author: J. Fred Jones, Justice.

text:
    James AYERS v. STATE of Arkansas
    5430
    444 S. W. 2d 695
    Opinion delivered September 22, 1969

      Wootton, Land & Matthews, for appellant.

      Joe Purcell, Attorney General; Don Langston, and Mike Wilson, Asst. Attys. Gen., for appellee.
   J. Fred Jones, Justice.

James Ayers was convicted of negligent homicide on circumstantial evidence in the Hot Springs Municipal Court and was sentenced to one year in the county jail. His conviction was affirmed on appeal to the Garland County Circuit Court and he has appealed to this court, relying on the following points for reversal:

“The court erred in overruling defendant’s motion to dismiss as the state’s violation of criminal procedure had substantive effect.
The court erred in overruling the defendant’s motion to exclude evidence including the blood test and other evidence solicited by the police officer from the defendant while in police custody.
The court erroneously permitted the arresting officer, George Riggs, to testify as to his conclusion as to the point of impact.
The court erroneously overruled the defendant’s motion foi judgment at the conclusion of the state’s case.
When the trial court proceeds from clarification to development of the state’s case, at that point the court becomes an advocate and at that point reversible error has been committed.
Reasonable hypotheses were not excluded and the conviction of the defendant was, therefore, at best, a guess.”

Since we must reverse on appellant’s fourth and sixth points, we shall not discuss the others.

The record reveals the following facts: About midnight on December 19, 1968, a 1963 Thunderbird automobile, being driven by Ayers, collided with a 1954 Pontiac automobile being driven by E. G. Beckwith. Both drivers were taken to a hospital in Hot Springs, but Beckwith was dead upon arrival. Ayers was charged with negligent homicide under Ark. Stat. Ann. § 75-1001 (Repl. 1957) which provides in part as follows:

“(a) When the death of any person ensues within one [1] year as a proximate result of injury received by the driving of any vehicle in reckless or wanton disregard of the safety of others, the person ' so operating such vehicle shall be guilty of negligent homicide. ’ ’

The record is not as clear as it might have been as to the exact location of the scene of the collision in relation to the city limits of Hot Springs, but it occurred in Garland County apparently on a two-lane section of new Highway 70 leading east from Hot Springs toward Lonsdale, Benton and Little Rock. From the exhibited photographs of the scene of the collision, the highway is plainly marked by a double stripe painted in the center of the blacktop pavement dividing the two traffic lanes from each other and by a single stripe along the outside edge of each traffic lane, dividing it from the gravel shoulder of the highway.

There is considerable difference in the rules of evidence pertaining to criminal prosecutions as distinguished from civil actions. In a criminal prosecution, the accused remains innocent until proven guilty and the entire burden of proof rests on the state to prove the accused guilty beyond a reasonable doubt. In civil actions, the greater weight, or preponderance of the evidence, rule applies. Circumstantial evidence, as well as direct evidence, comes within the same rule.

In Nichols, Applied Evidence, vol. 2, §§ 11, 13 and 24, at pages 1066-1069, the differences in the rule as applied to criminal and civil cases are well pointed out, as follows:

(In criminal prosecutions).
“§ 11. ... In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the accused and inconsistent with his innocence, and incapable of explanation on any other reasonable hypotheses than that of guilt. When the circumstances are of such a character as to fairly permit an inference consistent with innocence, they cannot be regarded as sufficient to support a conviction. Where circumstantial evidence is relied on for a conviction, it is not sufficient that it raises a mere suspicion of guilt, but it must establish facts inconsistent with innocence. This rule as to the sufficiency of circumstantial evidence to sustain a conviction is applicable to misdemeanors as well as felonies.
§ 13. ... To warrant a conviction on circumstantial evidence alone, the same degree of certainty is required as where the evidence is direct, namely, the evidence must satisfy the jury beyond a reasonable doubt.
(In civil cases).
§ 24. ... Circumstantial evidence in a civil case need not rise to that degree of certainty which excludes every reasonable conclusion other than the one arrived at by the jury. Circumstantial evidence in a civil case need only produce moral certainty in an unprejudiced mind; and where it furnishes support for plaintiff’s theory, and tends to exclude any other theory, it is sufficient to support a verdict for him. Where plaintiff’s case rests on circumstantial evidence, the circumstances must not only be consistent with his theory, but, when weighed with the opposing evidence, must have more convincing force substantiating the theory contended for, from which theory it results that the greater probability is in favor of the party upon whom the burden rests. When rights of parties depend on conflicting testimony, there is often as much evidentiary weight in lack of circumstances as in positive proof.”

In 20 Am. Jur., § 1217, Circumstantial Evidence, at page 1069 is found the following:

“Where circumstantial evidence is relied upon in a criminal prosecution, proof of a few facts or a multitude of facts all consistent with the supposition of guilt is not sufficient to warrant a verdict of guilty. In order to convict a person upon circumstántial evidence, it is-necessary not only that the circumstances all concur to show that the prisoner committed the crime and be consistent with the hypotheses of guilt, since that is to be compared with all''the facts ' proved, but that they be -inconsistent with'any-other-rational conclusion arid exclude every other reasonable theory or hypothesis except that of guilt. The facts proved must be' consistent with each other and with the main fact sought to be proved. A reasonable doubt must be resolved in favor of the accused where a fact or circumstance is susceptible-of two-interpretations. If the circumstances tending-to show the guilt of the accused are “as consistent with' his. innocence as with his guilt, they are insufficient. In order to convict a.person of a crime, the facts must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence. ’ ’

This-court has oh more than one occasion stated the rule on circumstantial evidence in criminal cases to be, as follows: • -

^ [W] here circumstantial evidence alone is relied . .upon to establish guilt of one charged with a crime, such evidence must exclude every other reasonable •hypothesis but the guilt of the accused." Turner v. State, 192 Ark. 937, 96 S. W. 2d 455; Logi v. State, 153 Ark. 317, 240 S. W. 400; Jones v. State, 246 Ark. 1057, 441 S. W. 2d 458.
“ A. conviction resting upon evidence which fails to come up to' the standard prescribed by law is contrary to law, and it is the duty.of the-court to set aside the verdict.’’ Logi v. State, supra.

>" With this rule in mind, and viewing the evidence in the light most favorable to the state, we now- examine the evidence for a determination of whether there, was any substantial evidence that Mr. Beckwith’s death was the proximate result of Mr. Ayers driving his vehicle in a reckless or wanton disregard for the safety of others.

It was stipulated that chemical tests revealed that both drivers, the deceased and the appellant, had 0.15 per cent by weight, of alcohol in their blood upon examination at the hospital following the collision. In connection with the offense of driving under the influence of alcohol, Ark. Stat. Ann. § 75-1031.1 (A) (3) (Supp. 1967) provides:

“If there was at that time 0.15 percent or. more by weight of alcohol in the defendant’s blood, urine, breath or other bodily substance, it shall be presumed that the defendant was under the influence of intoxicating liquor.”

The stipulation as to chemical analyses and the statutory presumption speak with equal force for both drivers as to their being under the influence of intoxicating liquor.

No one testified as an eye witness to the collision. The only evidence that either vehicle was being driven in a reckless or wanton disregard of the safety of others, at the time of the collision, was the circumstantial evidence consisting of debris and marks on the pavement, tending to prove that the two automobiles came together with the point of impact being about two feet north of the center line, in the west bound traffic lane of the highway. The physical damage to the left fronts and sides of both automobiles would be circumstances tending to prove that they were traveling in opposite directions at the time of the collision, but the conflicting evidence as to the directions the respective automobiles may have been traveling leaves the hypothesis to be drawn from all the evidence subject to surmise and conjecture. There is no direct evidence as to the direction either automobile was traveling at the time of the collision.

Laura Dawson, a witness for the state, testified that she lived at Benton and that she and Jerry Emory were passengers in the automobile being driven by the appellant at the time of the collision. She testified that they had. gone to Little Rock about 8:30 or 9 p.m., earlier in the evening, and that the appellant had driven in a normal manner within the legal speed limits with nothing erratic about his driving, both to and from Little Rock. She testified that she was asleep at the time of the actual collision. Miss Dawson testified under cross-examination, ,as follows:

“Q. And where were you going on the night of the occasion on the return trip?
A. We was going to Hot Springs.
Q. Were you going anywhere after Hot Springs?
A. Yeah, we was going to Oklahoma.”

Under examination by the court Miss Dawson testified that she and the appellant had two or three beers, but she doesn’t say when nor where, except that the appellant “had one at the corner, then we had one down at Cliff’s.” She testified that she does not know what time the collision occurred, that she was asleep and that Emory said he was also asleep at the time of the collision.

Mr. E. H. Bradley testified that he was operating the Darby Service Station on East Grand Avenue in Hot Springs on the night of the collision. He testified that about fifteen or twenty minutes before midnight he observed a white Thunderbird automobile with Oklahoma license at his service station.

“Q. What was the — what did this Thunderbird do that you saw sir?
A. It darted in my driveway and then it never did pull into the pumps, it pulled back out on the highway and started on east.
Q. Did you notice anything peculiar about the manner in which the car was—
A. It was wobbling.
Q. Did it hit the curb or anything?
A. Yes, sir.
# * #
Q. How many people did you observe in the car, sir?
A. Two in the front. The driver and one girl.
Q. Did you take a very good look at it so you could identify the people in the car?
A. Not positively, no.”

Mr. Bradley testified that he later heard an ambulance siren and that about 12 o’clock he closed the service station and drove out the highway to where the collision had occurred. He does not say how far it is from hi's filling station to the scene of the collision, but he testified that the appellant’s Thunderbird automobile looked like the same one he had seen at his filling station. Mr. Bradley testified that he only saw two people, the driver and a girl, in the Thunderbird automobile at his service station, and Mr. Bradley was very positive in his testimony that the girl had blonde hair. Miss Dawson testified that she had dark brown hair on the night of the collision and that she was not wearing a blonde wig.

George Riggs, a trooper with the Arkansas State Police, testified that he was traveling east on the highway and came upon the scene of the collision. In part of Ms testimony Trooper Riggs referred to a diagram he had drawn on a blackboard and this portion of his testimony is difficult to follow in the record before us. Trooper Riggs concluded from Ms investigation, however, that the appellant was traveling in the east bound lane, crossed over the center line and collided with the decedent Beckwith’s automobile. There is.no evidence whatever as to where Mr. Beckwith had been or where he was going at the time of the collision, and there is no evidence at all, except that deducible from the testimony of Trooper Riggs, that would indicate the direction Mr. Beckwith was traveling or the traffic lane he was using at the time of the collision. Considering the testimony of Trooper Riggs so important to the hypothesis that may reasonably be drawn from all the evidence, we copy from the record in some detail, as follows:

“Q. Would you tell the court what you found at this accident?
A. I found a 1963 Thunderbird bearing Oklahoma license setting kind of on an angle across the east bound traffic lane and a ’54 Pontiac bearing Arkansas license off of the highway on the north side. There was a—
Q. What highway was this?
A. Highway 70, the new Little Rock highway. There was a wheel off of the Pontiac laying in the highway in the west bound lane and there was a man laying partly on the shoulder and partly in the west bound traffic lane. There was heavy debris in the west bound lane, and drag marks on the dirt from the Pontiac back up on the highway and a gouge mark from where the vehicle, where the drag marks came onto, the highway there was a gouge mark on the blacktop back up into the west bound lane.
THE COURT:
Q. Is this thing over here a diagram of this" situation ?
A. Yes, sir.
MR. CALLAHAN:
Yes, sir.
THE COURT:
Who drew it?
A. I did.
THE COURT:
Are you saying this ear on the bottom lane is Mr. Ayers’ ear?
(Trooper Riggs went to the blackboard where there was a drawing on the board)
A. Yes, sir, this vehicle is the Thunderbird and this vehicle No. 2 is the Pontiac.
THE COURT:
Thank you.
A. The drag marks in the dirt from the Pontiac came back up to the highway, the gouge mark came up in the west' bound lane to within about, 2 feet of the center line. The wheel from the left front of the Pontiac was in the west bound lane and the man was laying face down with his head north on the west bound shoulders. And there was debris scattered from this area all the way down to the other vehicle, to the Thunderbird.
* & #
A. The left front wheel of the Pontiac was knocked off apparently hy the impact and the car went down to the pavement and scratched it and that scratch starts about two feet inside the west bound lane and extends to the shoulder where the vehicle when it left the black top dug up the dirt and carried it where it slid to a stop.
Questions by the court :
Q. From the physical evidence and the debris, et cetera, which directions were these cars going?
A. From the way the Pontiac bopped the highway when it went off the Pontiac was traveling west and the Thunderbird east.
M. ¿¿, ” vT* “
A. ... in my opinion the evidence at the scene indicated that the Thunderbird was across the center line.
# # #
Q. Now, I will ask you as a matter of fact Mr. Riggs in the majority of accident investigation in which there has been a head-on collision, is it not the ordinary course that the cars end up past each other, that is the majority of investigations?
A. This is not a head-on collision.
Q. This is not a head-on?
A. It’s not a direct head-on collision.
Q. It was a glancing blow in your opinion?
A. In my opinion.
THE COURT:
Gentlemen, the pictures show what happened here, let’s get on with this case. I don’t know what the point of all this is.
MR. MATTHEWS:
Q. As a matter of fact there was some discussion about speeding a minute ago, does not your accident report reveal and so state that if in fact Mr. Ayers’ car was traveling in the east bound lane that it was knocked backwards some 132 feet by Mr. Beckwith’s car?
A. That’s where it was setting.
Q. Well does not your accident report so state?
A. Yes, sir.
Q. That Mr. Beckwith’s car knocked Mr. Ayers’ car backward some 132 feet and this is without the wheel on?
A. What now?
Q. I believe you said that the left front wheel of Mr. Beckwith’s car was knocked off in the accident is that correct?
A. That’s right.
Q. Now does this not indicate speed to you on Mr. Beckwith’s part if in fact it was the car in the west bound lane?
A. The damage was equally severe to both vehicles.
Q. But as it turned out Mr. Ayers car was knocked back 132 feet, is that not correct? From the approximate place of impact.
A. Yes, it was.”

State’s exhibit “A” is a picture of the Thunderbird automobile with. heavy damage indicating a crushing impact to its left front fender and wheel, with the damage extending back to the left door. State’s exhibit “B” is a front view picture of the Pontiac showing extensive damage to the entire left side. The left front fender and wheel appear to have been sheared off or crushed in, from even with the left side of the hood to the rear of the automobile.

State’s exhibit “C” and “D” are pictures of the highway apparently looking west. These exhibits show .skid, or “gouged” marks and debris from a point where an automobile wheel is lying on the west center line of the highway and leading in a westerly direction across the north shoulder of .the highway to where the Pontiac came to rest headed in a northwesterly direction just off the north shoulder of the highway. What appears to be the Thunderbird automobile.is shown in exhibit “C” just off the pavement some distance west of where the Pontiac left the highway. In exhibit “D” the Thunderbird is shown to be still on the pavement in the east bound traffic lane, headed in a southeasterly direction, and some distance (132 feet according to Trooper Biggs’ testimony) west of where the Pontiac left the highway.

Mr. Beckwith is dead and Mr. Ayers stands convicted in two courts of causing Mr. Beckwith’s death by driving his automobile - in a negligent or wanton disregard for the- safety of others. Mr. Ayers knows whether his drinking and driving killed a man on the highway and the trial court may be, and obviously was, satisfied in his own mind that Mr. Ayers committed a negligent homicide, The question before us, however, is whether the state proved Mr. Ayers guilty of the erime for which he is charged, under the rules of evidence applicable to circumstantial evidence in a criminal case. We .are forced to the conclusion that the state has not met that burden.

The criminal negligence in this case falls most heavily on the driver who crossed the center liné of the highway, and the evidence in the record before us would require surmise and conjecture for a determination of which driver crossed the center line.

If the automobile Mr. Bradley saw in his service station was the appellant’s automobile, then the appellant would have been driving in the east bound lane if he continued east after leaving the station. If the appellant was on his way from Little Rock to Hot Springs, as Miss Dawson testified he was when the collision occurred, he would have been traveling the west bound lane toward Hot Springs. One version is as good as the other on this point. The girl in the automobile Mr. Bradley saw had blonde hair. Miss Dawson testified that her hair was dark brown and that she was asleep when the collision occurred. Apparently, no one else saw or talked to Miss Dawson or the other passenger, Mr. Emory, on the night of the collision, and apparently no one ever inquired as to where Mr. Beckwith had been or where he was going, or the direction he was traveling when the collision occurred. Trooper Riggs only surmised that Beckwith was traveling west by the gouged marks in the highway.

The physical evidence at the scene of the accident is consistent with most any hypothesis. The appellant could have been traveling west, struck the Pontiac spinning it around and knocking it north and west whatever number of feet it did travel, and this theory would be as consistent, if not more so, than the theory that the Pontiac struck the appellant’s automobile a glancing blow in the wrest bound lane and knocked it almost straight back a distance of 132 feet. The distance the Pontiac traveled following the impact is not in the record, but it is obvious from State’s exhibit “C” that it was nowhere near 132 feet. There were no skid marks made by either automobile prior to impact. We conclude from the record before us that the judgment of the trial court was of necessity based on surmise and conjecture as to the facts, and that the judgment must be reversed.

Reversed.


source: Caselaw Access Project

license: Public Domain

text:
    Walter Henry FOX v. Dorothy FOX
    5-4961
    444 S. W. 2d 865
    Opinion delivered September 22, 1969
    [Rehearing denied October 20, 1969]

      Butler & Hicl&ey, for appellant.

      Harold Sharp, for appellee.
   J. Fred Jones, Justice.

Walter and Dorothy Fox were married in Arkansas in 1934; and on May 14, 1945, while living in Memphis, Tennessee, Dorothy obtained an uncontested divorce from Walter. The custody of the couple’s seven year old daughter was awarded to Dorothy and she was awarded the household furniture in lieu of alimony. About twro months following the divorce Dorothy and Walter effected a reconciliation and resumed their marital relations in Memphis without the benefit of matrimony. In August 1945, they moved to Forrest City, Arkansas, where they both were employed by the Kroger Company and they purchased a home in Forrest City, taking title as husband and wife. They continued to live in Forrest City as husband and wife until m July 1967, when Dorothy again filed suit for divorce and for a determination and award of property rights; for alimony, attorney’s fees and court costs. In addition to her grounds for divorce, Dorothy’s petition alleged that Walter had induced her to resume the marital relations following their Tennessee Divorce by falsely repesenting to her that he had the divorce decree set aside soon after it was rendered.

In answer to the petition, Walter admitted the Tennessee divorce but denied that it had ever been set aside and he denied that he ever told Dorothy that it had been set aside. He admitted the purchase of real property, taking title in both their names as husband and wife but contends that a tenancy in common was intended rather than an estate by the entirety. By counterclaim Walter alleged that Dorothy had taken checks and money belonging to him, including an old coin collection, of a total value of $4,169. He prayed judgment for a return of the checks and money, or in the alternative, for a judgment in the amount of their value to be offset against Dorothy’s one-half undivided interest in the real property.

The chancellor dismissed Dorothy’s petition for a divorce and alimony for the reason that they were not married and for the reason that Walter was under no legal obligation to support her. The chancellor found, however, that Walter had lulled Dorothy into a sense of false security and induced her to resume their marital relations under the belief that they were still legally married. Apparently on the theory of implied contract, the chancellor awarded Dorothy a judgment for $3,900 for services she rendered to Walter during the last five years they lived together. The chancellor also awarded Dorothy an attorney’s fee of $250 to be paid by Walter.

Walter has appealed from the chancellor’s decree and designates the following points for reversal:

“Lower court erred in ordering Walter Fox to pay Dorothy Fox’s attorney an attorney fee.
Chancellor’s awarding of certain personal property to appellee, Dorothy Fox, was not warranted under the law, or supported by competent evidence.
Chancellor erred in awarding $3,900.00 to appellee for services.
Lower court erred in failing to give appellant judgment against appellee for the value of the old money taken from their safe deposit box.”

An itemized discussion of the points relied on and further discussion of the chancellor’s decree would only add volume without weight to the decision we reach in considering this case on trial de novo.

The chancellor’s finding that Walter misled Dorothy into believing that their divorce had been set aside and tnat they were still married when they started living together again within two months following Dorothy’s appearance in the Tennessee court where her petition for divorce was granted, is not against the preponderance of the evidence. Walter was out of the state when Dorothy’s petition was heard, but he returned to the state immediately following the divorce hearing and he and Dorothy resumed marital relations without anyone knowing of the divorce except the parties to it and Dorothy’s two sisters who attended, the hearing, Dorothy’s father testified that he never did know about the divorce. Dorothy and each of her two sifters testified that immediately upon Walter’s return to the state., .soon after the divorce, he .advised. each of them separately and.also advised them collectively that he had had the divorce “thrown out”; that Dorothy believed him,..and that upon this representation, and at Walter’s request,. Dorothy returned with their seven year old daughter to live with Waiter. . ■ • . _ . , '■ ... ■

Walter denies that he told Dorothy, or anyone, else, that he had the divorce set aside. He.testified, that at Dorothy’s suggestion and request, they resumed their marital relationship because of their child and that he agreed to take Dorothy back on a “trial basis.”..He testified that their relations continued on a “trial basis” for twenty-two years from within two months following the divorce until Dorothy filed her -petition "in' the case at bar. Walter even denies that he ever ’held-Dorothy out as his wife during all this time they lived together. He’-admits that he carried her as á dependent wife on their joint income tax returns for the purpose of refunds represented by the checks involved in this' case. Walter took Dorothy to Shrine conventions as his wife but denies that' he ever considered, or held her out, us such. He admits that he may have introduced'-her Oh .a few occasions, for his' convenience,- as -“Mrs'.- Fóx.” Walter admitted that Dorothy worked when they first resumed the marriage relationship, but does not remember whether her income was reported as a wife’s vncome on their joint income tax-returns. ■ :

Dorothy’s testimony indicates that she thought her divorce decree was an-interlocutory decree and-hot final on the date entered. - ■ ; "• ':-

“Q... After you obtained this divorce, you never took any steps yourself to have the decree set -.- -aside? - ,- - - , .. ¡ ., . . . •' - ,,
A. No, I didn’t.
Q. Well, now, Mrs. Fox, don’t you think if you got the divorce that you’d have to take some steps to get it set aside?
A. I never thought anything about it. I didn’t know anything about the law. I don’t know how it works.
Q. I mean logically, doesn’t it seem like to you that a person can’t just say, ‘I’m going to go have this set aside,’ without the other party to the suit doing something about it too?
A. Well, I thought there was a time limit that you could be separated and you could go and have it thrown out.
Q. But you never did anything about it yourself?
A. Well, he told me that he did.
# # #
Q. Now, on what basis did you and Walter Fox go back together after this divorce? What was the basis—
A. As man and wife. He was supposed to have had that thrown out. Why should I doubt him? We come over here and we both went to work. We lived here as man and wife, and I thought we were man and wife.
# # #
Q. Have you and he ever agreed to be remarried since 1945 when you got this divorce?
A. No, I told you I thought it was all settled. I thought he had that thrown out.
Q. You and Walter Fox have not had any children since this divorce in 1945, have you?
A. I had a miscarriage.
Q. When was that!
A. In ’46, I believe. I had two miscarriages.”

The record contains no evidence of conduct on Dorothy’s part inconsistent with her belief that she and Walter were legally married, and there is no evidence of Dorothy’s behavior inconsistent with that of a dutiful wife during all the years following the divorce. Walter admits that he knew they were not legally married, and he goes to considerable length in proving that he considered himself unbound to Dorothy by any legal bonds of matrimony.

“Q. Did you ever take any female other than Dorothy to any of these Shrine meetings or Grotto meetings!
A. Well, I don’t know. That’s my personal business. I don’t think I have to answer that.
Q. Well, I don’t know. The Judge may tell you you have to.
THE COURT: Yes, I think you have to answer that.
A. Did I ever take any other women! Yes, sir, I have.
Q. Who did you take!
A. Oh, well, different ones; I don’t remember.
Q. Well, try to remember which ones you took somebody else to.
A. Well, I don’t remember. I don’t remember exactly what their names were.
Q. Well, what convention was it that you took some one else to?
A. One at Jackson, Mississippi, I taken one.
Q. Would that be the woman you’re living with now in Mississippi?
A. No.
Q. Another woman?
A. Yeah.
* * *
Q. Mr. Fox, was Mrs. Fox content to live with you from 1945 up until just prior to this suit was filed?
A. Had she lived with me?
Q. I mean, was she content living with you and happy living with you?
A. Up until June. See, I was going with a woman down in Jonesboro, and she come in there, and that’s been in 1955 and her [and] Carolyn both never said anything about it.
Q. Well, the first trouble you had was when she went down there and caught you down there in Jackson with this other woman?
A. And scratched up my arm and everything there, and that was the first time.
Q. And up until then she was happy living with you just like things were?
A. Seemed to be. I never had any complaints.”

Walter denied that he was cohabiting with another woman part time in Jackson, Mississippi, but on deposition he testified:

“Q. Your home has been in Arkansas since ’45?
A. All time; hasn’t changed since then.
# * #
Q. Where is your home now? Is it here?
A. Yes.
Q. Do you maintain any other residence?
A. I pay taxes and insurance, but worked every day.
Q. Do you maintain a residence at any other place ?
A. I had my mail changed to Russum Hotel in Jackson.
Q. Do you live at that same hotel?
A. Yes.
Q. Do you live with another woman there now?
A. I have been for three years.
Q. Who is that woman?
A. Eula Leach.
Q. What is her address?
A. 512 Hilda, Jackson.
Q. Are you married to her?
A. No, not unless a common-law marriage down there. ’ ’

Walter had collected from his employer expense items, including reimbursement for telephone calls to his wife. As to these items, he testified as follows:

“Q. Mr. Fox, I hand you plaintiff’s Exhibit No. 9, which are several expense sheets you prepared?
A. I wrote them.
Q. Are these expense sheets always true?
A. No, I think they commonly call them ‘swindle sheets.’
Q. Do you pad these sheets?
A. I think every salesman does. I think they do just like they do on their income tax. If they can get by with it, why it makes the biggest crooks out of anybody, the expense account or income tax.
Q. Well, is that the reason Dorothy Fox’s name appears on that?
A. I took that — yes, as my expense.
Q. You were just getting a little something out of your company?
A. Well, they expect it.”

Under the testimony of the parties in this case, the chancellor was justified in giving more credence to Dorothy’s testimony than he did to Walter's, and under Dorothy’s testimony and that of her two sisters, Walter led Dorothy to believe that the divorce had been set aside and that their legal marriage was still valid when they resumed the marital relationship in July or August, 1945.

Our statutory law does not provide a solution for the problem presented by the facts in this case, but a statutory solution is not necessary. A public and social interest is involved in such cases as this and pure equitable principles will prevent Walter from obtaining all the advantages of a legal marital relation, which to him was illicit and to Dorothy was legal, and at the same time avoid all the responsibility and obligations incidental to a legal marriage while enjoying, and even abusing, the rights and privileges of a single and unmarried man.

We conclude that under the evidence in this case, Dorothy should have, as near as equity can legally decree, such rights as she would have been entitled to had her thirty-three years of normal marital relations not been interrupted by the divorce which Walter convinced her had been set aside within two months of its rendition.

Equity is not partial to Arkansas in such cases as this. In the California case of Lazzarevich v. Lazzarevich, (1948) 88 Cal. App. 2d 708, 200 P. 2d 49, on facts very similar to those in the case at bar, the putative wife sued for her services and for a refund of her contributions to the household expenses. In permitting recovery, the California Supreme Court said:

“In some jurisdictions she has an action in damages for deceit against her putative husband in those cases where by fraud or misrepresentation he had induced her to enter into the supposed marriage relation. See Cooper v. Cooper, 147 Mass. 370, 17 N. E. 892, 9 Am. St. Rep. 721; Blossom v. Bar rett, 37 N. Y. 434, 97 Am. Dec. 747; Larson v. McMillan, 99 Wash. 626, 170 P. 324; Amsterdam v. Amsterdam, Sup., 56 N. Y. S. 2d 19 . . .
# * #
In some jurisdictions including California the deluded woman is permitted to recover the reasonable value of her services over and above the value of the support and maintenance furnished her by her supposed husband. Sanguinetti v. Sanguinetti, 9 Cal. 2d 95, 100, 69 P. 2d 845, 111 A. L. R. 342.”

In the case at bar the chancellor awarded Dorothy a money judgment for services she rendered while living with Walter under the mistaken impression that she was his lawful wife. Dorothy did not sue for a money judgment on implied contract or for damages because of fraud. She sued for a divorce, a determination and award of property rights, for alimony and attorney’s fee.

In the California case of Spellens v. Spellens, (1957), 49 Cal. 2d 210, 317 P. 2d 613, the defendant encouraged the plaintiff to obtain a divorce from her husband Robert. Three days after an interlocutory decree was entered, the defendant convinced the plaintiff that a Mexican marriage following a California interlocutory divorce decree, would be legal and recognized as legal in any of the states. This advice was confirmed by a Mexican lawyer who performed a marriage ceremony for the plaintiff and defendant and they returned to California and lived as husband and wife. The defendant treated the plaintiff with cruelty and suggested that they separate. The plaintiff resisted the suggestion and the defendant then advised her that he had been informed that the Mexican marriage was invalid. The plaintiff brought action praying that the marriage be declared valid, that defendant be estopped to question its validity, and that she be awarded separate maintenance and an attorney’s fee.

In holding that the defendant was estopped to dény the validity of the marriage and in commenting on the effects of such estoppel, the Supreme Court of California said:

“The theory is that the marriage is not made valid by reason of the estoppel but that the estopped person may not take a position that the divorce or latter marriage was invalid.
# # *
“ ‘We think it may now be stated that the general public policy in this jurisdiction, as judicially interpreted, no longer prevents application in annulment actions of the laches and estoppel doctrines in determining the effect to be given such divorce decrees.’
. . .It is not the marriage which is found valid as indicated by the above authorities . . . Rather it is that defendant by reason of his conduct will not be permitted to question its validity or the divorce; so far as he is concerned, he and plaintiff are husband and wife. * * *
... It may be noted also that we are not recognizing a common law marriage which does not exist in this state for the theory is that the marriage is not validated; it is merely that defendant cannot contest it. Thus the judgment must be reversed.
It follows from the estoppel that plaintiff was entitled to attorney’s fees, costs and support during trial and on appeal.”

To the same effect are the Tennessee cases cited by app’ellee. Smith v. North Memphis Savings Bank, 115 Tenn. 12, 86 S. W. 392, and Hale v. State, 179 Tenn. 201, 164 S. W. 2d 822.

The evidence of record in the case at bar sustains Dorothy’s contention that she lived with Walter as his wife for more than twenty years under the mistaken belief, brought about by Walter’s deceit, that the divorce had not become final or that the decree had been set aside and that she and Walter were still'legally married during the entire period they lived together. There is no evidence in the record inconsistent with Dorothy’s belief that she was legally married to Walter, and Walter has offered no proof tending to show that Dorothy did not believe they were still legally married, except her long toleration of his own philandering activities.

A legal common-law marriage cannot be entered into in Arkansas, nor can one be created by estoppel, but equity should, and we hold that it does, under the facts in this case, require that Walter be estopped to deny that the divorce decree was set aside or “thrown out” before it became final, and he is estopped to deny such rights as Dorothy would be entitled to had a divorce decree never been entered. In other words, we simply hold that as between Walter and Dorothy, Walter is estopped from setting up the prior divorce as a defense to Dorothy’s petition, and that Dorothy is entitled to exactly the same property rights, alimony and attorney’s fees as she would be entitled to had there never been a divorce.

The entire value of accumulated property is not of record in this case, and the record clearly indicates that the chancellor considered that he had no discretion other than to dismiss Dorothy’s petition for alimony. The amount of the attorney’s fee is not questioned on this appeal and the chancellor’s award of that item is affirmed. This case is remanded to the chancery court for a determination of Dorothy’s rights under the rule herein announced and for entry of a decree not inconsistent with this opinion.

Affirmed in part and remanded for further proceedings.


author: Conley Byrd, Justice.

text:
    ARKANSAS STATE HIGHWAY COMM’N v. W. F. LEMLEY et al
    5-4945
    444 S. W. 2d 692
    Opinion delivered September 22, 1969

      Thomas B. Keys and James N. Dowell, for appellant.
    Gordon, Gordon & Eddy and Williams & Gardner, for appellee.
   Conley Byrd, Justice.

For reversal of the $13,000.00 award of compensation in this eminent domain action the Arkansas State Highway Commission relies upon three points:

“I. the trial court erred in not granting the appellant’s motion for change of venue.
“II. The trial court erred in not striking the testimony of witnesses for the defendant in regard to value and damages based upon a unity of use between the two separate parcels of land. Also the trial court erred in refusing to give plaintiff’s Instruction No. 1 and in giving defendant’s Instruction A.
“III. The trial court erred in giving the instruction as to ‘financial loss.’ ”

POINT NO. I. We find no merit in the contention that the trial court erred in failing to grant a change of venue. Appellant here made substantially the same showing upon the same pleadings that it made in Arkansas State Highway Commission v. Duff, 246 Ark. 95, 440 S. W. 2d 563 (1969). That decision is determinative of the issue here.

POINT NO. II. The record shows that appellees W. F. Lemley and Roy V. Jackson own the WV2 SE, SW NE of Sec. 33, and also the SW NW Sec. 34, T 7 N, R 17 W. The taking, for construction of interstate 40, totals 12.72 acres of the 120 acre tract in 'Section 33. There remains 40.8 acres south of the interstate. The 60.48 acres lying north of the interstate is without public highway access. The SW NE of Sec. 33 is timber land. One quarter mile east, separated by an intervening ownership, is the SW NW of See. 34, also timber land. After the Condemnation action was filed on the section 33 land, the appellees petitioned Chancery Court to enjoin construction of interstate 40 because it denied the landowners right of ingress and egress to and from the Section 34 property. This action was transferred to Circuit Court and the two causes were consolidated for trial.

At the trial it was shown that the landowners had an oral agreement with the intervening property owner for access to their land in Section 34 from the land in Section 33. Subsequent to institution of the eminent domain action, this agreement was reduced to writing. Thus appellees here had ingress and egress from Highway 64 across their lands in Section 33, across the intervening easement, to the lands in Section 34.

Witnesses for the landowners testified that there was unity of use for agricultural purposes between the lands in 33 and the lands in 34. However the witnesses on cross-examination admitted that the lands in Section 34 were timber lands and were not being used for farming operation at the time. Pursuant to such testimony the trial court submitted to the jury the issue of whether or not the lands in Section 33 and Section 34 constituted a unit, and denied the Highway Department’s requested instruction that the jury was to disregard any damages to the land in Section 34.

Obviously, the testimony here is woefully insufficient to show a unity of use for farming purposes between the 120 acre tract in Section 33 and the timbered lands in Section 34. Consequently the trial court did err in giving appellees’ requested Instruction A on the unit of value, but it does not necessarily follow that the trial court erred in refusing to give the Highway Department’s requested Instruction No. 1, that the jury should disregard any damage to the lands in Section 34. It is pointed out in an annotation in 49 A. L. R. 368 that a property owner may recover damages for the vacation or the closing of a street where his property is cut off entirely from access to the general system of streets by such vacation or closing, even though the street immediately in front of his property remains open, since the latter is of small, if any, consequence under these circumstances. In Cooke v. City of Portland, 136 Ore. 233, 298 P. 900 (1931), the proposition is stated in this language :

“Courts have been unable to announce any hard and fast rule to determine when owners may and when they may not recover compensation for injury to property by reason of the vacation of a street. However, it may be said with a degree of certainty that an owner whose property abuts upon that part of the street vacated is entitled to be compensated for deprivation of his right of access to his property. It is also a well-established general rule that those owners whose property does not abut upon the street vacated are denied compensation if they still have access to the general system of streets. See numerous eases in exhaustive note 49 A. L. R. 330. The mere fact, however, that the property does not abut on the street vacated does not preclude compensation if the owner has been deprived of all access to his property. This could be accomplished by the vacation of streets on both sides of a property or by closing all of the street except that part upon which the property abuts. The real test is not whether the property abuts upon the street vacated but whether a special injury has been sustained by reason of the vacation.”

Since there was testimony from which the jury might have found that the landowners had access to the tract in 34 by the easement mentioned and it is conceded that there was no other public ingress and egress to the property we cannot say that the trial court erred in refusing to instruct the jury to disregard any damages to the Section 34 property.

POINT NO. III. After the trial court had instructed the jury with reference to the before and after fair market value of the property and had defined the term “fair market value” he then instructed the jury as follows :

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

The Highway Department objected specifically to the above instruction because it allowed the jury to consider elements of damages not properly a part of just compensation. We hold that the instruction given was erroneous. It permits the jury to take into consideration items not a part of market value, such as the landowner’s circuity of travel between the two tracts, and cost of acquiring new access. Such items are not necessarily recoverable in ah eminent domain action, for a market may otherwise exist for the land without regard to appellees’ access.

Reversed and remanded.

George Rose Smith, J., concurs.


text:
    Silas KINCAID et al v. Mrs. W. M. TAYLOR, Adm’x et al
    5-5006
    445 S. W. 2d 67
    Opinion delivered September 22, 1969
    [Rehearing denied October 27, 1969]

      Wright, Lindsey & Jennings; By: William R. Over-ton, for appellants.

      McMath, Leatherman, Woods & Youngdahl, for appellees.
   Conley Byrd, Justice.

On January 5, 1968, at 5:20 P.M. a collision occurred on Highway 65 at the Plain-view entrance to the Pine Bluff Arsenal between a rock truck-trailer unit operated by Eldon H. Chadwick and an automobile driven by appellee Charles L. Burnett in which W. M. Taylor was a passenger. From jury verdicts in favor of appellee Mrs. W. M. Taylor, Administratrix of the estate of W. M. Taylor, deceased, and appellees Charles L. Burnett and wife Helen, which totaled in excess of $100,000.00, appellant Silas Kincaid, d/b/a Kincaid Trucking Co., appeals.

There is ample evidence from which the jury could find that Chadwick was an employee of Kincaid. Consequently the sole issue is whether there was substantial evidence to warrant a finding that at the time of the occurrence Eldon Chadwick was acting within the course or scope of his employment as an employee of Silas Kincaid.

The record shows that Silas Kincaid is a contract rock hauler. As such, he owns several trucks and semitrailers and employs a number of people in connection therewith. In addition to the truck tractors owned by him, he had working arrangements with persons such as Chadwick, w'ho owned their truck tractors and used Kincaid’s trailers. The arrangements recognize that Kincaid would bid on a job to haul rock for so much per ton. Mr. Chadwick’s testimony with reference thereto, as abstracted by appellant, is as follows:

“My working agreement with Mr. Kincaid was that out of one hundred percent of the gross I received seventy-five percent of the revenue. The gross depended upon what I hauled. It was determined by so much a ton. I hauled on various jobs, some of them were Mr. Kincaid’s and some of them were other people’s. Mr. Kincaid did some of the jobs. Sometimes he would assign me to a job that he didn’t bid in. I made an average of about $1,000.00 a month and was paid every week. My driver’s check and truck check averaged about $250.00 per week.
“The driver’s check was determined by the amount of hours that I worked each day. The truck check was determined by taking out the driver’s check, any fuel or anything else I may have gotten from Mr. Kincaid. The amount of my driver’s check would vary each week depending on number of hours worked. I got $1.60 an hour for the driver’s check for 40 hours and time and a half over 40 hours. Approximately $100.00 to $125.00 per week would be for the driver’s check. About $100.00 to $125.00 would be for the tractor.”

Under their arrangement, Kincaid furnished the trailer tires and hoist and was also responsible for brake linings and brake drums. Chadwick was responsible for the tires and repairs for the tractor. Chadwick also performed the maintenance on the trailer with reference to lights and stuff like that and had tools for that purpose. It was also his duty to inspect it, keep it up and report any repairs that were needed as well as preventing theft. Part of the agreement between the two was that Kincaid would withhold workmen’s compensation, Social Security and income tax from Chadwick’s check.

The tractor-trailer units owned by Kincaid were parked at Kincaid’s shop each night. Chadwick, however, drove his tractor-trailer unit home each evening. While Chadwick was required to come by Kincaid’s office each night to turn in his weight tickets, he did not always go there in the morning before going to work, bnt instead reported directly to the rock quarry where the loading was to commence. It was shown that it took about 45 minutes to hook up the trailer if all the equipment were available and that if the equipment were not available, it would take about a half a day.

On the day of the accident Chadwick had hauled rock for a contractor named Olsen under an arrangement between Olsen and Kincaid. Around noon Chadwick was bumped off the Olsen job because Olsen had enough trucks of his own to cover the job. After leaving Olsen’s job near Granite Mountain, in the vicinity of Little Rock, Chadwick proceeded toward Kincaid’s office but stopped at Jefferson, Arkansas, and visited an old friend. He then stopped at Kincaid’s office to turn in his hauling tickets. Chadwick says that at the time this accident occurred (5:20 P.M.) he was going to his house to eat and spend the night and that he had no further work to do that day.

For reversal appellant relies upon Knighton v. International Paper Co., 246 Ark. 523, 438 S. W. 2d 721 (1969). However in that case it was shown that King, the alleged employee, was the owner of the vehicle, that he had completed his day’s work and that he was on his way home after having stopped to repair his truck. The situation here is not nearly as clear as were the facts in the Knighton case. While it is true that Chadwick owned the tractor, it is also clear from the testimony that the rock tonnage could not he moved without the use of the trailer nor could such movement be made if the trailer was not in operating condition both from the standpoint of utility and highway safety. According to the undisputed testimony, these repairs were not ordinarily made at Kincaid’s shop but Chadwick generally did them on his own time and with his own tools.

When viewed in the light most favorable to appellee, there is evidence from which the jury may have inferred that Chadwick’s responsibilities to Kincaid did not cease with the turning in of his weight tickets. This we believe could be inferred from these facts: Kincaid controlled the use of the trailer at all times; Chadwick could not use his tractor on Kincaid’s job without the use of Kincaid’s trailer; that Chadwick had some maintenance responsibilities with reference to Kincaid’s trailer that were to be performed by him away from Kincaid’s shop; that Chadwick owed Kincaid the duty of inspecting the trailer; that it was not practical to unhook the trailer because of the time required to hook it up the next morning; that Chadwick often went directly from his home to the loading site of the next rock haul rather than stopping by Kincaid’s shop in the morning; and that the purpose of the arrangement was to move as much tonnage as possible in a given day. Therefore the testimony here is such that the jury could find that the tractor trailer combination was a unit subject to Kincaid’s control and that Kincaid received a benefit from the arrangement whereby Chadwick took the truck-trailer unit home at night. See Helena Wholesale Grocery Co. v. Bell, 195 Ark. 435, 112 S. W. 2d 416, (1938).

Affirmed.


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

text:
    Robert L. HARRISON v. Lindell R. COLLINS et al
    5-4940
    444 S. W. 2d 861
    Opinion delivered September 22, 1969
    [Rehearing denied October 20, 1969]

      Reed & Blackburn, for appellant.

      Lightle & Tedder, for appellees and cross-appellants.
   Frank Holt, Justice.

This is a title dispute to twenty acres of an “oversized forty”:acre tract of land. Appellant claims title by a tax deed-.and payment of taxes thereon. Appellee Collins asserts title through a warranty deed and adverse possession. Appellee National Old Line Insurance Company is Collins’ mortgagee. The chancellor refused to quiet and confirm title in either the appellant or appellee Collins.

For reversal both appellant and cross-appellant Collins contend that the chancellor erred in denying their respective claims of title to the land. We agree with the cross-appellant that the title should be vested in him.

Appellant claims ownership of the land based upon the assertion that the land is unimproved and unenclosed and that he and Ms predecessor in title have paid taxes thereon for more than seven years under the color of title of a tax deed pursuant to Ark. Stat. Ann. § ST-102 (Repl. 1962). The bases of his claim appear undisputed other than the lands being unenclosed. There is no attack upon the validity of the tax deed. On the other hand, the appellee and cross-appellant, Collins, claims ownership as the successor in title to a 1944 warranty deed and by adverse possession. Appellant argues that the warranty deed upon which Collins relies is defective and that any tax payments made upon the property are based upon an invalid description of the property on the tax books. Even though we should agree with appellant, we think that Collins has acquired title to the property by adverse possession for more than the seven years as is required by § 37-101. A claim of title to property based upon a deed and payment of taxes is subservient to the claim of one who holds possession adversely for the statutory period. Hargis v. Lawrence, 135 Ark. 321, 204 S. W. 755 (1918).

There was evidence by Collins and other witnesses that since 1944, the date of the warranty deed conveying this property to appellee’s father who is his predecessor in title, both father and son have continuously exercised adverse acts of ownership to this property. The property was mortgaged several times. For more than twenty years an “island,” including the land in question, was known and considered by the residents of that vicinity as a part of the Collins farm. Collins owns the adjacent lands on the north, south and west of the land in question. On the east side, of the “island,” it appears undisputed that during this time the Collinses and an adjoining landowner maintained a joint fence for their common benefit. This fence was on the property of the adjacent landowner and separated his property from the twenty acres in question. The disputed land lies east of a horseshoe bend or “island” caused by the Little Red River. According to appellee’s evidence the disputed property was surrounded by the joint fence on the east and by appellee’s other property on the south, west and north. 'The “island” property, including the twenty acres in dispute, has been used by appellee and his father for pasturing cattle each year since the property was acquired in 1944. Whenever high water damaged or destroyed the fence, it was rebuilt by appellee and his adjoining landowner to contain their cattle. Appellee Collins conveyed timber cutting rights' which precipitated this action.

When possession of property is so conspicuous that it is generally known and talked of by the public or people in the neighborhood, such possession is said to be notorious. Terral v. Brooks, 194 Ark. 311, 108 S. W. 2d 489 (1937). In Berry v. Cato, 220 Ark. 36, 245 S. W. 2d 824 (1952), we said:

“* * # mllst be guch. as would give notice to the general public of the claimant’s intention to hold adversely. These elements indicating possession must clearly appear where, as here, the land is not inclosed and tax payments are not shown.”

Adverse possession ripens into ownership when there are seven years of open, actual, notorious, continuous and hostile possession with the intent to hold adversely and in derogation of another. Staggs v. Story, 220 Ark. 823, 250 S. W. 2d 125 (1952); Dierks Lbr. & Coal Co. v. M. H. Vaughn & J. A. Barnett, 131 F. Supp. 219 (Ark. 1954). In our view, in the case at bar, there was sufficient actual, open and notorious possession of the land in question to vest title in Collins. In Black v. Clary, 235 Ark. 1001, 363 S. W. 2d 528 (1963), we said:

“Notice of adverse possession may be actual or it may be inferred from facts and circumstances, such as grazing cattle, erection of a fence or improving the land.”

We hold that a preponderance of the evidence in the case at bar, upon a trial de novo, establishes title to the property in Collins by his meeting the requirements of adverse possession for more than the statutory seven years. Affirmed on direct appeal; reversed on cross-appeal.

Fogleman and Brown, JJ., dissent.

John A. Fogleman, Justice,

dissenting. I must respectfully dissent because I am convinced that the majority has overlooked matters which should be determinative on this appeal. In the first place, the source of appellant’s title has been treated rather lightly. In the second place, the fact that the chancellor found that appellees had failed to sustain their claim of adverse possession is given no significance. In ignoring this finding, the majority has also disregarded the rule that the findings of the chancellor on disputed questions of fact will not be disturbed unless they are clearly against the preponderance of the evidence. It seems to me that the findings of the chancellor are supported by the evidence. Although the chancellor refused to confirm title in either party, both argue here that title should be confirmed in either appellant Harrison or appellee Lindell R. Collins. I submit the title should be confirmed in Harrison.

This action was instituted May 19, 1967, by appellant’s petition to acquire title. The action was brought against J. T. Gilliam, T. O. Collins and Mrs. T. O. Collins. On June 8, 1967, Lindell R. Collins, who claimed by deed from T. O. Collins, filed an intervention. In this intervention, Collins alleged that, either in person or by his predecessors in title, he had at all times during the past twenty years been in open, adverse and notorious possession of all the lands involved. Trial was had on March 21, 1968. The chancellor found that appellant had failed by a preponderance of the evidence to prove that he was the lawful owner of the lands involved and that the intervenor, Lindell Collins, had failed by a preponderance of the evidence to prove that he was the lawful owner and entitled to possession of the lands. Thus the claim of adverse possession was found to be without the required evidentiary support.

It was stipulated that the common source of title to the property was A. L. Hilger, who obtained title to the lands by deed dated December 5, 1901. The disputed tract consisted of 20 acres out of the Northwest corner of the Southwest quarter of Section 4 in Township 9 North, Range 8 West in Cleburne County, Arkansas. The tract was described by a proper metes and bounds description in all of the proceedings. The respective chains of title prior to 1958 are of little consequence. The quarter-quarter section out of which this tract is claimed consisted of 44.09 acres, being what is commonly called an “oversized forty.” Throughout the years relevant to this controversy, there appeared upon the county tax books a tract described as the fractional Northwest quarter of the Southwest quarter of the Section. The acreage given on the tax books was 20 acres. This tract was sold at the collector’s tax sale to A. L. Clark on November 14, 1955, for taxes delinquent for 1954. In due course, the clerk’s deed to A. L. Clark for these lands was issued on April 4, 1958. The deed was filed for record on the same date. The validity of this deed is not questioned in this proceeding. Of course, this description carried all of the Northwest quarter of the Southwest quarter of the Section. Alphin v. Banks, 193 Ark. 563, 102 S. W. 2d 558; Bartel v. Ingram, 178 Ark. 699, 11 S. W. 2d 488. In this situation the acreage designation was surplusage merely and did not control the land description and the deed. Turner v. Rice, 178 Ark. 300, 10 S. W. 2d 885; Alphin v. Banks, supra. This tax deed carried all the interests of all of the predecessors in title of both parties as of the date of the deed. Osceola Land Company v. Chicago Mill & Lbr. Co., 84 Ark. 1, 103 S. W. 609. Clark conveyed the 20-acre tract claimed by appellant to Billy Boles Land Investment Co., Inc., with other lands, by deed dated December 31, 1962. Billy Boles Land Investment Co., Inc., conveyed the tract to Buel E. Hensley on October 27, 1966. Hensley conveyed it to Harrison on October 29, 1966. Thus appellant had a perfect record title. Wimberly v. Norman, 221 Ark. 319, 253 S. W. 2d 222. He was entitled to have his title quieted as against appellees, unless he was barred by the seven-year adverse possession statute. Clark, appellant’s predecessor in title, first became entitled to possession on the date of his clerk’s tax deed. The statutory bar then must have elapsed after April 4, 1958. The possession of Collins and his predecessors in title must have been actual and continuous for seven years or more after the date of this deed.

Appellee testified that he acquired the property from his father, T. O. Collins, in 1961. He did not testify as to any acts of possession by him or his predecessor. He simply stated that he acquired the property, gave mortgages on it and sold timber to Mr. Gilliam. The selling of the timber provoked this litigation.

Mr. T. O. Collins did not know where the lines of the property were because, as he said, “he didn’t care that much about it.” On direct examination he was asked what he used this island for. His response was:

“Oh, we would just pasture cattle up until I guess in ’62 or ’63 when I deeded this place to my son. We didn’t farm that down there the last eight or ten years; we would just pasture it; we had it in fescue and the cattle would go in there and water and lay in the shades. There wasn’t no enormous amount of grass grown, but we did graze it, and the cattle stayed on the Island there.”

This witness further testified that the cattle would go over on this property in the summertime where there was shade and where they could wade in and out of the water. He said that this particular tract was not cleared and had never been farmed and that the possession consisted of pasturing cattle over there for about 25 years. While he indicated that there was not any year since he acquired the property that his cattle had not been on the land on the bend, it is not clear that he was referring to the land involved in this litigation, because he added that the land of which he was speaking at that time had been farmed the last four or five years in soybeans and not pastured in the summertime. It was, he said, used for pasture after the crops were gathered.

Linus Lewis, a witness called by appellees, gave the following testimony on the possession of the property:

“Q. Do you know to what extent Mr. Collins hag used that land and how he has used it?
A. Well, he let his cattle run on it.
Q. Is it fit for pasture?
A. Not too much pasture ground; but, when the river is down, the cattle would come across over on it. Once in a while, they get across the fence and come on down on me.”

On cross-examination the witness said that he had been on the tract six or eight times since 1923. He supposed that his visits would be years apart. Lewis stated that the Collins cattle got across the fence onto his land on occasion. His cattle also got over onto this tract on occasion when the fence was down. His land had been in the soil bank for eight years and he had little occasion to go there during the last ten years.

Arch Hayes testified that he had worked for T. O. Collins and Son since 1942. He worked on the place claimed by the Collinses each year until the crops were laid by. He stated that the Collinses used this land for pasture over the past 20 years. According to him the cattle could go over on this property in the summertime. He admitted that the cattle would stay off the island for some weeks at a time when the river was up in the winter.

The testimony of Woodrow Williams, also called by appellees, relates to a period from 1956 to 1960. While he endeavored to state that there was an enclosure of the land during that period, he admitted that he did not know how far north the fence on the east side ran. It is not possible to determine whether he was talking about the same fence as that Houston Butler had testified about.

Houston Butler had stated that the fence was constructed on his property and had been up and down spasmodically since the year that he built it. He located the fence as running along a riverbank somewhere between 200 and 500 feet west of the boundary between the lands claimed by the Collinses and his own land. He stated that both his cattle and that of Collins freely roamed back and forth when the river was low. According to him the fence was repaired when one owner’s cattle would cross into the crops of the other.

Even though the Collinses owned land on three sides of the disputed tract, there was no other testimony to establish an enclosure of this tract or a larger area including it. In this state, the pasturing of cattle on land without substantial enclosures or other permanent improvements is not sufficient to support a plea of limitations, especially where the livestock of others is not excluded from the land or where a part of the enclosure is on the land of others. Nall v. Phillips, 213 Ark. 92, 210 S. W. 2d 806; Dowdle v. Wheeler, 76 Ark. 529, 89 S. W. 1002.

Since the testimony shows that livestock of others was not excluded and that the fence claimed to constitute a part of an enclosure was on Houston Butler’s land, I do not see how we can say that the chancellor’s holding on appellees’ claim was against the preponderance of the evidence. Since the validity of the tax deed is not attacked, I would reverse on appeal and affirm on cross-appeal and direct the quieting of title in Harrison as against appellees.

Brown, J., joins in this dissent.

      The tax books also carried a description of “Pt NWÜ SW14” in the same section with area indicated as 25 acres, on which the Collinses had paid taxes. This description was void for indefiniteness. Clem v. Missouri Pac. R. Co., 223 Ark. 887, 269 S. W. 2d 306.

      Upon sale, the purchaser only became entitled to a certificate of purchase. Ark. Stat. Ann. § 84-1114 (Supp. 1967). The land was subject to redemption from the sale for a period of two years. Ark. Stat. Ann. § 84-1201 (Supp. 1967). Thereafter, the purchaser became entitled to a deed which conveyed title. Ark. Stat. Ann. § 84-1302 (Repl. 1960).

       See also Dierks Lumber & Coal Co. v. Carroll, 223 Ark. 424, 266 S. W. 2d 294, where the chancellor’s holding that there was adverse possession was reversed, even though there was no doubt that appellees had used the acreage for pasturage.


author: Carleton Harris, Chief Justice.

text:
    Isola L. LOUNSBERRY v. CHEROKEE VILLAGE DEVELOPMENT CO., INC. and Margaret CROSS
    5-4969
    444 S. W. 2d 876
    Opinion delivered September 29, 1969

      Sullivan & Causbie, for appellant.

      Murphy, Arnold & Blair, for appellee, Margaret Cross.
   Carleton Harris, Chief Justice.

On September 9, 1956, Isola L. Lounsberry, appellant herein, and her husband, Carl W. Lounsberry, entered into a contract with Cherokee Village Development Company, Inc., for the purchase on time of two contiguous lots in the village; subsequently, a home was constructed on the lots. On February 8, 1958, the payments to Cherokee were completed, and pursuant to tho instructions of Mr. Lounsberry to an employee of the company, George Billingsly, the deeds were prepared and, in the absence of Mrs. Lounsberry, delivered to Mr. Lounsberry, naming “Carl W. Lounsberry, a married man,” as sole grantee.

On September 24, 1966, Lounsberry died, leaving surviving him his wife, appellant herein, and Margaret Cross, a daughter of the deceased by a previous marriage, who lived in Chicago . In November, 1967, Mrs. Lounsberry instituted suit against Cherokee Village Development Company and Margaret Cross alleging that due to mutual mistake or clerical error, the deeds had been made to Mr. Lounsberry, rather than to both the husband and wife, further alleging that appellant had contributed a large part of the purchase price of the property, and asking that the deed be reformed. On January 10, .1968, Mrs. Lounsberry amended her complaint, adding the allegation that Lounsberry had obtained the execution of the deed to the lots to himself, and had defrauded appellant. Cherokee Village answered, admitting residence of the parties, and the execution of the contract but stating that it did not have sufficient knowledge or information relative to the other matters alleged to either affirm or deny; and that it had no interest in the property, and, accordingly, no interest in the question at issue. Margaret Cross answered, denying the allegations of mutual mistake or fraud, and further asserting that the purchase price was paid by her father from his own separate funds. It was also alleged that appellant knew, or should have known, of the manner in which the deed was drawn, and the prayer was that the complaint be dismissed. On hearing, the court held that appellant had not established her contentions, and the complaint was dismissed. From the decree so entered, appellant brings this appeal.

It is our view that the case must be affirmed. We have held on numerous occasions that the evidence necessary to reform a deed on grounds of mistake, fraud or mutual mistake, must be clear, cogent, and convincing. Broderick v. McRae Box Company, 138 Ark. 215, 210 S. W. 935; Flunder v. Childs, 238 Ark. 523, 382 S. W. 2d 881. Appellant first argues however that, since Cherokee Village admitted the allegations, of the complaint, there was no longer, a requirement that the evidence for reformation be clear, cogent, and convincing. We disagree for two reasons. For one, Cherokee only admitted the residence of the parties, and the fact that the contract had been entered into for the purchase of the lots. The company neither denied nor affirmed the allegations of mutual mistake or fraud, stating that it did not have sufficient knowledge. Mainly, however, we do not agree that appellee, Margaret Cross, would be bound by the admissions of Cherokee Village. Certainly, had this suit been instituted during the lifetime of Mr. Lounsberry, he would have had the right to defend against the charge of mutual mistake, or fraud, and Mrs. Cross presently stands in his shoes, and has that same right.

Appellant principally relies upon the following facts to establish her right to the relief sought:

1. She, along with her husband, signed the contract of purchase of September 9, 1956, along with a note for the balance due, and a receipt for the down payment carried the names of both Mr. Lounsberry and appellant. An agreement with Cherokee changing the property line was also executed by both parties on the same date.

2. A house was constructed on the property by Seminole Construction Company in July, 1957, and Lounsberry and appellant jointly executed a note to Seminóle for $1,761.11.

3. Several insurance policies were offered in evidence, reflecting that the property was insured in the names of both husband and wife.

This evidence is certainly pertinent to the issue at hand, and appellant asserts that these facts are very similar to those in McCollum v. Price, 213 Ark. 609, 211 S. W. 2d 895, and that the case should be controlling in the present litigation. There, W. R. Price and Pearl Price, husband and wife, had entered into a written contract to purchase a home, and a joint note and deed of trust were given to J. M. Bates, the other party to the contract. By deed, the property was subsequently convéyéd to Mrs. Price, and Mr. Price learned of this deed to his wife shortly thereafter, but took no action to correct it. After the death of Mrs. Price, her sons, by a former marriage, contended that their mother had been the owner of the home place at the time of her death, and Mr. Price had no interest in the property. This court disagreed, holding that:

“The evidence here supports the finding of the chancellor that the deed to Pearl G. Price by the vendor under the contract of purchase was procured by Mrs. Price in the absence of appellee and without his knowledge and.consent.* * *
* * #
“We think the rule announced in Roach v. Richardson, supra, is applicable here and that the written contract of sale, when considered with all the surrounding circumstances, created an equitable estate by the entirety in appellee and his wife.”

Mrs. Price had made a will in which she stated that she owned the property, and this court commented that this will was kept as a “carefully guarded secret” from Mr. Price. Another relevant circumstance in that case, which the court specifically mentioned, was that a real estate agent, who had been interested in buying the property, testified that he approached Mrs. Price about the matter, and she told him that the place belonged to her husband, and the agent would have to see him.

In the case before us, there is no testimony from “disinterested persons” that has any direct bearing on whether any fraud was committed. In fact, there is no evidence of fraud at all, and any finding to that effect would have to be based entirely on the surmise that fraud was committed simply because Mr. Lounsberry directed that the property be deeded to him. A. deed cannot be reformed on speculative evidence. There was no clerical error or mutual mistake for Billingsly, Cher okee employee, who prepared the deed, testified that he did this at the direction of Mr. Lounsberry.

Without going into detail, it definitely appears that the large part of the money used in the purchase of the lots and the building of the house was furnished by. Mr. Lounsberry, the total involved being approximately $7,500.00. Mrs. Lounsberry testified that she and her husband held a joint bank account, and she said that Mr. Lounsberry also had a separate account in a different bank. Appellant agreed that over $4,000.00 of the money spent for the lots and house came from the sale of old coins, Mr. Lounsberry being a coin collector, and she admitted that he owned a substantial amount of these coins before his marriage to her. Eleven hundred dollars ($1,100.00) was paid from the account held solely by Mr. Lounsberry. Mrs. Lounsberry further testified that she and her husband, at one time, had three safe deposit boxes at the Hardy Bank for the purpose of keeping coins, and that the deeds in question were in one of those lock boxes, designated as Box 6. She said that she had visited these lock boxes about 75 times, had been in Lock Box 6 on many occasions, and had seen the deeds in question, but had not examined them. The witness added that she and her husband had also purchased lots at Bi'smark. Missouri, and her name was on these deeds; it seems a little significant that she knew her name was on both of the Missouri deeds, but did not know that her name was not on the Cherokee deeds until after Mr. Lounsberry’s death. The Chancellor made particular comment with reference to this testimony, saying:

“I find it very difficult to reconcile the plaintiff’s contention that she knew nothing about it whereas the deed was recorded about eight years ago and lay in a lock box to which she had constant access and to which she did enter very frequently, according to the record, and I just find it very difficult to believe that.”

Since appellant also admitted that she had paid the taxes on at least two occasions, and the record clearly establishes that the property was assessed solely in the name of Carl W. Lounsberry, it does seem that she would have noticed that the tax receipts reflected his sole ownership of the property.

This is not a case of a housewife who knew nothing about business matters. Mrs. Lounsberry was a receptionist, and later a housekeeper, at the State Hospital in St. Louis for five years; prior to that time she was in sales or demonstration work in department and grocery stores. According to her testimony, she had been in sales work all of her life until she quit in 1961, and moved permanently to Sharp County to live with her husband.

We see no great significance in the fact that the insurance policies carried the names of both persons. This is not inconsistent with Mr. Lounsberry’s separate ownership of the property. Of course, appellant would have dower and homestead rights, even thought the property was not held as an estate by the entirety, and as a life tenant, she would be entitled to the use of insurance proceeds.

Mrs. Cross testified that, while she was visiting the Lounsberrys in 1959, her father told her in the presence of Mrs. Lounsberry that he would leave the property in question to the daughter. When asked what appellant said, Mrs. Cross replied:

“She said it was ridiculous: Why would I want a summer home in Arkansas when I had my own home in Franklin Park with a husband and four children; so when would we go down there? It was utterly ridiculous for him to leave it to me, because what use would I have for it.”

The witness said that Mrs. Lounsberry made no claim to the property whatsoever. This conversation was denied by Mrs. Lounsberry who said that she never heard her husband discuss the ownership of this property in the presence of Mrs. Cross.

Aside from the fact that the deeds were recorded in February, 1958, nigh onto nine years before Mr. Lounsberry’s death, and in addition to the other opportunities that appellant had to ascertain the names of the grantees in the deeds, Mrs. Lounsberry waited over a year after the death of her husband to institute suit; even then , the suit alleged either a clerical or mutual mistake in the execution of the deed, and it was not until some time later that the allegation of fraud was made.

Where parties to a lawsuit testify directly contrary to each other, the trier of the facts is in much better position to pass on the matter of credibility. The Chancellor was apparently not too impressed by appellant’s testimony, and he found that the proof offered failed “by quite a bit to measure up to that rule [clear, concise, and convincing].” We certainly cannot say that his findings are contrary to the record.

Affirmed.

       Two deeds were executed, one to each lot.

      Appellant also has a daughter by a prior marriage.

       Sometimes .characterized as “clear, convincing, unequivocal, and decisive.”

      Emphasis supplied.

       Mrs. Lounsberry testified that she had not been in the “coin business” before she met Mr. Lounsberry.

       Appellant testified that her husband spent the summers at the Sharp County home from 1957 until 1961, and she commuted from St. Louis every other weekend to be with him. She stated that he did some of the work on the house himself, but had other men come and help him.


author: George Rose Smith, Justice.

text:
    DEPOSIT GUARANTY NATIONAL BANK v. RIVER VALLEY CO., INC. et al
    5-4971
    444 S. W. 2d 880
    Opinion delivered September 29, 1969

      Arnold, Hamilton & Streetman, for appellant.

      James A. Ross and James A. Ross, Jr., for appellees.
   George Rose Smith, Justice.

This suit was brought by the appellant, a Mississippi hank, to enforce a $5,000 promissory note executed by the appellee River Valley Company and personally endorsed by its president and codefendant, the appellee Dr. A. F. Black. A few weeks before the suit was filed the bank had foreclosed in Mississippi a deed of trust securing a $21,000 note executed by River Valley only and had hid in the mortgaged property for $21,000. In the case at bar the chancellor held that the bank should have applied its bid pro rata against both notes, which would have left a balance of only $968 due on the $5,000 note. Judgment was accordingly entered for that amount. The hank contends that it is entitled to judgment for the full amount of the smaller note.

Despite a voluminous record the controlling facts are comparatively simple. In 1965 Black, a resident of Monticello, Arkansas, was the president of River Valley, an Arkansas corporation engaged in the automobile business in Greenville, Mississippi. The business was actually conducted by Black’s two sons, with such advice and assistance as Black was able to provide during visits that he made on about every Thursday.

In 1965 Black went to the appellant’s branch bank at Greenville and applied for a line of credit for River Valley. The hank, after checking Black’s financial statement, agreed to provide River Valley with credit to the amount of $6,000, the debt being evidenced by a note signed by River Valley and endorsed by Black. On December 22, 1966, Black paid $1,000 to the bank and obtained a $5,000 renewal note due March 22, 1967, which is the note now in litigation.

For more than a year the bank had been honoring drafts drawn by River Valley on Dr. Black and presented to him at Monticello. In February of 1967 there was an accumulation of about $24,000 of such drafts for which the bank had given credit to River Valley but which had not been paid by Black. The bank was concerned about the debt and demanded security.

On March 2, 1967 — twenty days before the maturity of the $5,000 renewal note — River Valley executed in Greenville a deed of trust encumbering land in Mississippi to secure River Valley’s $21,000 note to the bank. The deed of trust recited that it secured not only the $21,000 note but also “any additional indebtedness heretofore, now, or hereafter contracted with the [bank] by the grantors . . . whether such indebtedness be represented by promissory notes, open account, over-draft or otherwise.”

River Valley’s financial condition worsened to such an extent that the bank directed the trustee in its deed of trust to bring an out-of-court foreclosure proceeding in Greenville under the power of sale. As we have indicated, the bank purchased the property for $21,000, applied its bid upon the note for $21,000, plus interest, and brought this suit against Black and River Valley Upon the $5,000 note.

The bank makes three contentions for reversal. First, it insists that its motion for summary judgment should have been granted in the circuit court (to which the case was transferred briefly before being returned to chancery).. We need not discuss that contention, because the denial of the motion for summary judgment was followed by a trial on the merits. The denial of the motion is therefore not reviewable. American Physicians Ins. Co. v. Hruska, 244 Ark. 1176, 428 S. W. 2d 622 (1968).

Secondly, the bank contends that the chancellor erred in applying the law of Mississippi as a basis for holding that the $5,000 note was secured by the deed of trust under the pre-existing indebtedness clause that we have quoted. Coombs v. Wilson, 142 Miss. 502, 107 So. 874 (1926). Under Arkansas law that clause did not describe the $5,000 note with sufficient definiteness to bring it within the coverage of the deed of trust. Bank of Searcy v. Kroh, 195 Ark. 785, 114 S. W. 2d 26 (1938). The bank now insists that the Arkansas law should have been followed, because the appellees failed to give the written notice required by § 4 of the Uniform Interstate and International Procedure Act: “A party who intends to raise an issue concerning the law of any jurisdiction or governmental unit thereof outside this State shall give notice in his pleadings or other reasonable written notice.” Ark. Stat. Ann. § 27-2504 (Supp. 1967).

We have considered that statute in two earlier cases. In the Hruska case, supra, the plaintiffs relied upon the law of Missouri in their pleadings, but the defendant failed to plead its contention that the law of Louisiana was controlling. We held that in that situation the trial court correctly submitted the case to the jury under Missouri law. In the other case, American Aviation v. Aviation Ins. Managers, 244 Ark. 829, 427 S. W. 2d 544 (1968), we cited the statute in a footnote, without discussion, in holding the Arkansas law to be applicable.

Neither of those cases laid down a rigid rule requiring a party to assert his reliance upon foreign law at any particular point in the litigation. In fact, such an interpretation would not be in harmony with the purpose of the Uniform Act, which was to make it easier —not harder — for a party to rely upon the law of another jurisdiction. The Commissioners point out in their note to § 3 of the Act that it is intended to change the rule prevailing in many states, that a court may not even consider foreign law unless it has been pleaded. The statute substitutes a rule of reasonable notice only. On this point the Commissioners went on to say: “Any reasonable written notice will suffice. . . The court must exercise discretion in determining the proper timing of the notice in the light of the requirements of the case and fairness to the parties. The section does not attempt to prohibit the raising of an issue of foreign law after any particular point in the litigation. In exceptional situations, the issues may not become apparent until during or even after the trial, and, in appropriate cases, the notice may be given at that time.” 9B U. L. A. 329 (1966).

In the case at bar we find that reasonable notice was given. In this court counsel for both sides state that the case was submitted to the chancellor on trial briefs. Indeed, the appellees’ brief here asserts without contradiction that the chancellor requested briefs on the law of Mississippi. Such briefs were manifestly submitted, because the chancellor’s written findings discussed the Mississippi cases at length and rested the court’s conclusions upon the law of that State. Those findings were filed in the clerk’s office on November 5, 1968. Á decree pursuant to those findings was prepared by counsel for the prevailing side, approved by opposing counsel, and entered by the court on November 26. Thus the bank had a period of three weeks after the chancellor’s announcement of his findings to assert any claim it might have had that the debtors ’ failure to give written notice of their reliance upon the law of Mississippi had unfairly taken the bank by surprise. No such claim was asserted, doubtless because it was understood by all concerned that a note and deed of trust executed in Mississippi, payable in Mississippi, and secured by land in Mississippi, would be governed by the law of that State. To sustain the appellant’s present argument would allow it to raise the issue for the first time on appeal.

Finally, the bank argues that the chancellor should not have applied the bank’s bid pro rata to both notes. It is said that inasmuch as the debtors did not direct the application of the bid the creditor was entitled to apply it as the creditor saw fit. Under Mississippi law, however, proration is the proper procedure when the payment is an involuntary one resulting from a foreclosure rather than a voluntary one made at the debtor’s free will. Cage v. Iler, 13 Miss. 410, 43 Am. Dec. 521 (1845). Nor do we find merit in the appellant’s insistence that the appellees waived their right to proration by their failure to plead it. The matter was covered by the proof, was presumably argued in the trial briefs-, and was explicitly discussed by the chancellor in his findings. Absent any plea of surprise — and no such plea was made — the court could properly treat the pleadings as amended to conform to the proof. Nance v. Eiland, 213 Ark. 1019, 214 S. W. 2d 217 (1948).

Affirmed.


text:
    ARKANSAS STATE HIGHWAY COMM’N v. Silas R. STOBAUGH et ux
    5-4989
    445 S. W. 2d 511
    Opinion delivered September 29, 1969
    [Rehearing denied November 3, 1969]

      Thomas R. Keys, Philip N. Gowen and Hubert E. Graves, for appellant.

      Gordon, Gordon & Eddy, for appellees.
   George Rose Smith, Justice.

In this proceeding the highway department is condemning, for Interstate 40, part of the appellees’ improved residential lot in the city of Plumerville. The jury fixed the landowners’ compensation at $8,000. In this court the department contends that there is no substantial evidence to support the verdict.

The taking cuts diagonally across the lot, coming within about a foot of the front corner of the house. Stobaugh valued the property at $18,000 before the taking and at $6,000 after the taking. The highway department does not question the latter figure, which is only a few hundred dollars above the corresponding figure given by the appellant’s expert witnesses.

The department does contend that Stobaugh’s initial valuation of $18,000 does not amount to substantial testimony. Stobaugh testified that he had owned and occupied the lot for about fifty years and that he had spent about $8,000 in enlarging and improving the house some six years before the trial. In view of his long familiarity with the property Stobaugh was competent, by reason of being the landowner, to give his opinion about the value of the property. Arkansas State Highway Comm’n v. Russell, 240 Ark. 21, 398 S. W. 2d 201 (1966).

Of course, it is true, as pointed out in that case, that the landowner’s evaluation must be disregarded if he is unable on cross examination to give a reasonable basis for his opinion. In the case at bar, however, counsel for the highway department did not pursue their cross examination far enough to demonstrate that Stobaugh had no reasonable basis for his conclusions. ¡Stobaugh mentioned what may have been a comparable sale, in which a house and lot was sold for $20,000. He also stated on redirect examination that he based his opinion on sales that he knew about in the city of Plumerville. Counsel for the condemnor made no effort to discredit the witness’ testimony by probing further into the basis for his beliefs. Hence the prima facie admissibility of the landowner’s opinion was not destroyed on cross examination. His testimony is sufficient to support the verdict.

Affirmed.


author: Lyle Brown, Justice.

text:
    Marvin GRISSOM v. STATE of Arkansas
    5439
    444 S. W. 2d 871
    Opinion delivered September 29, 1969

      Bryan J. McCallen,. for appellant.

      Joe Purcell, Attorney General; Don Langston, Asst. Atty. Gen., for appellee.
   Lyle Brown, Justice.

This is a post-conviction appeal brought under our Criminal Procedure Rule 1. Appellant Marvin Grissom was convicted of assault with intent to kill a small child. After being committed to the penitentiary Grissom filed this proceeding, alleging in two respects violations of his constitutional rights committed- prior to and during the course of the trial. They relate to an asserted unlawful arrest and an attack on certain jurors as being prejudiced against him.

Under his first point for reversal, appellant makes two arguments. First,' he says his arrest was unlawful and in violation of his constitutional rights. He was initially arrested on a misdemeanor warrant issued by a justice of the peace charging Grissom with abusing a minor child. After further investigation and three days later, while the accused was in jail on the misdemeanor charge, he was served with a warrant for assault with intent to kill and with respect to the same incident. 'Secondly, appellant complains that during the three-day interval he was not afforded the opportunity to make bail. From the recited allegations appellant draws the bare conclusion that he should be afforded a new trial.

Each of the arrests was made by virtue of a warrant, the validity of which is not questioned; nor does appellant attempt to show any connection between the three days in jail and his trial, that is, such a connection as would establish prejudice in the trial procedure. Irrespective of the contention made, appellant subsequently made bail, appeared in court, submitted himself to its jurisdiction without protest, and announced ready for trial. The point has no merit.

The second point advanced for reversal is the allegation that some of the jurors were prejudiced against the defendant. The voir dire examination of the jury panel was made a part of the record in the Rule 1 hearing; that record shows eight pages of exhaustive questioning of the panel. Most of the questions were propounded by the trial judge and they reflect a thorough line of questioning which was framed to reveal any prejudice against the defendant or members of his family which might have been grounds for excusing disqualified persons from serving. The defendant was represented by chosen and experienced counsel who questioned the jury and was satisfied with their answers because he exercised no peremptory challenges. Appellant’s testimony on this point was based purely on hearsay. Additionally, three jurors called by defendant to testify at the Rule 1 hearing refuted Grissom’s contention. Appellant’s father also testified at the hearing and he did not corroborate appellant on this point, notwithstanding he was said to have firsthand information as to the possible disqualification of one juror.

Affirmed.

Fogleman, J., not participating.


text:
    Mrs. Vada SKIPPER et al v. Tom HOSKINS
    5-4950
    444 S. W. 2d 875
    Opinion delivered September 29, 1969

      E. J. Ball, James W. Gallman and John Lineberger, for appellants.
    No brief for appellee.
   Lyle Brown, Justice.

The trial court awarded piaintiff-appellee a money judgment for clearing operations on land belonging to appellant Vada Skipper. A lien was imposed on the lands for the judgment on the theory that, although Mrs. Skipper did not agree to pay for the work, she permitted it to be done. The court awarded a personal judgment against Mrs. Skipper’s tenants, appellants Ed Flemming and wife, finding that the tenants personally contracted for the labor. Mrs. Skipper asserts error in the fixing of the lien, contending that the clearing of brush and trees does not bring the contractor within the mechanics’ and materialmen’s lien statute. The Flemmings challenge the personal judgment on the grounds that the work was done in a shoddy manner, that it was abandoned before completion, and therefore was of no benefit to them.

Mrs. Skipper is correct in asserting that the law gives no lien to the dozer contractor, Hoskins. We so held in a recent case concerning identical work by a contractor. Lambert v. Newman, 245 Ark. 125, 431 S. W. 2d 480. There we said the work constituted improvements to lands, rather than upon lands, and therefore did not come within the lien statute, Ark. Stat. Ann. § 51-601 (1947).

This brings us to the only other point in the case, that is, whether the Flemmings are liable. Mrs. Skipper owned sixty-eight acres in Washington County on which were located two homes. She resided in one of them and her daughter, Mrs. Flemming, her husband and four children, lived in the other. It is not disputed that the Flemmings fairly treated forty acres of the land as their own and with the approval of Mrs. Skipper, Hoskins contended that he agreed to clear that forty acres for $12.50 per acre, to be paid in installments by the three appellants; that appellants paid nothing after some fifteen acres had been cleared; and that because of the delinquency appellee withdrew from the job. Appellants asserted that Mrs. Skipper merely gave her consent for the work to be done and specified that she would not be responsible for the cost; that the Flemmings complained all during the progress of the work that it was unsatisfactory; that the first payment was not due until completion of the project; and that Hoskins abandoned the job without just cause, leaving the property in such condition as to cause the improvements by Hoskins to be of no benefit to them.

The court found that Hoskins had performed seventy-five hours of work for a total of $937.50; however, a penalty was imposed on Hoskins for items of inferior work in the amount of $150; and judgment was entered for the difference. The court considered the Flemmings’ allegation that the work was of no benefit. We perceive that the contention, under disputed facts, was found to be without merit; otherwise, the court would not have held the Flemmings liable for the work performed. We cannot say the findings of the chancellor were against the preponderance of the evidence.

The judgment is reversed with respect to the lien and is affirmed as regards the personal judgment against the Flemmings for $787.50.

      Section 51-601 was amended by Act 122 of 1969. The stated purpose of the amendment was to make improvements to land lien-able. The decision in Lambert was controlling at the time of this litigation.