquiry as to the order in which Dunn sold various tracts of land involved and specifically asked the witness how far short of Dunn’s north line the tract sold Williams ran. Dunn replied “Approximately 20-24 feet.” The chancellor also asked the width of the tract Dunn withheld from the Williams deed, and Dunn responded that it was at least 20 feet, if not 24 feet. When asked to state his reason for not deeding this strip to Williams, Dunn replied that a road had been established there. No objection was made by either party to any of these questions or answers. When the chancellor asked Dunn to state the present width of the road, over appellants’ objection, the witness said that it was at least 20 feet. We find no reversible error.

The rule governing examination of witnesses by a circuit judge in a jury trial has been clearly established in Arkansas for many years in decisions such as Sharp v. State, 51 Ark. 147, 10 S.W. 228; Arkansas Central R. Co. v. Craig, 76 Ark. 258, 88 S.W. 878, 6 Ann. Cas. 476; and Ratton v. Busby, 230 Ark. 667, 326 S.W. 2d 889, 76 A.L.R. 2d 751. A restatement of the rule in the Ratton case included the following:

The judge has the right, in a criminal prosecution, to interrogate the witnesses but he has no right to usurp the place of the state’s attorney, “and prescribe the order of introduction of the witnesses, and become active in their examination”; nor has he the right to assume the duties resting on the prisoner’s counsel in the general conduct of the defense. He may ask questions which the attorneys had the right to propound, and failed to ask, when the answers to the same may tend to prove the guilt or innocence of the accused. It would be a reproach to the laws of the state, if he was required to sit and see the guilty escape, or the innocent suffer through a failure of par- . ties or their attorneys to ask a witness a necessary question. * * * In all trials the judge should preside with impartiality. In jury trials especially, he ought to be cautious and circumspect in his language and conduct before the jury. He should not express or intimate an opinion as to the credibility of a witness, or as to controverted facts. For the jury are the sole judges of fact, and the credibility of witnesses; and the constitution expressly prohibits the judge from charging them as to the facts. * * #
Counsel for appellant contends with much force that the judgment should be reversed because the presiding judge during the trial propounded questions to the witnesses for plaintiff and defendant. The contention is not that these questions were improper, had they been propounded by counsel for plaintiff, but the contention is made that by propounding a number of questions the judge thereby assumed the role of attorney, and in that way indicated to the jury his opinion of the evidence, and prejudiced the. rights of the defendant. It is true that a judge, under our law, should neither directly nor indirectly indicate to the jury his opinion of the facts in the case when the same are in dispute, and when the jury are to determine what the facts are. * * * It seems to be the general rule well supported by the decided cases, that the trial judge has the right to propound such questions to witnesses as may be necessary in order to elicit pertinent facts, in order that the truth may be established. Of course, this must be done in a reasonable and impartial way, so as not to indicate his opinion of the facts, and thereby prejudice the rights of the parties. * * * It is not usually necessary that the judge should propound many questions to witnesses, and for the judge to take the case out of the hands of counsel and take the lead in the examination of witnesses might at times be improper and prejudicial. But it would be a reproach to the law if he were required to sit still in either a civil or criminal trial, and see justice defeated through the failure of counsel to ask a witness a pertinent question.

Even in a criminal case, where the reasons for restraints upon the trial judge’s examination of witnesses are of greater import than in civil cases, the judge is not merely a chairman presiding at the trial, who must remain mute, after convening the court, until a party calls upon him to make a ruling, a disorder occurs in the courtroom, or the appropriate time for a recess or adjournment is reached. See Arkansas Central R. Co. v. Craig, supra. He has some responsibility for the proper conduct of the trial, the ascertainment of truth and the achievement of justice. See, Glasser v. United States, 315 U.S. 60, 62 S. Ct. 457, 86 L. Ed. 680 (1942); People v. Corrigan, 48 Cal. 2d 551, 310 P. 2d 953 (1957). He .has the right and the duty to ask questions to clear up ah obscurity in the testimony or even to develop facts in regard to some feature of the case he feels has not been properly developed. Flake v. State, 159 Ark. 37, 251 S.W. 362; New v. State, 99 Ark. 142, 137 S.W. 564. See also, Hayes v. State, 142 Ark. 587, 219 S.W. 312; People v. Rigney, 55 Cal. 2d 236, 10 Cal. Rptr. 625, 359 P. 2d 23, 98 A.L.R. 2d 186 (per Traynor, J.) (1961); People v. Bookhammer, 223 Cal. App. 2d 278, 35 Cal. Rptr. 779 (1963). The reasons for restraint are minimal when the judge is the trier of the facts, and his responsibilities for elicitation of all pertinent facts are perhaps increased. People v. Miller, 41 Cal. App. 2d 252, 106 P. 2d 239 (1940). There seems to be little room for doubt that the inquiry to which objection was made would have been properly allowed if made by a juror. See Ratton v. Busby, supra.

While we do not seem to have been called upon to rule upon the identical situation, logic dictates that we follow virtually unanimous authority holding that the extent of examination of a witness by the presiding judge who is the trier of the facts rests largely in his sound judicial discretion, especially when, as here, examination by the parties has been concluded. Glasser v. United States, supra; United States v. McCarthy, 196 F. 2d 616 (7th Cir. 1952); People v. Palmer, 26 Ill. 2d 464, 187 N.E. 2d 236 (1963), cert. denied sub nom Fingers v. Illinois, 373 U.S. 951, 83 S. Ct. 1681, 10 L. Ed. 2d 206 (1963); People v. Palmer, 27 Ill. 2d 311, 189 N.E. 2d 265 (1963); People v. Harrell, 252 Cal. App. 2d 735, 60 Cal. Rptr. 864 (1967); People v. Miller, supra; People v. Bookhammer, supra; Shehyn v. Humphrey, 117 A. 2d 448 (Mun. Ct. App. D. C. 1955). See also, Annot. 57 L.R.A. 875, 878 (1903); L.R.A. 1916A 1191, 1192 (1916); 6 Ann. Cas. 477 (1905). We find no abuse of discretion in this case. We further find that the testimony clearly supports a finding that the easement was 20 feet wide, the minimum width stated by Dunn.

We understand that appellants, in their fourth point, are contending that the character of the easement granted permitted the owner of the servient estate to place obstructions in the way and that the gates and gaps placed across the easement did not materially differ from obstructions formerly maintained by Dunn. There is ho question about Dunn’s intention that his grantees have an easement for ingress and egress across the property to which he retained title, which includes that now owned by the Jordans. The chancellor made a specific finding that the gate and fences placed across the way represented an unreasonable obstruction of the way, and ordered their immediate removal.

The general rule regarding the obstruction by fences or gates of such private easements by the owner of the servient estate is that a fence may not be erected so as to entirely obstruct the way, but that unless it is expressly stipulated or it appears from the terms of the grant or the surrounding circumstances that the way shall be an open one, without gates, the owner of the servient estate may erect gates across the way if they are so located, constructed or maintained as not unreasonably to interfere with the right of passage, when they are necessary for the preservation and proper and efficient use of the lands constituting the servient estate. 28 C.J.S. 781, Easements, § 98(b); 25 Am. Jur. 2d 497, § 91. See Hockersmith v. Glidewell, (Ark. unreported) 153 S.W. 252; Restatement of the Law of Property, Servitudes, § 486.

Although we were dealing with a prescriptive easement, we followed the general rules in Massee v. Schiller, 243 Ark. 572, 420 S.W. 2d 839. We there noted important considerations to be weighed in determining the extent of the easement and the right of the servient owner to place gates across the way. For example, we referred to comments by the authors of Restatement of the Law, Property-Servitudes, that, as the extend of the easement becomes more difficult to discover, the relations between the owner and the possessor of the servient estate become increasingly subject to the governing principle that neither shall unreasonably interfere with the rights of the other, that what is reasonable in one situation may become unreasonable in another and may vary with conditions as they develop and that the determination as to unreasonableness depends primarily upon consideration of the relative advantage to the owner of the servient estate and the disadvantage to the easement owner. We concluded that what is reasonable or unreasonable depends upon the facts and circumstances of the particular case and that reasonable minds might differ on the subject. In other words, the question is generally one of fact. See also, Hockersmith v. Glidewell, supra; 25 Am. Jur. 496, 498, Easements and Licenses §§ 89, 91.

Pertinent factors to be considered include the terms of the grant, the intention of the parties as reflected by the circumstances, the nature and situation of the property and the manner in which it has been used and occupied before and after the grant and location of gates. See Annot. 73 A.L.R. 778, 25 Am. Jur. 497, Easements and Licenses, § 91; 28 C.J.S. 781, Easements § 98; Restatement of the Law of Property, Servitudes, § 483.

The difference in the judicial determination of the extent of easements by prescription and by grant lies largely in approach arid process. In the case of an easement by prescription both its creation and extent are ascertained from the adverse use of the property over a long period of time. In the case of an easement by grant, the creation is evidenced by the language and circumstances of the grant, and the extent of the easement is to be ascertained from the language construed in the light of relevant circumstances. The relative importance of the language and the circumstances varies from case to case, depending upon the completeness and clarity of the language used. The less complete or clear the language, the more important the circumstances become. Uses by the owner of the servient tenement made prior to the grant, as well as those made subsequent thereto, and the actions of the parties with reference to the easement after the grant may be considered insofar as they aid in the ascertainment of the extent and meaning of the grant. Comments, Restatement of the Law of Property, Servitude, § 483.

Whatever right the Jordans may have to place obstructions across the easement of appellee Guinn, such obstructions must not be of such a character as to interfere with the reasonable enjoyment of the easement by Esther Guinn, and must be for the purposes appropriate to the Jordans’ use of their own property, not for the purpose of annoying the easement owner or obstructing her in the use of the way. See Hockersmith v. Glidewell, supra. We find nothing in the evidence to indicate any express agreement that the way would be open or that Dunn retained the right to maintain any gates or gaps.

Orville Guinn, father of Esther Guinn, who actually dealt with Dunn in purchasing the property deeded to his daughter, testified that Roy Jordan had closed, blocked or “stopped up” the road by a gate at one end of the Jordan property and a fence at the other and that one could not go into or from his daughter’s property over the way after Jordan had placed gates across it. Esther Guinn testified that the road was “blocked off.” Dunn also testified that the road was closed, as did Inez Etheridge, who stated that Jordan first blocked the way by parking his car in it. Mrs. Jordan testified that in order to give notice that people should not cross the Jordan property a fence was built across the strip about which this dispute arose and that the parking of the Jordan vehicle across it was to protect the interest of the Jordans in keeping that land to themselves. Mr. Jordan also said that he blocked passage over the “road” first by parking a car across it and later by a fence.

We find no evidence that the gate and fence were placed across the way for any purpose relating to appellants’ use of the servient estate or any purpose other than to prevent its use as a means of ingress to and egress from the Guinn property. Appellant places his principal reliance for the right to place barriers across the way upon testimony of Dunn about having once had a gap at the west side of the Jordan property. As we read this testimony, the gap was maintained by Dunn at a time when he owned both the Guinn land and the Jordan property. Even though Dunn stated that he had a gap there when he “pastured it,” we cannot say that he had particular reference to one or the other of the tracts now owned by the parties to this action. Furthermore, we cannot say when Dunn “pastured” the land, even with relation to the sales of the Guinn and Jordan tracts.

It is clear that appellants had no right to completely obstruct the way. From our review of the circumstances and of the evidence pertaining to the use of the easement, we are unable to say that the chancellor’s finding that the fence and gate constituted unreasonable obstructions was clearly against the preponderance of the evidence.

The decree is affirmed.


author: J. Fred Jones, Justice.

text:
    Frank RICCI and Gladys RICCI v. John POOLE and Betty POOLE
    5-6025
    485 S.W. 2d 728
    Opinion delivered October 23, 1972

      Thomas D. Ledbetter, for appellants.

      W. Q, Hall, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Frank Ricci and Gladys Ricci, his wife, from an order of the Madison County Circuit Court granting the motion of the appellees, John Poole and Betty Poole, to dismiss an appeal from the Madison County Court and dismissing the appellants’ motion for certiorari.

The facts of record appear as follows: Mr. and Mrs. Poole attempted to lay out and establish a private road across the Riccis’ land in Madison County and in doing so followed the statutory procedure set out in Ark. Stat. Ann. §§ 76-110-111 (Repl. 1957). A hearing was had, viewers were appointed and their report was made to the county judge as provided for in § 76-110. On April 16, 1971, the Madison County Court entered its order laying out the road across the lands of Mr. and Mrs. Ricci and awarding damages therefor as prescribed in § 76-111, the last sentence of which reads as follows:

“Either party may appeal to the Circuit Court from said order within sixty (60) days from the rendition of such order, and not thereafter.”

As above stated, the county court order was dated April 16, 1971, and according to the record no further action was taken in the matter until on September 2, 1971. Mr. and Mrs. Ricci filed a motion in the Madison County Court alleging that the proceedings had in said court for the establishment of a private road were not conducted in the manner required by law, in that Mr. and Mrs. Ricci had not been given notice of hearing ion the original petition filed by Mr. and Mrs. Poole for the laying out of a road across the Ricci lands. Mr. and Mrs. Ricci prayed in their motion that the order laying out the road be vacated and a new hearing conducted, or in the alternative that they be granted an appeal to the circuit court.

Apparently the motion was denied by the county court, for on October 5, 1971, Mr. and Mrs. Ricci filed their motion as respondents in the circuit court praying a de novo hearing on the original petition filed by Mr. and Mrs. Poole in the county court. The appeal to circuit court was dismissed as untimely filed but the circuit court considered the Riccis motion as a petition for certiorari to the county court, but also denied certiorari.

On appeal to this court Mr. and Mrs. Ricci rely on the following points for reversal:

“The Circuit Court erred by failing to grant Appellants’ Motion for an Appeal of the County Court Orders.
The Circuit Court erred by failing to grant Appellants’ Petition for a Writ of Certiorari to obtain review of the County Court Orders.”

We find no merit in either of these points. The record reveals that the petition for private road was filed on May 8, 1970, and hearing on the petition was set for May 27, 1970. According to sheriff’s return in the record Mr. and Mrs. Ricci were personally served with a written notice of this hearing on May 7, 1970. On May 8, 1970, Mr. and Mrs. Ricci filed a motion to strike the notice served on them. Following the hearing on May 27, 1970, the county court filed its order on June 16, 1970, setting out that Mr. and Mrs. Ricci owned the lands involved and that their lands lay between the petitioners’ lands and the public road, and that the petitioners had no outlet from their lands to the public road. This order found that it was necessary for the petitioners to cross the lands of the Riccis and that the Riccis had refused to allow the petitioners to construct the road over their lands. The county court then appointed viewers and directed them to lay out the most feasible route over the Riccis’ lands. The record is clear that Mr. and Mrs. Ricci had notice of the hearing conducted by the county court from which that court determined the necessity of laying out a private road over the Riccis’ property.

The appellants argue that they received no notice that the county court had entered its order of April 16, 1971, laying out the road across their land until July 27, 1971; that following actual notice, they proceeded in a timely manner to obtain a rehearing and appeal. Ark. Stat. Ann. § 76-111 provides for the county court order establishing a private road, but it does not provide for notice to anyone that the order will be, or has been, entered. This section does not provide for an appeal within 60 days from the date of notice, but does provide for an appeal to the circuit court within 60 days from the rendition of the order and not thereafter. The motion filed in county court by Mr. and Mrs. Ricci to set aside the original order laying out the road, was filed almost five months after the original order was rendered and in this motion Mr. and Mrs. Ricci state:

“That the instant proceedings, to establish a private road across Respondents’ real property aforesaid, were not conducted by this Court in the manner required by law, specifically related to the fact Respondents nor their Attorney of record were ever notified by Petitioners or by this Court that any hearing would be conducted on said Petition.”

As already stated, the record recites not only that a copy of the notice of the May 27, 1970, hearing was served by the sheriff of Madison County on Mr. and Mrs. Ricci personally on May 7, 1970, but the record shows that the very next day Mr. and Mrs. Ricci responded to the notice by filing a motion to strike.

The appellants very candidly acknowledge this court has held that the filing of a motion for rehearing does not toll the running of the time for appeal unless an extraordinary circumstance or event would warrant variance of this general rule, Covington v. Shackleford, 222 Ark. 374, 259 S. W. 2d 676, but the appellants contend that an extraordinary circumstance has occurred in this case in the form of a “procedural casualty.” It would appear that any procedure under which appeal time runs would constitute a “procedural casualty” to the right of appeal. The appellants cite cases in support of their argument that the time period during which an appeal may be lodged is suspended while a motion for rehearing is pending in the trial court. The fallacy in this contention in the case at bar, lies in the fact that the appeal time had long since run before the appellants ever filed their motion for rehearing in the county court. The appellants have cited no case and we have found none holding that the mere filing of a motion for a new trial revives or reinstates the period of time in which appeal may be perfected. Even if the trial court was correct in calculating the appeal time from the date appellants’ attorney received notice of the order, rather then from the day of its rendition as provided by statute, “not later than July 28, 1971,” still the appellants had notice for more than 60 days when they filed their notice of appeal on October 4 or 5, 1971.

As to appellants’ second point, we agree with the appellants that a trial court has considerable discretion in granting certiorari to county courts, but we agree with the appellees that certiorari is not a substitute for an appeal. North Little Rock Transportation Co. v. Sangster, 210 Ark. 294, 195 S. W. 2d 549. It is true that we have held the general rule to be that “certiorari is not a writ of right but a writ of discretion,” but unless the trial court abuses its discretion in denying or granting a writ of certiorari this court will not reverse the decision of a trial court in granting or denying the application for a writ of certiorari. Hill v. Taylor, 199 Ark. 695, 135 S.W. 2d 825. We find no abuse of discretion in this case. As a matter of fact the circuit court judge in his letter of January 7, 1972, addressed to the attorney in this case very clearly states the law on this point, as follows:

“A. S'. 22-302 empowers the Circuit Court to issue writs of certiorari under the circumstances stated therein. One of the grounds stated, is ‘to correct any erroneous or void proceeding’ of ‘any inferior tribunal.’ This has been held repeatedly to not enlarge the remedy of appeal. As stated in North Little Rock Transportation Co. v. Sangster, 210 Ark. 294, (1946), quoting Burgett v. Apperson, 52 Ark. 213:
The writ of certiorari may be used not only to correct a want of jurisdiction but also the erroneous proceedings of an inferior tribunal. But, it will not lie to review mere errors at the instance of one who has lost the right of appeal by his own fault, or, who neglects to apply for the writ as soon as possible after the necessity of resorting to it arises. The period within which the writ of certiorari may be granted is not limited by statute. Where, however, it is sought as a substitute for appeal the time within which an appeal might have been prosecuted is adopted by analogy.
Appellants not having shown any grounds for a writ of certiorari other than alleged errors which could have been corrected on appeal. . .“

The judgment of the trial court is affirmed.


text:
    Lelan L. NEWBERRY v. FIREMAN’S FUND INSURANCE COMPANY of San Francisco, California; J. I. CASE Company; J. I. CASE CREDIT Corporation, and Curtis CRUSE d/b/a CURTIS CRUSE COMPANY
    5-6031
    485 S.W. 2d 731
    Opinion delivered October 23, 1972

      Rhine fa Rhine, for appellant.

      Teague, Bramhall, Davis fa Plegge, for appellees.
   J. Fred Jones, Justice.

This is an appeal by Lelan L. Newberry from a decree of the Greene County Chancery Court wherein Newberry’s complaint against Fireman’s Fund Insurance Company, J. I. Case Company, J. I. Case Credit Corporation and Curtis Cruse d/b/a Curtis Cruse Company was dismissed and judgment was rendered in favor of J. I. Case Credit Corporation against Newberry in the amount of $1,545.23, together with costs and $150 attorney’s fee.

On his appeal to this court Mr. Newberry relies on the following points for reversal:

“The lower court erred in not finding appellee insurance company was negligent and violated its insurance contract by waiting more than 60 days to negotiate an adjustment of this loss and failing to make any adjustment with this appellant and permitting this tractor (the insured property) to be sold after this suit was started.
The lower court erred in not finding that the J. I. Case Credit Corporation caused a violation of the sale contract and breached its contract with Mr. New-berry by selling the tractor before the insurance adjustment was made and after this suit was filed, thereby causing a rescission of the sale contract.”

The facts as we gather them from the record are as follows: On or about November 20, 1969, Mr. Newberry purchased a new Case tractor from the local Case tractor dealer, Curtis Cruse d/b/a Curtis Cruse Company, for a total sale price of $7,665. Mr. Newberry traded in his old tractor for a credit of $2,000 on the purchase price of the new tractor and executed his note for the balance of the purchase price in the amount of $5,665. This amount was to be paid in equal annual installments of $1,819.98 payable on December 1, 1970, and on December 1 each year through 1973. Under the installment contract Mr. Newberry agreed to furnish physical damage insurance on the tractor, and by his contract he authorized the seller to obtain the insurance at a cost of $123.97 to be added to the note. This insurance was obtained through a policy issued by Fireman’s Fund Insurance Company of San Francisco, with J. I. Case Company, J. I. Case Credit Corporation, Curtis Cruse d/b/a Curtis Cruse Company, as well as the purchaser Leían L. Newberry, being the named beneficiaries under the terms of the policy as their interest should appear. Mr. Newberry took delivery of the tractor and used it in his farming operations until on or about October 31, 1970, when the tractor was damaged by fire. On November 2, 1970, Mr. Newberry notified Curtis Cruse of the loss and requested that the insurance company be notified and the loss adjusted. Mr. Newberry claimed that the tractor was a total loss because of the fire and that was his contention at all times.

On or about December 11, 1970, upon request of an insurance adjuster for Fireman’s Fund, the Case tractor dealer, Curtis Cruse, picked the tractor up and removed it to the company’s place of business in Paragould, Arkansas. While the tractor was in the possession of Curtis Cruse Company and before any adjustment was made on the insurance loss, the December, 1970, installment became due on the purchase price of the tractor and in January, 1971, Mr. Newberry received notice from the J. I. Case Credit Corporation that the payment was past due. On January 20, 1971, Mr. Newberry, through his attorney, advised the J. I. Case Credit Corporation by letter that the tractor was destroyed by fire and that the Case dealer, Mr. Curtis Cruse, had picked up the remains of the tractor; that the insurance adjuster had advised Mr. Newberry that he would be contacted by the J. I. Case Company and the insurance company, and that a settlement of the loss would be made. The letter then advised that no further information had been received by Mr. Newberry and that he was in need of a new tractor but was waiting settlement of the insurance.

Apparently some negotiations were carried on, or at least some discussion was had, between the General Adjustment Bureau representing the insurance company and Mr. Newberry pertaining to the repair of the tractor in settlement of the claim under the insurance policy, because on February 11, 1971, Mr. Newberry’s attorneys wrote a letter to Mr. Felts of the General Adjustment Bureau which stated in part as follows:

“Mr. Newberry does not want to accept this tractor after it has been repaired for the reason it will, not carry a guarantee and he feels that the fire did permanent damage to the tractor.”

The tractor was repaired at a total cost of $1,991.10.

By letter dated February 14, 1971, from J. I. Case Credit Corporation to Mr. Newberry, a previous meeting between the parties was mentioned and the letter then stated in part as follows:

“We will extend the account until 2-18-71, and at that time you are to give us a decision as to paying the payment, plus interest, and signing the insurance check covering the repairs to the tractor, which is now stored at Mr. Cruse’s place of business.
This letter will further confirm that, if you do not wish to pay the payment and sign the check, we will have to take the necessary action we deem proper in protecting our security after February 18th.”

Under date of February 18, 1971, Mr. Newberry, through his attorneys, responded to the J. I. Case Credit Corporation’s letter of February 15 in part as follows:

“We feel you should insist on an insurance adjustment in this matter before any suit is brought against Mr. Newberry; however, if you do file suit in this matter, we will bring the insurance company into the suit and will file a counterclaim against the Case Tractor Company and the insurance company for damages caused by the taking of this tractor and the delay in making a proper adjustment in this matter.
We have asked the insurance company to confer with us about an adjustment. This they have not done. It is very possible that a lawsuit will be the only way this case can be settled, and we prefer that you start it.”

The J. I. Case Credit Corporation did proceed to enforce its security agreement by sale of the tractor at public sale on June 11, 1971. The net proceeds from the sale amounted to $5,050 which amount was credited to Mr. Newberry’s account leaving a balance of $1,545.23 he still owed on the purchase price of the tractor.

On June 9, 1971, two days before the sale as above set out, Mr. Newberry filed the present suit against Fireman’s Fund American Insurance Companies, J. I. Case Company, J. I. Case Credit Corporation and Curtis Cruse d/b/a Curtis Cruse Company praying judgment against the insurance company for $1,600 representing loss of equity in the tractor which was destroyed by fire and insured by the defendant insurance company, and for judgment against all the defendants in the amount of $5,000 as damages for delay and failure to adjust the insurance loss. The defendants filed demurrers to the complaint in equity and by amendment Mr. Newberry sought cancellation of his contract of purchase. Trial on the merits resulted in a decree awarding judgment in favor of J. I. Case Credit Corporation against Mr. Newberry for the balance of the purchase price due on the tractor in the amount of $1,545.23, together with interest from June 11, 1971, $150 attorney’s fee and court costs.

We are of the opinion that this case actually turns on factual issues as to contractual rights under the unambiguous provisions of the insurance policy, and actually comes down to a question of the respective rights of the insurance company and Mr. Newberry under the terms and provisions of the insurance contract.

As already stated, the insurance policy insured the interest of:

“J- I- Case Company and/or its Subsidiaries and/or its Dealer(s) and/or their Successor(s) and/or Assignee(s) and/or Customer(s) of J. I. Case Company and/or its Dealer(s) hereinafter referred to as Purchaser(s), in Property as hereinafter defined, as their interests may appear.” (Emphasis added).

The insurance company simply paid for the repairs to the tractor and Mr. Newberry refused to accept the repairs to the tractor but insisted that he was entitled to the full value of the tractor less its salvage Value which would amount to at least the balance he owed on the tractor. “Total loss” is defined in the insurance contract as follows:

“The phrase ‘TOTAL LOSS’ as used in this endorsement shall apply only when the estimated cost of repair exceeds the current retail selling price of the lost or damaged machine or implement, or the original selling price of such machine, whichever is less.”

The evidence was to the effect that the tires and wires were burned off the tractor and the paint was scorched. The estimated cost of repairs did not exceed the selling price, so it is obvious that under the policy definition the tractor was not a total loss as contended by Mr. New-berry.

As to partial loss the insurance contract provided:

“(2) In the event of partial loss of or damage to such a machine or implement:
(a) If occurring within one year from the date of Purchaser signs a NOTE OR LEASE in connection therewith,
then this Company shall be liable for the cost of repairing or, if necessary, replacement of the damaged or destroyed part(s) of the machine or implement.”

Under his first point Mr. Newberry argues that the appellee insurance company was obligated first to him, Newberry, second to appellee J. I. Case Credit Corporation and third to appellee Curtis Cruse, the repairman. We do not agree with the appellant on such priority of interest. The “Memorandum of Property Insurance” furnished to Mr. Newberry plainly states the coverage to be as follows:

“The Purchaser, the Dealer and the Company are covered as their respective interests may appear. . .” (Emphasis added).

At the time of the loss Mr. Newberry had a $2,000 interest in the equipment and, of course, he had used it almost a year. The appellee J. I. Case Credit Corporation had a prior security interest in the amount of $5,665; consequently, the insurance company was obligated first to pay the cost of repairs to J. I. Case Credit Corporation.

The appellant argues that the tractor was never delivered back to him after the alleged repairs were made, and that he was given no opportunity to inspect or appraise the tractor after it was repaired. This argument is not supported by the evidence of record. On cross-examination Mr. Newberry testified that he did nothing to protect the tractor during a period of 40 days between the time of the fire and when it was picked up. He testified that he did not feel that it was his place to move the tractor or do anything with it. Mr. Newberry then testified as follows:

“Q. When you finally had this meeting February 8th with Mr. Cruse and Mr. Felts and Mr. Britt, what do you say they wanted you to do, look at the tractor or what happened then, did they offer to show you the tractor?
A. Mr. Cruse and Mr. Britt wanted to know if I wanted to see it.
Q. What did you do?
A. I told them I didn’t care anything about looking at it, if they said it was as good as a new one, I said, I have seen it new.
Q. You didn’t go look at it and didn’t try it out, you just said you didn’t want it?
A. That’s right.”

The appellant then calls our attention to item 16 of exhibit “C” (policy) where the policy provides:

“All adjusted claims shall be paid or made good to the Assured within sixty (60) days after presentation and acceptance of satisfactory proof of interest and loss at the office of this Company. . .”

A part of Mr. Newberry’s alleged damages was for delay of more than 60 days in settlement of the claim. While we agree with the chancellor that there was no proof of damage to Mr. Newberry occasioned by this delay, the claim in this case had not become an adjusted claim during the period complained of by the appellant. Although the present suit was commenced two days prior to the foreclosure sale, no effort was made by Mr. Newberry to enjoin the sale until his rights under the insurance contract could be determined. Mr. New-berry simply refused to accept anything less than a total loss in adjustment of the insurance claim in this case. The interest of J. I. Case Credit Corporation was far more in dollars and cents than the interest of Mr. Newberry, and the damage to the tractor and the total amount recoverable under the insurance policy could not have been more than $1,991.10, which amount was almost equal to Mr. Newberry’s monetary interest but far less than the credit corporation’s monetary interest. The insurance company agreed to pay the claim within 60 days after adjustment. It did not agree to accept the purchaser’s claim as proof of the loss nor did it agree to negotiate '“an adjustment of the loss” within 60 days, as argued by the appellant. The insurance company had nothing whatever to do with permitting the tractor in this case to be sold after the appellant instituted his lawsuit.

Under his second point the appellant argues that he does not contend the credit corporation had no right to foreclose its security interest but does contend that when the credit corporation did foreclose its security interest, it rescinded its contract with Newberry, thereby making it impossible for him to carry out his part of the contract and making it impossible for him to make an acceptable adjustment with the insurance company. We are simply unable to follow the appellant’s reasoning in this argument. Mr. Newberry contended that the tractor was a total loss. The chancellor found that it was not, and his finding is not against the preponderance of the evidence. The insurance company was only liable for the cost of repairs and it paid its obligation according to the interest of its insureds.

The decree is affirmed.


author: Conley Byrd, Justice.

text:
    Walter J. FRANK Jr. v. Bobby STEEL, Judge
    5-6047
    485 S.W. 2d 737
    Opinion delivered October 23, 1972

      Fulk, Lovett & Mayes, by: Paul W. Hoover, Jr., for petitioner.

      Smith, Stroud, McClerkin ir Conway, by: William H. Howell, for respondent.
   Conley Byrd, Justice.

The sole issue on this appeal is whether petitioner Walter J. Frank, Jr., is subject to the personal jurisdiction of the Sevier County Circuit Court under the provisions of the Uniform Interstate and International Procedure Act, Ark. Stat. Ann. § 27-2501 et seq. (Supp. 1971). The matter is here on a petition for prohibition to Circuit Judge Bobby Steel who overruled petitioner’s objection to the jurisdiction.

The issue arises out of an action by C. Henry Platt filed against International Distributing Company, a Louisiana Corporation, Charles Ryan and petitioner. The allegations are that defendants through their agents knowingly misrepresented their products to Platt and that as a result thereof, he has incurred actual damages in the amount of $6,033.45, and that in addition to the recovery thereof, he is entitled to punitive damages in the amount of $3,900.00.

At the hearing on the motion to quash, it developed that Platt as a result of negotiations with Mr. Glenn Frandsen, an agent of International Distributing Company on December 16, 1969, signed at his home in Arkansas a proposal to purchase some goods to be shipped from International. This contract assigning an exclusive sales area to Platt was accepted by International at its home office in Monroe, Louisiana on December 19, 1969, over the signature of its president, the petitioner Walter J. Frank, Jr. Mr. Platt admitted that he had never talked to petitioner in person in the State of Arkansas and that he had never seen petitioner in the State of Arkansas. The parties stipulated that International Distributing Company is a corporation validly existing under the laws of the State of Louisiana, but not authorized to do business in Arkansas.

To sustain the asserted personal jurisdiction over petitioner, respondent relies upon Wichman v. Hughes, 248 Ark. 121, 450 S.W. 2d 294 (1970), and Nix v. Dunavant, 249 Ark. 641, 460 S.W. 2d 762 (1970). In those cases we had involved the question of personal jurisdiction over a party to a contract negotiated in Arkansas through an agent. In upholding personal jurisdiction in those cases and also in Pennsalt Chem. v. Crown Cork and Seal, 244 Ark. 638, 426 S.W. 2d 417 (1967), we pointed out that before a state can exercise such “long-arm” jurisdiction, it is essential that there be a showing that the defendant purposely availed himself of the privilege of conducting activities within the forum state. While under the facts, it would appear that International purposely availed itself of the privilege of conducting activities in this State sufficient to warrant the acquisition of jurisdiction over it, we do not find any facts that would warrant the acquisition of personal jurisdiction over petitioner who only acted in his representative capacity as president of International in accepting the contract. Respondent has cited no authority upholding extra-territorial jurisdiction over a corporate officer under these circumstances. Neither has our research revealed any such authority.

Respondent also suggests that petitioner is subject to service of process by virtue of Ark. Stat. Ann. § 64-1216 (Supp. 1971), which makes an officer of an unqualified foreign corporation personally liable on such corporate contracts unlawfully entered into in this State. Here again the facts do not support respondent because they show that whatever petitioner did, he did in the State of Louisiana. Thus the statute is not applicable to him.

Writ granted.


author: Frank Holt, Justice.

text:
    DURA CRAFT BOATS, Inc. v. George A. DAUGHERTY
    5-6039
    485 S.W. 2d 739
    Opinion delivered October 23, 1972

      Riddick Riffel, for appellant.

      Clifton Bond, for appellee.
   Frank Holt, Justice.

The appellee suffered an injury to his right hand when he was working as a riveter for the appellant. The Workmen’s Compensation Commission, in affirming a referee’s opinion, found that the appellee had sustained a 10% permanent partial disability to the right hand and awarded benefits for that degree of disability. The circuit Court, on appellate review, reversed the action of the Commission and in doing so found that appellee was entitled to compensation for a permant partial disability of 10% to the body as a whole rather than 10% to the right hand. A judgment was accordingly rendered.

We agree with the appellant that the extent of the claimant’s injury or disability is primarily a question of fact for the Commission to determine. It is beyond the power of an appellate court to make a finding of fact as to the extent of a claimant’s injuries. This is solely within the province of the Workmen’s Compensation Commission as fact finders and the only power of an appellate court is to remand the case for further proceedings. Dura Craft Boats, Inc. v. Daugherty, 247 Ark. 125, 444 S.W. 2d 562 (1969), Long-Bell Lumber Co. v. Mitchell, 206 Ark. 854, 177 S.W. 2d 920 (1944). Therefore, the remaining' issue before us as an appellate court is to determine if there is any substantial evidence to support the Commission’s findings. This is the extent of our inquiry on appeal and if substantial evidence exists, we must affirm the Commission. St. Michael Hospital v. Wright, 250 Ark. 539, 465 S. W. 2d 904 (1971).

Appellee’s medical witness testified that he was of the opinion that appellee’s disability was 5% to 10% to the body as a whole; however, on cross-examination, as abstracted, he testified: “I felt that he had some permanent weakness in his right hand which was limited to his right hand; some sensory change specifically hypalgesia, which means diminished depreciation of pain; and hypesthesia, which means decreased depreciation of touch in the distribution of the radial nerve on the right hand. **** This was all confined to the right hand.” Appellant’s medical witness, as abstracted, stated that “I did not find any physical reason that would prevent this man from carrying on his normal work activities. **** From my examination I found nothing that was of objective character of any physical or neurological impairment of the man’s right hand or right upper extremity beyond the man’s own willful control. There was nothing in my examination to indicate that this man could not perform work duties that he was otherwise capable of performing.” Also, the claimant told him that “he was getting along quite well on this new job.” Evidence was adduced that sometime following claimant’s injury he was employed in pest control work at approximately a 50% higher salary and doing work which required him to crawl under houses, use a sprayer, and perform- carpentry. It appears that appellee was deceased at the time of the hearing on his claim.

When we review the evidence in the light most favorable to the finding of the Commission, as we must do on appellate review, we must agree with appellant there is substantial evidence to support the Commission in its finding of fact. On appeal, the issue is not whether the testimony would have supported a contrary finding but whether it supports the finding the Commission made. It follows that the judgment of the Circuit Court is reversed and the cause is remanded to the Circuit Court with directions to reinstate the award of the Commission.

Reversed and remanded.


text:
    Jerry Dean THOMPSON v. Margie Coleen THOMPSON
    5-6052
    485 S.W. 2d 725
    Opinion delivered October 23, 1972

      Darrell Hickman, for appellant.

      Branscum, Schmidt ir Mazzanti, for appellee.
   J. Fred Jones, Justice.

This is an appeal by Jerry Dean Thompson from a final order of the Lonoke County Chancery Court denying his petition for rehearing on a motion to set aside a previous decree awarding child support and entry of judgment against him for $1,800 in back child support.

For convenience we shall refer to the parties as “Jerry” and “Margie.” The facts as we gather them from the record appear as follows: Jerry and Margie were married in New Mexico in 1953 and were living in Lubbock County, Texas, when they separated in 1955. Jerry returned to Arkansas following the separation and Margie remained in Lubbock County, Texas, where she filed suit for divorce and for the custody of their minor child. On August 10, 1955, a divorce decree was granted to Margie in Lubbock County, Texas, and a copy of it was sent to, or obtained by, Jerry. Soon after the decree was entered in Texas Jerry and Margie resumed their marital relations without the benefit of additional matrimony, and they continued to live together as husband and wife in several states, during which time two other children were born to them. They were living in a two-bedroom trailer in Lonoke County, Arkansas, when the present action was commenced.

Jerry commenced the present action by a complaint filed on August 8, 1969, in which he alleged the marriage and divorce as above set out, and in which he alleged that Margie had forced herself upon him following the divorce in Texas and had continued to hold herself out as his wife. He prayed for a court order requiring Margie to vacate the house trailer occupied by them in Lonoke County and restraining Margie from threatening, abusing or coming in physical contact with him, and from using his credit cards. Margie filed an answer admitting the marriage but denying that she ever obtained a divorce in 1955. She alleged that three children were born as a result of her marriage to Jerry and she prayed for a dismissal of his complaint. After amendments to the pleadings were filed by both parties, the matter was heard by the chancellor on December 4, 1970,

The chancellor found that Jerry and Margie were married on December 22, 1953, and divorced in Lubbock County, Texas, on August 10, 1955, and that they had not remarried. The chancellor further found that Jerry and Margie were the parents of Monica Lynn Thompson age 16; Rodney Thompson age 14; and Bradley Thompson age 12. The chancellor entered an order restraining each of the parties from annoying, molesting or interfering with the other, and the custody of the children was awarded to Margie. Jerry was ordered to pay the sum of $50 per child per month for the support of the children and he was awarded the right of reasonable visitation. Neither party appealed from this order.

On August 24, 1971, Margie filed a petition in the Lonoke County Chancery Court for a show cause order against Jerry for failure to pay the child support previously ordered, and the chancellor entered an order directing Jerry to appear on Friday, September 3, 1971, at 9:30 a.m. and show cause why he should not be cited for contempt of previous orders. On September 20, 1971, Jerry filed a petition stating that he did not receive a copy of the December 4 court order; that he had directed his attorney to perfect an appeal from that order, or have it set aside or obtain a rehearing in the matter. He alleged that he was in the Lonoke County Chancery Court on September 3, as directed in the show cause order, and the respondent was not present in court. He prayed that a rehearing be held regarding support and custody of his minor children; that the original court order pertaining to child support and custody be set aside and that he be awarded custody of the children. Margie countered with a petition filed on November 4, 1971, alleging arrearage in child support and she again prayed for a contempt citation. The matter was set for hearing on Friday, December 3, 1971, and the hearing on that date resulted in the order from which comes this appeal. The chancellor’s order recites as follows:

“[T]he Plaintiff’s Petition for a rehearing of the Order entered December 4, 1970 is hereby denied.
The court doth further find that the Plaintiff, Jerry Dean Thompson, is in arrears on his child support payments in the amount of $1,800.00 and that this* amount is hereby reduced to Judgment for which garnishment or execution may issue at law.
The Court doth further find that the Plaintiff, Jerry-Dean Thompson, shall pay Defendant’s attorney fees in the amount of $100.00 and costs and that this amount shall be reduced to Judgment for which garnishment or execution may issue at law.”

On appeal to this court Jerry has designated the points on which he relies for reversal as follows:

“The lower court erred in finding that the parties were divorced.
The court abused its discretion on December 3, 1971, in finding the appellant in arrears in the sum of $1,800.00 and refusing to grant a rehearing upon the entire matter.”

The first point is without merit. A certified copy of the Texas divorce decree as well as the petition therefor, and various orders in connection therewith, were filed as exhibits to the pleadings in this case, and there is no question that a divorce was granted by the Texas court.

A certified copy of an executed marriage license between Kenneth Don Shinn and Mrs. Margie Coleen Thompson was filed as an exhibit to the pleadings. This exhibit indicated that Margie and Kenneth Don Shinn were married in New Deal, Texas, on March 19, 1970. Margie admitted this marriage. She testified that she did not know that the Texas divorce was ever granted or had become final until the Texas divorce was alleged in the pleadings filed by Jerry in Arkansas. She said that after the divorce decree was called to her attention in said pleadings, she checked the records in Lubbock County, Texas, where she had filed her divorce complaint and she found that the divorce had in fact been granted. Margie explained that the attorney who represented her in the Texas divorce proceeding advised her that the decree would not be entered and become final until she had paid his attorney fee, and that she never did pay all of his fee. She said that after she was convinced that the divorce had been granted she married Mr. Shinn. She testified that all three of her children were born as a result of her marriage to Jerry Thompson and while she was living with him as his wife.

During the course of this litigation in the Lonoke County Chancery Court, Jerry also became married to the “housekeeper” of his two-bedroom trailer. Neither party is in a favorable position to question the validity of the Texas divorce for they both have remarried on the strength of it. See 27B C.J.S., § 365, p. 855.

We find no abuse of discretion in entering the order of December 3, 1971, and in refusing to grant a rehearing in connection therewith. Jerry admitted that he was the father of all three children and seemed to have had no doubt as to their paternity until he was cited into court for not supporting them. We have not overlooked Jerry’s argument of a common-law marriage between himself and Margie following the divorce in Texas. This contention is inconsistent with his allegations that Margie forced herself upon him following the divorce in Texas and is slightly inconsistent with both their subsequent marriages, and Margie’s contention that she did not even know the divorce had been granted during the time they subsequently lived together. Mutual intent is an integral part of any marriage contract including one at common law. See 55 C.J.S. § 19, p. 842.

The order of the chancellor is hereby affirmed.


author: PER CURIAM

text:
    Valenda BLEIDT v. 555, Inc.
    5-6123
    485 S.W. 2d 721
    Opinion delivered October 23, 1972

      Boyett ir Morgan, by: Denny P. Petty, for appellant.

      Troy Wiley and Glenn Walther, for appellee.

      Charles Brown, for Architectural Products, Inc., and Binswanger Glass Company.
   PER CURIAM

Motion of Architectural Products Company and Binswanger Glass Company for partial remand (in which Nabholz Construction Corporation and St. Paul Fire & Marine Insurance Company joined) is denied because movants are not parties to this appeal and because jurisdiction of the issues on the interpleader filed by Nabholz Construction Corporation is not vested in this court by the present appeal. The trial court retains jurisdiction to proceed with the disposition of those issues as if this appeal had never been taken.

John A. Fogleman, Justice. Architectural Products, Inc., and Binswanger Glass Company filed a motion asking this court to remand this case to the Chancery Court of Pulaski County to the extent necessary to invest that court with jurisdiction to try issues among J. E. Lightle, Jr., as receiver of HLB Enterprises, the movants, Nabholz Construction Corporation and St. Paul Fire & Marine Insurance Company. Nabholz and St. Paul joined in the motion. Appellee 555, Inc., admits that the relief sought by Architectural Products, Inc., and Binswanger could not in any way affect the rights of the parties to the appeal or the funds held by the receiver to which they are entitled regardless of the outcome of this appeal. None of the movants was a party to the proceedings at the time appellant Valenda Bleidt took this appeal. We have denied the motion by per curiam order, which would ordinarily constitute the only action here. Because of the question posed here, however, we deem it advisable to issue an opinion for the convenience of the bench and bar.

In order that the question presented by the motion be understood, we outline the background as disclosed by the motion and responses. In April 1971, Searcy Glass Company, a subsidiary of HLB Enterprises, Inc., contracted to furnish certain labor and materials to Nabholz Construction Corporation, the prime contractor in the construction of a hospital. Binswanger furnished glass and Architectural Products, Inc., furnished aluminum windows to Searcy Glass Company.

On November 19, 1971, HLB brought an action for damages for trade slander and breach of a covenant not to compete against 555, Inc., and Glen Capps in the Circuit Court of Pulaski County. 555 answered and obtained permission to make appellant Bleidt, First Security Bank and Associates Capital Company third party defendants, alleging that all of them claimed security interests against HLB and foreclosure of these security interests and determination of the rights of these third parties would be necessary. 555 then filed a counterclaim and a cross-complaint against Valenda Bleidt, First Security Bank, Associates Capital Company and Mon-ark Boat Company, claiming that its lien was superior to theirs. 555 also asked that a receiver be appointed to take charge of the assets of HLB. On motion of 555, the cause was transferred to equity on January 3, 1972.

On April 5, 1972, the chancery court entered the decree from which this appeal was taken. The plaintiff had taken a nonsuit, so the cause was heard upon the counterclaim and cross-complaint of 555, and the complaints of Valenda Bleidt and First Security Bank for foreclosure. The decree included judgments in favor of the Bank and appellant Bleidt who were held to have security interests in assets of HLB. The court declared that the lien of First Security Bank was paramount to those of the others then parties to the proceeding and that the security interest of Valenda Bleidt was inferior to that of First Security Bank, but paramount to those of all other parties. The court appointed J. E. Lightle, Jr., receiver to take charge; of the assets of HLB and hold them subject to further orders of the court. Appellant Bleidt gave notice of appeal from this decree on April 27, 1972.

On August 11, 1972, Nabholz intervened and inter-pleaded $5,574, alleging that this was the total balance due HLB upon the contract and joined Architectural Products and Binswanger as parties to the action. On August 22, 1972, this appeal was docketed here. On August 30, 1972, Architectural Products and Binswanger cross-complained against Nabholz and the surety on its payment and performance bond, St. Paul Fire & Marine Insurance Company. The matter was set for trial on October 25, 1972, but movants alleged, and it is not denied, that the chancery court will decline to proceed with the trial of the issues raised as a result of the interpleader on the ground that the appeal has deprived that court of jurisdiction.

The rule that an appeal divests the trial court of jurisdiction applies only to matters necessarily or directly involved in the matter under review. It does not stay further proceedings with respect to rights not passed on or affected by the judgment or decree from which the appeal is taken. Matters which are independent of, or collateral or supplemental, are left within the jurisdiction and control of the trial court, notwithstanding the appeal. Coleman v. Fisher, 66 Ark. 43, 48 S.W. 807; Arkansas National Bank v. McIlroy Banking Company, 128 Ark. 81, 193 S.W. 278; 4A C.J.S. 399, 413, Appeal and Error, §§ 608, 618; 4 Am. Jur. 2d 834, Appeal and Error § 355.

The cases cited above were decided before the adoption of Act 555 of 1953, but there is nothing in that act which changes the rule there delineated and applied.

The motion is denied because the movants are not parties to this appeal and because the chancery court has not, by this appeal, been deprived of jurisdiction of the issues they seek to have determined in that court.


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    J. C. "Jimmy" KNABE et al v. Carroll BALL et al
    5-6087
    485 S.W. 2d 745
    Opinion delivered October 23, 1972

      Art Givens, for appellants.

      E. H. Herrod, for appellees.
   PER CURIAM

The decree is affirmed for failure of appellants to comply with Rule 9 of the rules of this court. Even though appellees, after pointing out appellants’ noncompliance, supplied many of the deficiencies by supplementing the abstract of oral testimony and setting out the chancellor’s findings of fact, we are still unable to understand the testimony without any abstract of any of the pleadings, the court’s decree, or, most important of all, a plat and five or six photographic exhibits without which the testimony is not understandable. See Baker v. Trotter, 252 Ark. 247, 486 S.W. 2d 7; Reliable Finance Co. v. Rhodes, 252 Ark. 1077, 483 S.W. 2d 187.


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    Lindy GRAMLING v. Henry BALTZ, d/b/a LAWRENCE COUNTY EQUIPMENT COMPANY & INTERNATIONAL HARVESTER COMPANY, A Foreign Corporation
    5-5905
    485 S.W. 2d 183
    Opinion delivered June 26, 1972
    [Supplemental Opinion on Denial of Rehearing delivered October 23, 1972.]

      Kirsch, Cathey, Brown & Goodwin, and John Watkins, for appellant.

      John C. Calhoun and Owens, McHaney & McHaney, for appellees.
   Frank Holt, Justice.

This is a suit by appellant, a buyer, to recover damages from appellee-Baltz, the seller, and appellee-international Harvester Co., the manufacturer of a truck. The appellant alleged a breach of express warranty and, also, a breach of an implied warranty of merchantability and fitness of the truck for a particular purpose. At the conclusion of appellant’s case, the court found that appellant had failed to proffer substantial evidence to support his allegations and directed a verdict against him. For reversal, appellant first contends that the court erred in directing a verdict for the appellees.

According to appellant, he had been in the trucking business since 1965 and in July, 1966, he purchased a truck from appellees to use in his commercial hauling business. In January of 1969 he needed a new truck and talked with Baltz three times in a ten day period about trading trucks. Thereafter, appellant purchased from Baltz a 2010A, single-wheel axle truck with a 478 engine manufactured by International. This truck’s engine was larger and the axle’s transmission heavier than those in the truck previously purchased from Baltz. The list price of the new truck was $11,500. Baltz deducted $1,000 from the list price and then accepted appellant’s old truck as a trade-in which resulted in a balance of $8,900 on the purchase price. The appellant expected more speed from the larger and heavier transmission. Baltz informed him this truck would move faster than his other truck. Appellant went to the appellee’s place of business on January 20, 1969, and took possession of the truck. It appears that about two or three weeks later, the necessary papers in the transaction were signed by the parties, at which time Baltz gave appellant the title and a Five Star Warranty.

During appellant’s first trip with the truck, he noticed that it was geared too fast and wouldn’t “pull” properly. Two days later, he took the truck to the equipment company and complained to Baltz. A few days later, Baltz told appellant to take the truck to the International garage in Memphis. Upon arrival at this garage, he learned that the gear needed replacing; however, the necessary parts were unavailable and he had to leave the truck for three weeks for the necessary repairs. Approximately two months from that date, appellant again experienced difficulty with the truck. Appellant stopped in Louisiana at an International garage and explained that the clutch was slipping. That garage agreed to repair the truck at appellant’s expense. He refused and went to Michigan where he unloaded and then took the truck to an International garage there. They checked the oil leaks in the fuel system and adjusted the clutch and offered to further repair the truck if appellant would stay overnight. He refused and returned home with an empty truck, because the truck lacked the power to pull a load. Upon his return, he took the truck to Baltz and explained that the truck “wouldn’t pull.” He left the truck with Baltz for repairs from April 26, 1969, until June 7, 1969. The excuse for this long delay was that parts were unavailable.

Upon receipt of the repaired truck, appellant again used it for hauling purposes, and it did not function properly. On the following Monday, the truck was returned to Baltz. After a thirty-day delay because of unavailable parts, the truck was returned to appellant and again it did not “pull” properly. It “ran good” at night, but during the daytime “it just wouldn’t pull.” It would lose fifteen or twenty miles an hour in speed during “hot weather.” He testified that the top speed is sixty-two miles an hour in high gear. During the daytime he never used top gear. He would stay about forty to fifty miles an hour. The truck was supposed to run at top speed even when loaded. The truck was returned to Baltz during July, August, and September. The garage personnel tuned the engine and worked with the carburetor.

In September appellant, as directed, took the truck to the International Garage in Memphis. He picked it up a week later and was told the carburetor had been put together wrong and that it was now corrected. The truck ran “pretty good” during short hauls until the following April, 1970, when the weather began to get hot. The truck “started right back doing the same thing it was doing all the time,” overheating with a sudden loss of power. In the meantime, appellant had hired an experienced driver who testified that he had the same difficulty with the truck’s lack of power. He left his job because the truck was “independable,” and he needed steady employment. The garage in Memphis referred appellant to a garage in Jonesboro. Appellant took the truck there for repairs. Afterwards, the truck “was worse than it had ever been.” Appellant complained to the Memphis garage and again took the truck there in August, 1970. The following day he returned the truck as directed to the Jonesboro garage. Soon after he arrived, the truck caught on fire and was damaged. The truck was repaired and no damages as a result of the fire are sought in this law suit.

After repairs, the truck started “missing” again the first time it was used. After stopping briefly at the Jonesboro garage, he then continued the trip, or haul, during which the truck “went to missing just like it done all through the hot summer months.” Upon his return he called the garage in Jonesboro and the foreman told him, “[D]on’t bring it back to me, I have done all I can. I can’t fix it.” Appellant was instructed by the International garage in- Memphis to return the truck there where repairs were again made. Appellant drove from there to Alabama before the truck quit “pulling.” Upon his return to Memphis, he again stopped at the International garage and was told that the points and plugs were wrong. This was repaired with the assurance the truck would perform properly. Appellant had trouble, however, before he reached Jonesboro. After an attempted haul to Chicago, he returned the truck to the garage in Memphis, as directed by the garage foreman. En route the truck completely stopped. After about 30 minutes, the truck was started again and appellant reached Memphis after- stopping to let the truck “cool off.” In Memphis the truck was test driven the next day, and appellant was informed that it functioned properly.

Appellant left for Jonesboro and had “trouble” before he reached that destination. He went to the Jonesboro garage and took the shop foreman for a drive. The truck would not pull except in low gear. The foreman then contacted the Memphis garage, and appellant was advised to take the truck back to Memphis. Appellant did not go to Memphis that day. A representative from that International garage came to Paragould and rode with appellant on a 150 mile trip. The truck drove “pretty good that day.” This representative did some work on the truck and appellant’s driver left with a load for Chicago. The truck did not operate properly, and he was unable to complete the trip. Appellant was again told by the Memphis shop foreman to return the truck. On the way to Memphis it became necessary to have the truck pulled into the garage there. The truck was barely out of the two-year warranty since this was now March, 1971. The estimate for repairs was $1,200 to $1,400. Appellant agreed to pay for the repairs. A couple of days later, however, appellant was notified that the “block was busted” and repairs would cost $2,700. Thereupon, appellant refused to pay the repair costs.

The foreman of International’s Jonesboro garage, an independent corporation, testified concerning repairs made to appellant’s truck. He testified that appellant had complained about the “lack of power.” and he “couldn’t get any R.P.M. out of it.” Further, appellant usually drove 200 to 250 miles before the problem commenced. He further testified that he had accompanied the appellant in his truck on one occasion when the truck suffered a loss of power and appellant had to run the truck for 2 or 2 1/2 miles in low gear. Upon their return, he told appellant that he would rather not work on the truck. He felt that the Memphis International garage was better equipped to handle the “loss of power” problem.

A former mechanic for the International garage in Jonesboro testified to having worked on the truck. He stated that he never got the truck to “run” to suit him. However, he lacked the equipment necessary to determine if the truck was running full power. From his long experience with this type engine, he assumed that the problem was caused by heat from the oil lifter breaking down on the machine. This situation would cause the block to form a “sand hole” and the lifter would not lift properly. A tune-up would not remedy the problem. He did not make any attempt to repair this since he was not directed to do so. In his opinion it would have required a new block to make the truck perform “properly” and as “rated.”

Appellees’ evidence was to the effect that any defect in the truck resulted from the appellant’s improper maintenance and operation, thus, constutiting a waiver of any warranty; further that appellant had operated the truck in excess of 115,000 miles during more than the two-year warranty without rejection or revocation of acceptance. Therefore, appellees assert that the appellant is estopped to claim either direct or consequential damages as a result of breach of warranty.

On appeal from a directed verdict, we must view the evidence in the light most favorable to the appellant, regardless of credibility in determining if a fact question exists for a jury’s consideration. Haralson v. Atlas Transit Co., Inc., 250 Ark. 242, 465 S.W. 2d 108 (1971), and Ives v. Anderson Engine & Foundry Co., 173 Ark. 112, 292 S.W. 111, (1927). The Uniform Commercial Code § 85-2-601 provides that a buyer may accept or reject nonconforming goods. After delivery rejection must be made within a reasonable time, § 85-2-602. However, § 85-2-608 enables a buyer to revoke his acceptance when such acceptance was based upon a seller’s assurances that any nonconformity would be seasonably cured. However, Comment 4 states “the reasonable time period should extend in most cases beyond the time in which notification of breach must be given,***.” Comment 3 states:

“ ‘Assurances’ by the seller under paragraph (b) of subsection (1) can rest as well in the circumstances or in the contract as in explicit language used at the time of delivery. The reason for recognizing such assurances is that they induce the buyer to delay discovery.”

We cannot say as a matter of law, in the case at bar, that appellees’ actions and repeated attempts to make repairs did not induce appellant to retain the truck or prevent him from seeking independent advice from a mechanic of his own choice to determine the cause of the truck’s mechanical failure. A waiver does not necessarily result when a buyer continues to use an article following repairs by the seller. Loe v. McHargue, 239 Ark. 793, 394 S.W. 2d 475 (1965). The record is replete with appellant’s testimony, corroborated by disinterested witnesses, which tends to establish a factual issue that the truck was nonconforming from a latent defect and the appellant seasonably relied on appellees’ actions or assurances to the effect that the truck was repairable. One witness, a mechanic with 20 years experience, expressed the opinion that a new block was necessary to correct the malfunctioning truck. In the circumstances, we hold that there is sufficient evidence, when viewed most favorably to appellant, to constitute factual issues for the jury. Harris v. Hunt, 216 Ark. 300, 225 S.W. 2d 15 (1949).

The facts in the case at bar are distinguishable from those in Ingle v. Marked Tree Equipment Co., 244 Ark. 1166, 428 S.W. 2d 286 (1968) relied upon by appellees. There the seller made no assertion either by word or action which could reasonably be construed as a promise by the seller to alter the wheels on the combine machine to meet appellant’s complaints. In fact, the buyer kept and used the combine after being told it could not be corrected as requested by the buyer. In the case at bar, repeated efforts were made by appellees to repair appellant’s truck over a two-year period in attempting to make the truck a conforming delivery or sale.

The appellant, also, asserts for reversal that the court erred in refusing to admit his testimony concerning consequential damages. The trial court was of the view that the asserted consequential damages, in the nature of the loss of commercial profits, are not recoverable because of the express contractual limitation in the exclusionary clause. A limitation of remedies to prohibit commercial losses is permissible by U.C.C., Ark. Stat. Ann. § 85-2-719 (3) (1961). See, also, Ford Motor Co. v. Tritt, Admx., 244 Ark. 883, 430 S.W. 2d 778 (1968). In the case at bar, it is appellant’s position, however, that the exclusionary language is not sufficiently conspicuous to preclude consequential damages, citing International Harvester Co. v. Pike, 249 Ark. 1026, 466 S.W. 2d 901 (1971); Marion Power Shovel Co. v. Huntsman, 246 Ark, 152, 437 S.W. 2d 784 (1969); Mack Trucks v. Jet Asphalt, et al, 246 Ark. 101, 437 S.W. 2d 459 (1969).

In the case at bar, the appellant proffered proof of loss of commercial profits or consequential damages based upon the express terms of the written warranty and, also, the implied warranties of merchantability and fitness for a particular purpose. The exhibit reflects that the exclusionary language in the written warranty substantially duplicates the wording and exactly duplicates the size print that was reproduced in International Harvester Co. v. Pike, supra. In that case we said that the provision was'inconspicuous as a matter of law and determined that the issue of implied warranty of merchantability was properly submitted to the jury where the disclaimer provision could not be classified as being conspicuous. In Marion Power Shovel Co. v. Huntsman, supra, we held that the limitation provision of the written warranty was inconspicuous and said:

“They [consequential damages] may be allowable if the contractor, at the time of the sale, had reason to know of a general or particular requirement of the buyer, and if the failure of the merchandise to produce those requirements could not reasonably be prevented by cover or otherwise.”

See, also, § 85-1-201 (10) (Add. 1961).

In the case at bar the inconspicuous written limitation is unenforceable as a matter of law. This being true it follows that this exclusionary provision cannot be invoked to prevent appellant from asserting and adducing competent evidence as to his consequential damages. The appellant proffered proof that he purchased this truck for a particular purpose; that he attempted to minimize his damages by asking appellee for a substitute truck; that he always had commercial loads available and had a lease contract during the time the truck was “down” or disabled due to the alleged malfunctioning or non-conformity. The appellant offered proof to establish loss of profits by using his business records as a guide. He computed the loss by multiplying the number of days that the truck was malfunctioning or “down” by the daily net income average based upon the dates when the truck was in operation. We think this is competent evidence. Even if this type of evidence would not ordinarily be admissible because of speculation and conjecture, we are of the view that under the provisions of our U.G.C. it should be considered by the jury. The admissibility of evidence in this situation should be liberally construed. See Ark. Stat. Ann. 85-2-715 (Add. 1961), committee comment 4. Of course, the burden is upon appellant to show the existence and breach of any implied warranty and that the breach of its terms was the proximate cause of the asserted consequential damages. § 85-2-314, committee comment 13.

Since a factual issue as to direct and consequential damages existed, the judgment is accordingly reversed and the cause remanded.

Reversed and remanded.


text:
    Lindy GRAMLING v. Henry BALTZ, d/b/a LAWRENCE COUNTY EQUIPMENT Co. and INTERNATIONAL HARVESTER Company, A Foreign Corporation
    5-5905
    485 S.W. 2d 183
    Supplemental Opinion on Denial of rehearing delivered October 23, 1972
    Original Opinion delivered June 26, 1972

      Ray Goodwin, for appellant.

      Henry Ponder and John C. Calhoun, for appellees.
   Frank Holt, Justice.

On rehearing International Harvester Company contends that it made no warranty of fitness and that the court erred in holding International’s exclusionary language was not sufficiently conspicuous to preclude consequential damages.

On the record as abstracted the evidence is insufficient to show an implied warranty of fitness. However, there is ample evidence to support appellant’s claim to the implied warranty of merchantability. Ark. Stat. Ann. § 85-2-3-14 (Add. 1961). Of course, on a new trial the evidence will not necessarily be the same, but proof of either warranty was sufficient to warrant the submission of the damage issues to the jury.

With reference to the second point argued on rehearing, International contends as follows:

“The other oversight was in the assumption that because the International Harvester Company’s disclaimer is “inconspicuous” as a matter of law, it is also unenforceable. We conceded the former, but there is absolutely no requirement in the Uniform Commercial Code that a limitation of remedy to repair of defects and excluding damages must be ‘conspicuous.’ ”

In one respect International is correct. By Ark. Stat. Ann. § 85-2-719 (3) (Add. 1961) the only restriction on the limitation or exclusion of consequential damages is that such limitation or exclusion cannot be “unconscionable.” However, it does not follow that consequential damages were here limited or excluded. International’s “New Motor Vehicle Warranty” and “Five Star Warranty on Major Components” after warranting “. . . each new International motor vehicle to be free from defects in material and workmanship under normal use and service. . .” then provides: “This warranty is in lieu of all other warranties, express or implied, . . ., and all other obligations or liabilities, including liability for incidental and consequential damages . . .” When we consider that “in lieu of” means “in the place of” or “instead of,” then International’s alleged disclaimer can amount to nothing more than an assertion that the warranty against defects in material and workmanship is in the place of all “liability for incidental and consequential damages.” Such an assertion falls short of a limitation or exclusion. In this respect it differs little from the “Standard Warranty” which we held defective as a disclaimer in Marion Power Shovel Co. v. Huntsman, 246 Ark. 152, 437 S.W. 2d 784 (1969).

It would have been easy for International to have provided in clear and unmistakable language that it would not be liable for consequential damages, as was the case in Southwest Forest Industries, Inc. v. Westinghouse Elec. Corp., 422 F. 2d 1013 (9th Cir. 1970), Cert. den. 400 U.S. 902, 91 S. Ct. 138, 27 L. Ed. 2d 138 (1970). Here the alleged disclaimer does not provide that the limitation of remedy for breach of the express warranty is in lieu of consequential damages for breach of implied warranties.

In this respect, the warranty here does not differ materially from that involved in Ford Motor Co. v. Reid, 250 Ark. 176, 465 S.W. 2d 80 (1971). In that case we called attention to the difference between obligations and remedies, holding that, under Ark. Stat. Ann. § 85-2-719 (1) (b) which provides that resort to a remedy provided is optional, unless the remedy is expressly- agreed to be exclusive, there must be language in the warranty form expressly stating that the repair remedy is exclusive of any other remedy the buyer might have. The exclusionary language in the warranty given Gramling is no more express than that in the Ford Motor Co. warranty.

For the reasons herein stated the petition for rehearing is denied.

Harris, C. J., and George Rose Smith, J., would grant the rehearing.