author: Ed. F. McFaddiN, Associate Justice.

text:
    Goff-McNair Motor Company, Inc. v. Phillips Motor Company, Inc.
    5-994
    294 S. W. 2d 342
    Opinion delivered October 8, 1956.
    [Rehearing denied November 12, 1956.]

      Bex W. Perkins and E. J. Ball, for appellant.

      Price Dickson and W. B. Putman, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This is a contest as to. priority between (a) the holder of a retained title on a motor vehicle and (b) a mechanic who worked on the vehicle. The controversy involves the effect of § 75-160 and § 75-161 Ark. Stats, on § 51-412 Ark. Stats.

In 1953 Goff-McNair Motor Company, Inc. (hereinafter called “Goff-McNair”) sold an automobile to Tom Laney and duly retained title for the unpaid purchase money. The car was damaged in a collision in January, 1954 and Laney had Phillips Motor Company, Inc. (hereinafter called “Phillips”) make necessary repairs to the extent of $135.92, which is the lien claim of Phillips. On February 11, 1954, Laney obtained possession of the car without Phillips’ knowledge or consent; and on February 17, 1954, Phillips filed its mechanic’s lien claim in the Circuit Clerk’s Office, in accordance with § 51-401 et seq. Ark. Stats. A few days later, Goff-McNair — under its title contract — repossessed the car from Laney for the delinquent balance of $480.44 due on the title retaining contract. Phillips filed suit in the Chancery Court to enforce its mechanic’s lien, which it claimed to be superior to the title retaining contract held by Goff-McNair. The Chancery Court decided for Phillips; and the case is here on appeal.

We conclude that the holding of the learned Chancery Court was erroneous because it failed to give full effect to § 51-412 Ark. Stats, and our holdings in the cases of Powell v. Pacific Finance Corp., 216 Ark. 884, 227 S. W. 2d 965; and Terrell v. Loomis, 218 Ark. 296, 235 S. W. 2d 961. The said Statute and cases definitely state that the rights of the holder of a retained title (as was Goff-McNair in the case at bar) are superior to the rights of the one (as Phillips here) claiming under the mechanic’s lien law.

To overcome the aforesaid Statute and cases, the ap-pellee says: (a) that possession was wrongfully obtained from Phillips so that the case is to be determined as if Phillips still had possession of the car; and (b) that Phillips’ possession makes such rights superior to those of Goff-McNair because of § 75-160 et seq. Ark. Stats.

Eegardless of the first contention of Phillips, we conclude that Phillips is in error in its second contention. Section 75-160 Ark. Stats, is a portion of Act No. 142 of 1949, which is an Act relating to motor vehicles and providing, inter alia, for the issuance of certificates of title thereto. It is not an Act creating new liens for mechanics; hut rather prescribing how rights and titles might be protected by possession or filing for recordation. The language in Sections 75-160 and 75-161, relating to “possession” was to show how liens could be preserved, and was not to create new liens by mere possession. Even if Phillips had all the time retained possession of the car, we conclude that the title of Goff-McNair under § 51-412 Ark. Stats, would be superior to Phillips ’ mechanic’s lien. The cases of Powell v. Pacific Finance Co. and Terrell v. Loomis (supra) support this conclusion.

The decree of the Chancery Court is reversed and the cause is remanded, with directions to enter a decree in favor of Goff-McNair.

       It is not claimed that Goff-McNair initially failed to duly retain title to the car.

       The repossession was by a finance company then holding the title contract and note, but the finance company delivered the note, contract and car to Goff-McNair on being compensated for the note.

       The pertinent language of § 75-161 Ark. Stats, is: “. . . except such liens ... as may be authorized by law dependent upon possession. . . . ”


source: Caselaw Access Project

author: MiNor W. Millwee, Associate Justice.

license: Public Domain

text:
    Jackson, Executor v. Bowman, Guardian.
    5-1009
    294 S. W. 2d 344
    Opinion delivered October 8, 1956.
    [Rehearing denied November 12, 1956.]

      A. M. Coates and John C. Sheffield, for appellant.

      David Solomon, Jr., and D. S. Heslep, for appellee.
   MiNor W. Millwee, Associate Justice.

This is a suit by an insane widow to set aside a decree of divorce granted her Inisliand shortly before his death in January, 1954.

W. T. Jackson and Arwilda Bowman were married May 12, 1931 in Phillips County, Arkansas, where they lived together until she became mentally incompetent and was committed to the State Hospital on March 31, 1937. Jackson was duly appointed and served as guardian of his wife’s person and estate until shortly before his death at the age of 72 and no children were born to the marriage. W. T. Jackson was a farmer and owned lands jointly with his brother, C. J. Jackson, in whose home he lived for several years prior to his own marriage. After his wife was committed to the State Hospital he continued to reside in his own home and carry on his farming operations until July, 1953, when he-became ill and was removed to the home' of his brother, C. J. Jackson, in West Helena, Arkansas. His physician testified that he was then suffering from “cerebral arteriosclerosis” and “senile dementia’’-and was mentally incapacitated bnt perhaps had lucid intervals.

Upon moving to the C. J. Jackson home, and prior thereto, legal advice was sought to effect some arrangement whereby all of W. T. Jackson’s property at his death would go to his brother and none to his insane wife, or her people, except that she would be properly maintained the balance of her life. On July 21, 1953, W. T. Jackson filed suit for divorce on the ground of incurable insanity of his wife. Although the appointment of a guardian ad litem for the insane wife was asked for in the complaint none was appointed and no pleadings were filed in her behalf. A summons for Ar-wilda Jackson directed to the sheriff of Pulaski County was served upon the superintendent of the State Hospital. On October 23, 1953, the depositions of the superintendent and another physician at the hospital were taken to the effect that Arwilda Jackson was permanently insane and that the estimated cost of her maintenance at the hospital was $45 monthly.

On July 30, 1953,'W. T. Jackson executed a will by mark leaving all his property to his brother, C. J. Jackson, on condition that the latter, or his heirs, make proper provision for the maintenance of Arwilda Jackson as long as she lived. On August 1,1953, W. T. Jackson was taken to a hospital in Memphis, Tenn., where he remained three days and an attending physician was of the opinion that he was then mentally incompetent.

On December 3, 1953, a decree was entered in the divorce suit brought by W. T. Jackson granting him a divorce on the ground of incurable insanity of his wife and directing him to pay the State Hospital $45 monthly for her support and maintenance. On December 28,1953, C. J. Jackson filed a petition in the Phillips Probate Court seeking his appointment as guardian of the person and estate of W. T. Jackson due to the latter’s mental incompetency and the petition was granted on January 4,1954. The bond of C. J. Jackson as such guardian was dated December 4,1953. W. T. Jackson died January 30, 1954.

Ardelia Bowman, a niece of Arwilda Jackson, filed a petition in the Phillips Probate Court on February 22, 1954, asking that she be appointed guardian of the person and estate of her aunt and the petition was granted, after due notice, on March 8, 1954. The instant suit to set aside the divorce decree entered December 3, 1953, was then filed by Ardelia Bowman as such guardian on March 10, 1954. The verified petition alleged invalidity of the divorce decree because no guardian ad litem was appointed for the insane defendant and the testimony of a Phillips County physician was not produced as required by statute. It was further alleged that W. T. Jackson was himself insane and such fact concealed from the court when the decree was entered and that the defendant wife, therefore, had a meritorious defense to the suit. A copy of the verified petition was served on the attorney of record for W. T. Jackson and upon appellant, C. J. Jackson, as executor of the estate of his deceased brother.

After motions to quash service and dismiss the guardian’s petition to set aside the divorce decree were filed by appellant, as executor, and overruled by the trial court, a response was filed in which the allegations of the petition were denied. The court’s jurisdiction to entertain the suit was also challenged because of the lapse of the term in which the decree was rendered, and it was alleged that the divorce proceedings were ‘ ‘ in substantial compliance with the statutes. ’ ’ Trial resulted in the entrance of a decree on September 28, 1955, setting aside and vacating the divorce decree of December 3, 1953. In said decree the court found:

“1. That the petition to vacate and set aside the decree of this Court of December 3, 1953 wherein W. T. Jackson was granted a divorce from the defendant, Ar-wilda Jackson should be granted as the same is voidable if not absolutely void for the reason that the defendant Arwilda Jackson at the time the suit was filed, and for many years prior thereto, and was on December 3, 1953, when the decree of divorce was granted, an incurable and permanently insane person, and that a guardian ad litem was not appointed by the Court for the said insane defendant to defend said cause on her behalf.
“2. That the trial on December 3, 1953 was in effect an ex parte proceeding in that no defense of any kind was made for the incompetent defendant, Arwilda Jackson, although the plaintiff, W. T. Jackson, at that time was her legal guardian; that even though service of summons was had, upon the Superintendent of the State Hospital, where the defendant was confined and had been confined for many years, the defendant had no guardian ad litem appointed by the court to defend the action for her and the decree was entered against the defendant as though by default.”

Appellant first contends the chancellor erred in refusing to quash the service of process in the instant suit which was had by serving copies of the petition upon him as executor of his deceased brother’s estate and also upon the attorney of record for W. T. Jackson in the divorce proceedings. On this point appellant argues that, as executor, he had no interest in the divorce suit by his brother and that proceedings to vacate a divorce decree simply will not lie after the death of one of the parties. This presents an interesting question upon which there appears to be some division of authority. There is considerable support, especially in earlier cases, for the broad rule that the courts have no power to vacate a default judgment or decree of divorce after the death of the plaintiff. However the weight of authority, and all the later cases, support the general rule that the court has the power to set aside a default decree of divorce even after the death of one of the parties in a proceeding instituted by the survivor, if property interests of the survivor are affected by the default decree. 17 Am. Jur., Divorce and Separation, Sec. 462; 157 A. L. R. 53; 22 A. L. R. 2d 1323. "We concur in this view. The property interests of the insane survivor here are vitally affected by the default decree. Also the service upon C. J. Jackson, who was executor of the estate of W. T. Jack.son and apparently Ms sole heir at law/ and- upon the attorney of record for W. T. Jackson in the original divorce action, constituted sufficient and proper notice to allow the trial court to act on the motion to vacate. This was the effect of our holding in State v. West, 160 Ark. 413, 254 S. W. 828.

The next contention for reversal is that the trial court lost jurisdiction to hear the instant suit upon the expiration of the term at which the challenged decree was rendered. Appellant relies upon Dobbs v. Dobbs, 225 Ark. 397, 282 S. W. 2d 812. We there held that the court’s inherent discretionary power to grant a motion to set aside a default divorce decree filed during the same term of the court ended with the lapse of the term, in the absence of sufficient proof of a ground to vacate it under the statute applicable after the expiration of the term. Ark. Stats. Sec. 29-506. So here, the principal issue is whether appellee has made a case for vacation of the 1953 divorce decree under said statute. In this connection we. have held that a judgment by default may be set aside under the 7th subdivision of Sec. 29-506, supra, where the defendant was not served with summons. This subdivision of the statute authorizes the vacation of a judgment for “unavoidable casualty or misfortune preventing the party from appearing or defending.” See Jermany v. Hartsell, 214 Ark. 407, 216 S. W. 2d 381, and cases there cited.

The 1953 divorce suit was instituted by W. T. Jackson on the ground of three years separation, without cohabitation, by reason of the incurable insanity of his wife under the 8th subdivision of Ark. Stats. Sec. 34-1202, which provides for service of process upon the duly appointed and acting guardian of the insane spouse, or upon a duly appointed guardian ad litem for such insane spouse, and upon the superintendent or physician in charge of the institution where the insane spouse is confined. Statutes like this are strictly construed. 17 Am. Jur., Divorce and Separation, Sec. 152., It is also provided in Ark. Stats. Sec. 27-830 that the defense of an action against a person adjudged to be insane must be by Ms regularly appointed' guardian, or a guardian ad •litem, and that no judgment can be rendered against Mm until after a defense by one or tbe other. Sec. 27-826 also prohibits the appointment of a party to such an action as guardian ad litem to defend for the insane defendant. W. T. Jackson was the duly appointed guardian of his insane wife when he filed the suit and no guardian ad litem was appointed to defend for her. In this situation the statute clearly contemplated service upon both the superintendent of the State Hospital and a guardian ad litem. The fact that the insane wife was not represented by a guardian ad litem upon whom service could be had rendered the decree against her voidable and subject to direct attack on the ground of unavoidable casualty under Sec. 29-506, supra. While appellee’s verified complaint did not specifically plead an unavoidable casualty, the facts alleged and proved brought the instant proceedings clearly within the purview of that subdivision of the statute.

We are also of the opinion that appellee alleged and proved a meritorious defense to the 1953 divorce action in that W. T. Jackson was himself mentally incompetent at the time he filed the suit. In the absence of a statute so authorizing it, it is the general rule that an insane person cannot institute an action for divorce since the right to do so is regarded as strictly personal to the aggrieved spouse and no matrimonial offenses automatically effect a dissolution of the marriage. See cases cited in an annotation on the question in 19 A. L. R. 2d 182. Other annotations to the same effect are found in 70 A. L. R. 964 and 149 A. L. R. 1284. In addition to the medical testimony already referred to, there are numerous facts and circumstances which indicate that W. T. Jackson was incompetent and incapable of exercising a proper or intelligent discretion in such a delicate and purely personal matter either at the time of the institution of the suit or the rendition of the default decree.

Neither do we agree with appellant’s final contention that appellee acted in bad faith and from a purely selfish motive in maintaining, the instant suit. The interest: of the insane widow in the property of her deceased husband as well as in lands owned by her separately fully warranted the guardianship and maintenance of the instant suit which was duly authorized by the Phillips Probate Court. It follows that the chancellor’s action in vacating the divorce decree of December 3, 1953 is correct, and the decree is accordingly affirmed.


author: Paul Ward, Associate Justice.

text:
    Carter v. Oslin.
    5-985
    293 S. W. 2d 890
    Opinion delivered October 8, 1956.

      Paul K. Roberts, for appellant.

      D. A. Clarke and C. T. Sims, for appellee.
   Paul Ward, Associate Justice.

This litigation began when appellant, Ed Carter, filed a petition in the Chan-eery Court of Drew County to force appellee, E. A. Oslin, to permit him the use of a lane which ran east from appellant’s land across forty acres of land belonging to appellee. Appellant’s contention was that he had an agreement with appellee that he could use the lane in lieu of using an old road which ran through the middle of the forty.

After a lengthy hearing the chancellor made numerous findings of fact in favor of appellant but refused to grant the relief prayed for, for one particular reason, wherein we think the chancellor fell into error, calling for a reversal. This will be discussed later.

Since we agree with all of the findings and conclusions of the chancellor except in the one instance noted above, we deem it unnecessary to set forth the testimony in detail.

The factual situation presenting the issue here to be decided can be briefly and summarily stated. Appellant is a part owner and in control of eighty acres of land on which he lives, and he also partly owns and controls a tract of pasture land which lies approximately a mile and a quarter south and slightly to the east. For many years appellant used an old prescription road, hereafter called the Old Road, largely for the purpose of driving his cattle to the open range and to his pasture land, which Old Road ran east approximately through the middle of a forty acre tract of land adjoining on the east and thence a short distance to a county road which runs north and south.

In 1940 or 1941 appellee bought the forty acres of land mentioned above together with other land lying south of appellant’s homestead. Soon after appellee bought this land he placed a fence around the said forty but left gates where the Old Road intersected the east and west boundaries. Appellee maintained said fence and gates for a period of more than seven years and still so maintains them. However he allowed appellant to continue the use of the Old Road until about the year 1954 when, as appellant contends, the agreement referred to above was made.

There are some other matters covered by the pleadings and testimony which we think need to be mentioned only briefly. Old Road No. 4 runs in a northeasterly and: southwesterly direction across appellant’s eighty acres and also across appellee’s land lying to the south. It appears from the testimony that this road is not usable during certain seasons of the year particularly because it crosses certain streams and the bridges are in a state of disrepair. Appellant built a cattle guard across this road to which appellee objects, but the chancellor held, and we think properly so, that this cattle guard was sufficient and need not be removed. Appellant it seems had placed certain obstructions in this road which the chancellor correctly ordered him to remove. In our opinion the chancellor correctly held also that this particular road had been practically abandoned by the public but that it could possibly be used in the future.

In a carefully prepared statement the chancellor found that the- public had lost all right to use the Old Road mentioned above because appellee had maintained the fence and gates' for a period of more than seven years; he found that some time in 1954 there was an agreement reached by the appellant and appellee • that appellant would help erect fences for a lane leading from the southeast corner of his homestead and running along the south portion of appellee’s forty acre tract and that appellant, in lieu of using the Old Road, could use the lane as a passage way for his cattle, and; that appellant’s relinquishment of the right to use the Old Road constituted the necessary consideration for appellee’s agreement to allow him to use the lane. The chancellor also .found that appellant’s right to use the lane was personal to him and that it would not constitute an easement on appellant’s land. In our opinion the testimony fully justifies the findings of the chancellor, however we will later refer to the testimony establishing the agreement.

After making the above findings in favor of appellant, the chancellor refused the relief prayed for by ap--pellant. This conclusion, rested on a single point of law,' and we think the chancellor fell into error. Although the chancellor was convinced that an agreement regard-.-ing the lane was reached by the parties and was convinced that the consideration for this agreement was adequate, he took the view that appellant’s right to use the lane as a passage way was subject to be terminated at any time by appellee, consequently holding that appellee had a right to place gates at each end of the lane and refuse to allow appellant to use the same.

We think this case is controlled largely by Chaney v. Martin, 205 Ark. 962, 171 S. W. 2d 961. The issue and the facts in the two cases are very similar. In the cited case Martin, like appellant here, had used a prescription right of way which he gave up for the use of a new passage way provided by Chaney. In resolving the issue in favor of Chaney this court said:

“We do not deem it necessary to decide whether the proof in this case justified the finding that appellee had acquired by prescription an easement along the old route used by him in crossing appellant’s land. Regardless of whether appellee had acquired such right, it is shown by the evidence that appellant recognized this right to the extent that he provided for appellee a new right-of-way across his land, and the evidence further shows that ap-pellee accepted this new route and used it for several months. Appellee thereby surrendered any prescriptive right to use the old route that he might have possessed. This exchange of routes, accompanied by surrender of the old route and acceptance and continued use of the new route by appellee, as was shown by the evidence in this case, was effective, even in absence of any writing to evidence the agreement. ‘An oral grant (of an easement) will be upheld where it is accompanied by consideration, action in reliance on the grant, and by the grantee’s being permitted the-granted use.’ ”

It may be noted also that in the present case there is an element of consideration on the part of appellant that did not exist in the cited case, for here Carter donated his time and labor to help provide the lane.

All the, testimony^ facts: and circumstances convince us. that it.was not-the.intention of the parties in this-case that appellee would have the right, to. stop-appellant from the use of the lane at any time he desired, and it is sure that appellee makes no such contention. It is unreasonable to believe that appellant would have given up the right of way he had and contribute his time and labor in erecting fences if he knew or thought appellee could revoke the agreement at his whim. It is the more reasonable view that the parties construed the agreement at the time as giving appellant the right to use the lane as long as it was needed by appellant, and the construction placed on the agreement at that time must be given to it now. See Continental Insurance Company v. Harris, 190 Ark. 1110, 82 S. W. 2d 841. When appellant was asked if he and Mr. Oslin had any time limit on how long the lane could be used, he replied: ‘.‘We put the lane through there. It was supposed to be indefinite.”

Appellee, however, strongly denies that he made any agreement with appellant to allow him to use the lane instead of using the Old Road mentioned above. We have carefully reviewed this testimony and we think it supports the chancellor’s finding that such an agreement was reached. Appellant says positively that he and Mr. Lassiter, a renter on Oslin’s place, had such an agreement with appellee, that he talked with Oslin personally about it and that Oslin made the agreement. Lassiter corroborates appellant in all respects except that he says he did not know how long the agreement was to run. It is not disputed that appellant and Lassiter did furnish their time and labor, that the fences for the lane were actually built, that Oslin knew about it, and that Oslin permitted the appellant and Lassiter to use the lane for the intended purpose for some seven or eight months — until Lassiter moved off Oslin’s farm.

Appellant’s brief in this case contains only an abstract of the pleadings and the findings and conclusion of the chancellor and asks this court for a reversal on the ground that the chancellor made a misapplication of the law. As was quoted with approval in the case of Mount v. Dillon, 200 Ark. 153, 138 S. W. 2d 59, “. . . a judgment cannot be supported by conclusions of law inconsistent with the facts found, and the findings of fact will prevail over conclusions of law.”

We mention tlie above because appellee requests us to charge appellant with the cost of printing 79 pages of abstracted testimony in accordance with the provisions of Rule 9 (e) of this court. It is our opinion that this request should not be granted for the reason that it was not necessary for appellant to include in his abstract this additional testimony. In appellant’s Notice of Appeal he states: “Plaintiff does not appeal from any finding of fact made by the court.” Nor did he include any testimony in his “Designation of Contents.” Appellee was the one who designated the testimony.

In accordamce with what has heretofore been said, the decree of the trial court is reversed on the point indicated and the case is remanded with direction to enter an order compelling appellee to move the obstructions from the lane in question and to permit appellant to use the same for the passage of his cattle. In all other respects the decree of the chancellor is affirmed.


author: Sam RobiNSON, Associate Justice.

text:
    Perkins v. Perkins.
    5-1020
    293 S. W. 2d 889
    Opinion delivered October 8, 1956.

      Claude E. Love, for appellant.

      L. B. Smead and Robert C. Compton, for appellee.
   Sam RobiNSON, Associate Justice.

Tlie parties were formerly husband and wife, .and this is a contest between them over the custody of their son, Keith Randall Perkins, now about five years of age. The chancellor granted custody to the mother, and the father has appealed.

The appellant, James H. Perkins, and appellee, Wilma Faye Perkins, were married in 1946; their son was born in 1951. James went into the Army while they were living in Dallas, Texas, and at a time when he was stationed in Korea it was agreed that Wilma would join him, and that Mr. and Mrs. W. H. Perkins, the parents of appellant, would keep the child for the parties. The child was turned over to appellant’s parents in August 1953, but Wilma did not go to Korea. Later, Wilma and James became estranged, and on November 1, 1954, he filed suit for divorce in the Union Chancery Court. While Wilma was still living at Dallas, she agreed that James should have custody of the child. However, the record is convincing that she understood the agreement to be that he was to have temporary custody only. She was not working at the time, and James was sending her no money whatever; hence, she was in no position to care for the child. James was granted an uncontested divorce on the grounds of desertion and awarded custody of the child on November 19, 1954. Subsequently, Wilma visited the child monthly, and traveled about 600 miles each trip to do it. On August 25, 1955, she filed a petition asking that she be granted custody of the child. Her petition was granted, and James H. Perkins has appealed.

It is appellant’s contention, first, that there has been no change in conditions which would warrant a change in custody; and, second, that appellee agreed prior to the decree of the divorce that appellant should have custody of the child, and that ties of love and affection have developed between the child and his grandparents which should not be disturbed.

We cannot say the chancellor was in error in granting the mother the custody of the child. There is nothing in the record indicating that the mother is not a proper person for the care and custody of her little boy. Moreover, slie is a highly intelligent and capable person. She has a good job where she earns $325 a month, with a bonus at Christmas-time equal to one month’s pay. She is well situated in Dallas to care for her son. Likewise, it appears that the child’s grandparents, with whom he lives, are good people and have a good home, and are giving the child proper care and attention; but, custody of the child was not awarded to the grandparents in the first instance. The father was granted custody, however he is not in a position to have the child with him; he is in the Army and may be transferred from place to place on a moment’s notice; he is unmarried, and if he should marry again it is entirely possible that his new wife might not welcome the little boy.

It is true that there are ties of love and affection between the child and his grandparents. But, it is a matter of common knowledge that usually there is no love like a mother’s love; this is a law of nature that is almost invariable, and unless there are compelling reasons for giving some one other than the mother custody of a small child, it should not be done. Here undoubtedly, the mother loves her little *son with all her heart, and there is no good reason why she should not have custody of him. At the time the decree was rendered granting the father a divorce and giving him custody of the child, the mother had no income and was not situated so that she could care for the child. But now, she has an income of $325 per ‘month which enables her to maintain a comfortable home, and with the money the father must pay for support of the child, as ordered by the court or may be hereafter ordered in accordance with the circumstances of the parties, the little boy will have a good home with his mother, and this is as it should be.

Affirmed.

Mr. Justice McFaddi» concurs.


author: Lee Seamster, Chief Justice.

text:
    Crowly v. Thornbrough, Commissioner of Labor.
    5-1113
    294 S. W. 2d 62
    Opinion delivered October 15, 1956

      Mehdffy, Smith & Williams and B. 8, Clark, for appellant.

      Tom■ Gentry, Attorney General, Roy Finch, Asst. Atty. General, for intervenor.
   Lee Seamster, Chief Justice.

The appellant, J. C. Crowly, proceeding as a taxpayer, instituted this suit in the Pulaski Circuit Court, Third Division. The complaint was filed pursuant to Act 274 of 1953, praying for a declaratory judgment and asking that the court enter a holding that Act 115 of 1955, is unconstitutional and void in violation of the constitutional rights of the appellant and other taxpayers similarly situated.

Tlie appellants’ complaint alleged that Act 115 of 1955 was nnconstitntional and void due to the following reasons:

“(a) It delegates legislative power to the Commissioner contrary to and in violation of the Constitution of the State of Arkansas, particularly Article 5, Section 1, as amended by Amendment No. 7, and Article 4, Sections 1 and 2; and Article 1, Section 1 of the Constitution of the United States, in the following instances:
“ (1) It adopts as a standard the minimum prevailing wage scales as determined and as will he determined in the future by the Secretary of Labor of the United States thereby making the operation of the Act subject to future federal administrative ruling.
“(2) It is incomplete in that the adoption of the minimum prevailing wage scales as determined and to be determined in the future by the Secretary of Labor of the United States affords no adequate standard to guide the Commissioner and leaves the Commissioner as the sole determinant of its extent and operation.
“ (b) It violates Article 2, Section 18, Article 2, Section 3, and Amendment 14 of the Arkansas Constitution; and the Fourteenth Amendment to the Constitution of the United States in the following instances:
“ (1) Section 3 exempts ‘highways, and streets and/ or bridge construction, ’ thereby favoring this type of construction over other types and creates an arbitrary and unreasonable classification which is discriminatory in effect.
“(2) The Secretary of Labor of the United States only determines the prevailing wage rate for areas in which a federal project is contemplated. Consequently, the Act discriminates as to those areas in which the Secretary of Labor has made no determination. Moreover, many of the determinations made by the Secretary of Labor in Arkansas are out of date and the operation of the Act would discriminate as to these areas.
“(3) Section 1 insofar as it provides that the minimum wage shall be based on the prevailing wages for corresponding classes of laborers and mechanics employed on ‘projects of a character similar to the contract work in the particular area in which the work is performed’ is vague and uncertain because it is impossible to determine what constitutes ‘projects of a character similar, ’ and it is impossible to accurately determine what constitutes the ‘area in which the work is performed.’ ”

The appellee demurred to the complaint on the grounds that it did not state facts sufficient to constitute a cause of action. Thereafter, the appellee amended his demurrer to include that the court has no jurisdiction and appellant had no legal capacity to sue. The Attorney General for the State of Arkansas intervened in the suit and was allowed to file a written brief.

On February 15, 1956, the trial court entered its order overruling the appellee’s amended demurrer as to the question of jurisdiction of the court. The court sustained the original demurrer in holding that Act 115 of 1955 was constitutional in every respect and dimissed the complaint. This appeal follows.

For reversal, the appellant lists the following points:

“I. The Act delegates legislative power to the Commissioner of Labor contrary to and in violation of the Constitution of the State of Arkansas and the Constitution of the United States.
“A. The Act Delegates Legislative Power to the Federal Government.
“B. The Act Is Incomplete In That It Affords No Adequate Standards.
‘ ‘ II. The Act is unconstitutional because it violates Article II, Section 18, Article 2, Section 3, and Amendment 14 of the Arkansas Constitution; and the Fourteenth Amendment to the Constitution of .the United States.
“A. The Act Creates an Arbitrary and Unreasonable Classification which, is Discriminatory in Effect.
“B. The Act Discriminates as to Those Areas in Which the Secretary of Labor Has Made No Determination.
“C. The Act Is Yagne and Uncertain.”

Act 115 of 1955 provides for minimum prevailing wages to be paid on certain state, county, municipal or other taxing agencies public construction projects. Briefly stated, the Act requires that the advertised specifications for every contract to which the state, any county, city or town, or any taxing agency is a party, for construction, alteration, and/or repair of public buildings or works, and which contract involves employment of mechanics and laborers, shall contain a provision stating that the minimum wages to be paid shall be based upon the wages that will be determined by the Secretary of Labor of the United States to be prevailing for the corresponding classes of laborers and mechanics on projects of a character similar to the contract work in the particular area in which the work is to be performed. Every contract shall contain a stipulation that the contractor shall pay such workers the wage rates in the advertised specifications. The wage scale shall be posted by the contractor in a prominent spot at the job site.

The Act also provides that if a contractor does not pay the advertised wage rate, then the difference between that paid and the advertised wage rate which should have been paid shall be withheld by the' contracting officer or agency from amounts due the contractor.

Section 3 of the Act provides that the Act does not apply to highway, street and/or bridge construction, it being the specific intent to exempt this type of construction.

Section 4 of the Act provides “it shall be the duty of the Arkansas State Department of Labor to procure and maintain/ at all times, the latest and most current information from the Secretary of Labor of the United States concerning minimum prevailing wages for the various classes of laborers and mechanics for all the various areas in this State, and to furnish such information to all persons upon request therefor.”

Section 7 of the Act provides that the purpose and intent of the Act is to provide and establish minimum prevailing wage scales on all public works involving the aforesaid agencies and because the Secretary of Labor of the United States maintains such information pursuant to the Davis-Bacon Act and this information is accurate and readily available and will provide for uniformity.

Section 8 of the Act provides that if the contracting officer or agency finds that any laborer or mechanic employed by the contractor is being paid a rate of wages less than called for by the contract, the contracting officer or agency may, by written notice to the contractor, terminate the right to proceed with the work and hold the contractor or his sureties liable to the agency for any excess costs occasioned thereby.

On September 20, 1955, the Arkansas State Labor Department adopted rules and regulations under the alleged authority to do so under the provisions of Act 115 of 1955. Rule 1 (B) defines “area” as follows:

“ ‘Area’: Area as used by these rules shall consist of an area established by the Commissioner of Labor, at the time the request for such establishment is made, and shall be based upon determination of wage rates in area where Secretary of Labor of United States has not established rates.”

Rule 2 makes an area determination as follows:

“It having been determined that the Secretary of Labor of the United States makes a determination of wage rates in a particular area in Arkansas only when a project is contemplated therein and a request is made for a determination involving said project by another Federal Agency; and further that many wages rates furnished the Department of Labor of the State of Arkansas are obsolete due to the expiration of the date such rate was established; the Commissioner of Labor of the State of Arkansas herein assumes the analogous authority of the Secretary of Labor of the United States as to the extent that he shall establish the minimum prevailing wage determination in such above referred areas as follows:
“ A. The establishment of a minimum prevailing wage rate in a county in which the Secretary of Labor has not specifically established a minimum rate shall be based upon the proximity to the labor market area having the most similar and comparable crafts and skills already established by the Secretary of Labor of the United States in which said county is situated.
‘ ‘ B. When a written request is made upon the Commissioner of Labor for the State of Arkansas under the provisions of Acts 1955, No. 115, for a determination of rates in the locality referred to in Section 2A above, the Commissioner of Labor shall be given ten days after the receipt of such request to make such determination; provided, however, that if such determination has already been made for such locality then only in that event such rates shall be provided forthwith.”

Act 115 attempts to fix a minimum wage to be paid on certain State, county, municipal or taxing agency public construction or works. A provision exempts highway, street and/or bridge construction.

The Act provides that “the minimum wages to be paid various classes of laborers and mechanics shall be based upon the wages that will be determined by the Secretary of Labor of the United States to be prevailing for the corresponding classes of laborers and mechanics employed on projects of a character similar to the contract work in the particular area in which the work is to be performed.”

The findings of the State Labor Department show that “the Secretary of Labor of the United States makes a determination of wage rates in a particular area in Arkansas only when a (Federal) project is contemplated therein and a request is made for a determination involving said project by another federal agency; and further that many wage rates furnished the Department of Labor of tbe State of Arkansas are obsolete due to tbe expiration of tbe date snob rate was established.”

Tbe Act fails to establish a standard or formula by which a wage scale may be formulated; but rather delegates to tbe Secretary of Labor of tbe United States tbe right to fix tbe minimum wage scale to be paid in a particular area of this State. Tbe State retains no control over tbe Secretary of Labor of tbe United States, therefore tbe Act violates Article 4, Sections 1, 2 and Amendment 7 to our State Constitution. Numerous decisions from other states have held similar legislation to be an unconstitutional delegation of legislative authority to an agency of tbe United States Government. Hutchins v. Mayo, 143 Fla. 707, 197 So. 495, 133 A. L. R. 394; Smithberger v. Banning, 129 Neb. 651, 262 N. W. 492, 100 A. L. R. 686; State v. Gauthier, 121 Me. 522, 118 A. 380, 26 A. L. R. 652; Holgate Bros. Co. v. Bashore, 331 Pa. 225, 200 A. 672, 117 A. L. R. 639

Act 115 contains no provision for tbe establishment of prevailing minimum wage rates for those areas in which tbe Secretary of Labor of tbe United States ha,s made no determination or those areas in which previous determinations have become obsolete and out-of-date. For this reason the Act discriminates as to those areas, since there is no standard or formula by which such wage rate may be determined, thereby making the Act local or special in its effect. This discrimination violates Amendment 14 to our State Constitution.

The Act is vague and indefinite in that it fails to define “a particular area.” To a County Judge, his area would be his County; to a Mayor, his area would be a municipality; and, to school directors, their area would be their school district. By the provisions of the Act, it is impossible to accurately determine what constitutes the “area in which the work is performed.” The Act.fails to confer on any agency the authority to determine facts necessary for fixing the limits of any particular area.

The rules and regulations adopted by the Arkansas Department of Labor, with reference to said Act 115, are void, due to tiie fact the Act failed to authorize the making of such rules and regulations.

In the case of Connaly v. General Construction Company, 269 U. S. 385, 70 L. Ed. 322, 46 S. Ct. 126, the court held that a similar statute was so uncertain, both in the use of words “current rate of wages” and “lo-. cality, ” as to deprive contractors of their property without due process of law.

For the reasons stated above, we find that Act 115 of 1955 and the rules and regulations adopted by the Arkansas Department of Labor pertaining thereto are unconstitutional and void.

Reversed and remanded.


author: J. Seaborn Holt, Associate Justice.

text:
    Ritchie Grocer Company v. Saders.
    5-997
    294 S. W. 2d 54
    Opinion delivered October 15, 1956.

      O. E. Gates and Gaughan, McClellan & Laney, for appellant.

      Wayne Jewell, for cross-appellant and Robert C. Compton, Walter L. Brown and J. Bruce Streett, for appellee.
   J. Seaborn Holt, Associate Justice.

Prior to November 9, 1953 appellee, B. M. Ritchie, operated a mercantile business at Hampton, Arkansas, and on this date he sold the business, fixtures and merchandise to W. D. Sanders. On this same day Ritchie took Sanders’ note for $8,100 payable in sixty monthly installments of $135 each and to secure payment of the note Sanders executed a chattel mortgage covering the fixtures, which were particularly described, and “also, my entire stock of merchandise, now in my store in the Ritchie Building, and that which may hereafter be stocked from time to time in said building, in Hampton, Arkansas.” This mortgage was duly recorded and at the time it was executed both B. M. Ritchie (mortgagee) and Sanders (mortgagor) owed no debts.

Sanders took over the business on November 9, 1953 and proceeded to operate it until February 17, 1954, when he delivered the fixtures and merchandise back to Ritchie and thereafter Ritchie operated the business, selling and disposing of the merchandise and stock in the regular course of retail trade. During the time that Sanders operated the business he purchased groceries and merchandise from appellants, Ritchie Grocer Co., South Arkansas Grocer Co., and Robert Mays Wholesale Grocer Co., which merchandise he co-mingled with his stock for retail sale and at the time when he delivered the merchandise and fixtures back to Ritchie, he, Sanders, was indebted to Ritchie Grocer Co. in amount of $749.51, South Arkansas Grocer Co. in amount of $566.48 and Mays Wholesale Grocer Co. in amount of $438.06. When Sanders delivered the stock of merchandise and fixtures back to Ritchie (February 17, 1954) no effort was made to comply with our bulk sales law, § 68-1501-1504 inch, Ark. Stats. 1947. When appellants learned that Sanders had returned the business and merchandise to B. M. Ritchie, as indicated, they filed the present suit against Sanders and Ritchie, in which they alleged that when W. D. Sanders transferred and delivered to B. M. Ritchie his entire stock of merchandise and fixtures on February 17,1954, there was no compliance with the bulk sales law and that such delivery of said stock of goods was in fraud of creditors; that Sanders was wholly insolvent and had made no provisions to pay his accounts to appellants or to his other creditors, and prayed for the appointment of a receiver to take possession of the stock of goods, merchandise and fixtures, to be administered for the benefit of Sanders’ creditors. At this point it appears that by agreement B. M. Ritchie was allowed to execute a bond in the amount of $2,000 to protect the creditors of Sanders, which was done, and the receiver, previously appointed by the court, was authorized to return the fixtures and merchandise to B. M. Ritchie. Appellee Sanders filed answer and cross complaint. A trial resulted in a decree holding that the delivery of the stock of goods, merchandise and fixtures from W. D. Sanders to B. M. Rit-chie was not in violation of the bulk sales law; that Ritchie was not responsible to the creditors of Sanders under the bulk sales law; and that there was “no liability on the part of B. M. Ritchie and his surety on the bond set forth in the court’s order of March 10,1954. The court finds that the receiver has collected some accounts owing to W. D. Sanders and has received other monies and has incurred expenses in performing his duties as receiver, and that a final settlement should be made and the receiver discharged,” . . . and decreed “that the plaintiff, Ritchie Grocer Company have judgment against the defendant, W. D. Sanders in the sum of $749.51 with interest from March 23, 1955; that South Arkansas Grocer Company have and recover judgment against the defendant, W. D. Sanders, in the sum of $566.48 with interest from March 23,1955; that Robert Mays Wholesale Grocer Company have and recover judgment against the defendant, W. D. Sanders in the sum of $438.06 with interest from March 23,1955; that the cross complaint of W. D. Sanders against B. M. Ritchie and against Ritchie Grocer Company and South Arkansas Grocer Company he, and the same is dismissed for want of equity; that the cross complaint of B. M. Ritchie against Ritchie Grocer Company and South Arkansas Grocer Company be, and the same is dismissed for want of equity; that the plaintiff’s complaint and the intervention of Robert Mays Wholesale Grocer Company as against B. M. Ritchie be dismissed for want of equity and that the bond in the sum of $2,000 given by B. M. Ritchie with John Dawson as surety thereon, be and the same is cancelled and held to be of no effect and the title to the stock of goods, merchandise and fixtures referred to in the complaint be quieted and confirmed in the defendant, B. M. Ritchie, as against all parties in this suit.”

Dor reversal appellants stoutly contend that “the transfer and delivery of the stock of goods, merchandise and fixtures by the debtor, W. D. Sanders, to B. M. Rit-chie was a violation of the bulk sales law, and that B. M. Ritchie thereby became a receiver of said stock of goods, merchandise and fixtures for the benefit of the creditors of W. D. Sanders,” and that since Sanders was insolvent ■ at the time of the transfer “and being indebted to B. M. Ritchie, the transfer of his assets consisting of the stock of goods, merchandise and fixtures to B. M. Ritchie was a fraud upon these plaintiffs who were his creditors,” and that the court erred in denying appellants, and the creditors, recourse against the bond of the receiver, B. M. Ritchie.

After a review of the record we have concluded that in the circumstances here the trial court erred in holding that the provisions of our bulk sales law were inapplicable to the transfer of the stock of groceries and the decree must be reversed for this reason. The chattel mortgage covering the specifically described fixtures, we hold to be valid and binding, in fact, appellants do not appear seriously to contend otherwise. It is undisputed-, as indicated, that at the time these fixtures were mortgaged neither Ritchie nor Sanders owed any debts. Our bulk sales law, § 68-1501-1504, Ark. Stats. 1947 applies to the sale, transfer, mortgage or assignment in bulk or any part of a stock of merchandise, otherwise than in the ordinary course of trade and in the regular prosecution of the business of the seller, and any transfer, mortgage or assignment shall he void against the creditors of the seller, transferrer, mortgagor or assignor unless certain provisions set out in the law are complied with. Here we have the attempt of the mortgagor, Sanders, to transfer and deliver hack to Eitchie his stock of merchandise in satisfaction of his pre-existing debt to Eitchie, .at a time when Sanders had incurred the above debts to appellants, wholesale grocers. Since our bulk sales statute above applies to any “transfer” we hold that the transfer here, in satisfaction of a preexisting debt, violated the terms of our hulk sales statute. This appears to he the majority view of the courts in construing bulk sales statutes. In Michigan Law Ee-view, Yol. 35 (1936-37) p. 748, where many cases are collected, we find this language: “A majority of courts, however, give a much broader scope to these laws [hulk sales] and ascribe to them the additional purpose of securing equality among creditors. In conformity with this view, the bulk sales laws are held applicable to a preferential transfer on the theory that one purpose of the statute is to give all creditors of the transferror an ample opportunity to protect their interests before the consummation of the transfer, otherwise the purpose of the act will be defeated. A transfer of goods is none the less a preferential transfer because it is made to one from whom the identical goods were previously purchased and because it is made in acquittance of the obligation incurred by such purchase. That is, if 8 sells goods to B who subsequently returns them to 8 because of his inability to pay therefor, such a return is a preferential transfer on the part of B.”

Sanders has cross appealed and contends that he is entitled to a judgment against B. M. Eitchie for the amount by which he alleges that the inventory of the stock of goods, which he turned back to Eitche, showed a value exceeding Sanders’ indebtedness to Eitchie. The chancellor, however, found against him on this contention and we are unable to say that the preponderance of the testimony does not support the chancellor’s finding. He also argues that “Sanders’ Accounts Receivable’’ were wrongfully seized and lie is entitled to have the accounts returned to him and damages for their wrongful seizure. We hold that the evidence does not support his claim for damages in this connection, hut we think in the circumstances that his accounts which remain uncollected should be returned to him. Since, it appears that $77.40 was collected on these accounts, Sanders should also he awarded a judgment for this amount [$77.40].

We hold that the appointment of the receiver in the circumstances was not error. The proof showed that Sanders was insolvent when he transferred the stock of goods back to B. M. Ritchie. Since this transfer was made in violation of our bulk sales law, we hold that B. M. Ritchie is accountable to the creditors of W. D. Sanders, therefore, it was proper and, in fact, necessary that a receiver be appointed to take charge of the assets for the benefit of all the creditors of the insolvent debtor, Sanders. The order of the court directing the receiver, Harold Johnson, to release the fixtures and stock of goods to B. M. Ritchie upon the conditions set forth in the $2,000 bond of Ritchie, appears to have been done in the interest of expediency and the creditors. Accordingly, the decree is reversed with directions to declare the chattel mortgage, given by Sanders to B. M. Ritchie, invalid as far as the stock of goods is concerned; that the transfer of the stock of goods by W. D. Sanders to B. M. Ritchie violated the terms of our bulk sales law above and to hold B. M. Ritchie accountable under his bond to appellants for the full amount of their claims against W. D. Sanders, and for any further proceedings consistent with this opinion.


text:
    Rowe v. Dickerson.
    5-1003
    295 S. W. 2d 305
    Opinion delivered October 15, 1956.
    [Rehearing denied November 19, 1956.]

      Jack Yates and Harper, Harper S Young, for appellant.

      Wiley W. Bean, Taylor & Cravens and Mark E. Woolsey, for appellee.
   Ed. F. McFaddiN, Associate Justice.

This litigation results from a traffic mishap in the City of Clarks-ville. Appellant Rowe’s car struck the ear driven by ap-pellee Dickerson, and the Jury awarded Dickerson damages. Only two questions are presented on this appeal.

I. Howe’s Motion For An Instructed Verdict. Rowe claims that the Trial Court erred in refusing his motion for an instructed verdict. It is Rowe’s contention that Dickerson was guilty of contributory negligence as a matter of law. Viewing the facts in the light most favorable to the appellee, it appears: (a) that Rowe was driving East on Main Street; (b) that his speed was between 30 and 45 miles per hour in a school zone where the speed was restricted to 15 miles per hour; (c) that Dickerson, driving North on Rogers Street, came to a complete stop before entering Main Street; (d) that Dickerson turned left to go West on Main Street; (e) that Dickerson then observed Rowe approaching rapidly from the West on Main Street; (f) that Dickerson came to a com-píete stop before crossing tbe center line of Main Street; (g) that it appeared that Rowe was attempting to pass Dickerson on Rowe’s left side rather than on Rowe’s right side; (h) that the right front of Rowe’s car struck the left side of Dickerson’s car, causing the damages and injuries later to be discussed.

Rowe argues that Dickerson was guilty of contributory negligence as a matter of law, in stopping in Rowe’s right hand traffic lane, and that such negligence is a complete bar to Dickerson’s recovery. But the testimony reflects that Rowe was proceeding at a rapid and unlawful speed; that Dickerson was keeping a good lookout; and that it appeared that Rowe was about to cross to Rowe’s left and pass in front of Dickerson’s car. Under such evidence, it was a question of fact whether Dickerson — confronted by an emergency due to Rowe’s excessive speed — should have speeded up to get across the South side of Main Street, or should have stopped to leave the North side of Main Street open for Rowe to use, since it appeared that he was headed in that direction. In Coca-Cola Bottling Co. v. Doud, 189 Ark. 986, 76 S. W. 2d 87, we held that when a person is confronted with a sudden emergency created by the negligence of another, the course of conduct adopted is to be measured by what the ordinary prudent man would do in an emergency, rather than what he might do on more mature deliberation. It was for the Jury to decide whether, under the emergency created by Rowe’s rapid speed, Dickerson pursued the proper course in stopping as he did. See also East v. Woodruff, 209 Ark. 1046, 193 S. W. 2d 664. We, therefore, hold that the Trial Court correctly denied the motion for an instructed verdict.

II. Amount Of The Verdict. Dickerson recovered $4,000 for personal injuries ; and Rowe claims that this verdict is grossly excessive. A study of the record discloses that Dickerson’s evidence is very meager as to many matters usually found in a case like this one. The record does, however, disclose that Dickerson suffered a whiplash syndrome as a result of the collision. The attending physician testified that Dickerson had great pain in the left arm, left shoulder, the cervical spine and neck, marked swelling and a large abrasion midway between the shoulder and elbow of the left arm; that there was no evidence of a fracture of the bone, but that the pain was extremely severe; that later a small tumor of scar tissue had to be removed; that Dickerson was placed in the Baptist Hospital in Little Rock, where such operation took place.

The doctor also testified that, in his opinion, for the first four months Dickerson suffered up to a 25% injury of the entire body and that, in his opinion at the end of a year, Dickerson’s disability would be from 8% to 10% of the body as a whole; and that such disability ivould be permanent. It was furthermore1 shown that Dickerson had lost considerable time from his work and was unable to work even at the time of the trial. Dickerson was a grocery salesman and delivery man and was 54 years of age at the time of the injury. The Jury had a right to consider his age, his residual disability, and th,e pain that he had suffered and would continue to suffer.

In view of all.of the foregoing, we cannot say that the verdict, even under the meager evidence, is grossly excessive. That is the test. See: Missouri Pacific R. Co. v. Newton, 205 Ark. 353, 168 S. W. 2d 812; and Missouri Pacific R. Co. v. Peters, 220 Ark. 657, 249 S. W. 2d 304.

Affirmed.

       As is our established rule: see Crownover v. Alread School Dist., 211 Ark. 449, 200 S. W. 2d 809; and Black & White Co. v. Doville, 221 Ark. 66, 251 S. W. 2d 1005.

       Because of the date of this traffic mishap, it is apparently conceded by all parties that this case is governed by our old rule (that contributory negligence was a complete bar) rather than our new comparative negligence statute, which is Act No. 191 of 1955.

       The firm of J. W. Dickerson recovered $181.37 for damages to its vehicle, and that verdict is not questioned on this appeal.

       For instance: (a) nowhere in the record can we find any figure as to how much Dickerson was earning at the time of the mishap; (b) Dickerson had an operation in a Little Rock hospital, but the amount of the hospital and surgeon’s charges are not shown in the record.

       The physician testified that it was what was commonly called a “whiplash neck, which is a name given injuries of this .type of painful areas or a complexus of symptoms.”


author: MiNOB W. Millwbe, Associate Justice.

text:
    McWaters v. Jefferies.
    5-1040
    294 S. W. 2d 57
    Opinion delivered October 15, 1956.

      Marcus Evrard and James M. Gardner, for appellant.

      Taylor & Sudbury, for appellee.
   MiNOB W. Millwbe, Associate Justice.

This is an action by appellee, Mrs. Lois Jefferies, against appellants, Anita Elizabeth McWaters, a minor, Mrs. Banetta McWa-ters and Langston-McWaters Buick Company to recover damages arising out of an automobile collision in the city of Blytheville, Arkansas on February 20, .1954. Trial before the circuit court without a jury resulted in a judgment for appellee in the sums of $1,500 for personal injuries and $400 for property damage.

For reversal appellants contend there is no substantial evidence to support the judgment and that appellee was guilty of contributory negligence as a matter of law. In determining the sufficiency of the evidence on the questions of the negligence of appellants and the contributory negligence, of appellee, we must consider it in the light most favorable to appellee. It is also well settled that where a ease is tried before a judge sitting as a jury, his finding on a question of fact is as conclusive on appeal as a jury verdict and will not be disturbed if supported by any substantial evidence. Pate v. Fears, 223 Ark. 365, 265 S. W. 2d 954.

■According to appellee’s testimony she was driving her Bnick automobile west on Main Street in the 600 block on the afternoon in question when a Nash car belonging to Langston-McWaters Buick Company and being driven by the minor appellant, Anita Elizabeth Mc-Waters, pulled in front of appellee. The McWaters girl was on a mission for her mother, Banetta McWaters, to the home of her grandmother who lived on the south side of Main Street in the 1,000 block. The two cars were traveling between 20 and 25 miles per hour with appellee’s car about two or three car lengths behind the other car. When appellants’ car reached a point opposite the driveway to the grandmother’s residence it stopped suddenly and without a signal or warning of any kind for the purpose of turning into the driveway and appellee’s car struck the rear of appellants’ car resulting in the damages for which judgment was rendered. Oncoming traffic to her left and a line of trees on her right prevented appellee from turning to avoid the collision which occurred as she applied her brakes.

Appellee was 55 years of age and had been driving 37 years at the time of the collision. The McWaters girl was 14 years of age and driving without a license. There were two other young girls on the front seat with her.

The foregoing evidence on behalf of appellee was disputed only to the extent that the occupants of appellants’ car testified that the McWaters girl turned on her blinker signal light indicating her intention to make a left turn into the driveway before she came to a normal stop several seconds before the collision. This was stoutly denied by appellee. There is an absence of any evidence that appellants’ driver looked back or into the rear-view mirror before making the stop.

The trial court, sitting as a jury, was the sole judge of the credibility of the witnesses and the weight to be given their testimony. When the conflicting evidence in this case is viewed in the light most favorable to appellee, we find it substantial and sufficient to support the trial court’s finding that the negligence of appellants’ driver was the sole and proximate cause of the collision and consequent damages to appellee. The judgment is accordingly affirmed.


author: George Rose Smith, J.

text:
    Shipley v. Campbell, Executor.
    5-894
    294 S. W. 2d 59
    Opinion delivered October 15, 1956.

      Harold Sharpe, Wood & Smith, Wesley Wood and Morriss, Morriss, Boatwright & Lewis, for appellant.

      Mann -& McCulloch and Giles Bearing, for appellee.
   George Rose Smith, J.

This is a contest of the will of Mary Lee Mann, who died in 1953 at the age of seventy-five. Her estate, valued at more than $250,000, consists principally of a large farm in Cross and St. Francis counties. By the will in question, which was executed in 1952, the testatrix made several specific bequests and then left the remainder of her estate to Fred Thomas, who had been her farm manager since 1948. The decedent’s heirs at law are fourteen consins, thirteen of whom are the contestants. The other cousin, Lee Ola Boberts, received a legacy under the will and has not joined in the contest. The trial court, rejecting the contestants’ assertions of testamentary incapacity and undue influence, admitted the will to probate.

On the issue of testamentary capacity it is the appellants’ contention that Mary Lee Mann became mentally incompetent at some time betAveen 1937 and 1941 and was thereafter continuously insane until her death in 1953. In developing this theory the contestants introduced a great deal of testimony about occurrences long before the making of the will in 1952. The proponents’ proof is also extensive in its range, so that the record presents a detailed account of the last sixteen years of Mrs. Mann’s life.

Mary Lee Mann was born on the farm now in controversy, but she was orphaned in childhood and was brought up by relatives in Whiteville, Tennessee. She and Arthur Mann were married in 1912 and lived together devotedly until his death in 1941. From about the year 1926 the couple made their home in San Angelo, Texas, where Mann was engaged in business. During her earlier years in Texas Mrs. Mann is described as having been markedly antisocial and apparently interested only in her husband.

In 1937 Mrs. Mann began to show the effects of heart trouble and arteriosclerosis, from which she suffered for the rest of her life. Her weight fell from about 170 pounds to about 115 pounds. The contestants offered much testimony to show that Mrs. Mann became very critical of every one except her husband, extremely careless in her dress, and exceedingly stingy in all money matters. There is also proof that the testatrix was deeply shocked by the unexpected death of her husband in April of 1941. Her grief is portrayed as having been altogether abnormal; it is said that for years she habitually stayed up at night, talking to her husband’s picture, and slept during the day.

In the latter part of 1941 Mrs. Mann returned to 'Whiteville and lived there until 1948. She then moved to Wynne, Arkansas, and bought a house jointly with her cousin and cousin-in-law, Iva and Gary Flowers. The three lived together until March, 1951, but the arrangement did not prove to be a happy one. Mrs. Mann eventually brought suit to cancel the contract and was upheld by the courts. Flowers v. Mann, 219 Ark. 397, 242 S. W. 2d 840. From March to July of 1951 the testatrix was quite ill and spent the greater part of that period in the clinic at Wynne. When she was able to leave the hospital she moved to the farm and lived with Fred Thomas and his wife until her death on December 15, 1953. The will now in question, which was the last of several wills made by Mrs. Mann, was executed on March 30, 1952, after she had been at the farm for about eight months.

As we have said, the appellants contend that the testatrix was an insane woman, without lucid intervals, for at least the last twelve years of her life. In our opinion the weight of the evidence is against this contention and establishes the existence of testamentary capacity when the will was executed. We find it impossible to reconcile the theory of continuous insanity with the undisputed proof of what Mrs. Mann actually accomplished during the years in question.

Upon her husband’s death in 1941 Mrs. Mann acted as the executrix of his will and appears to have performed her duties satisfactorily. She later conveyed her San Angelo home to her sister-in-law, Ona Mann Runkles, who now testifies that Mary Lee was mentally incompetent Avhen she executed that deed.

When Mrs. Mann left Texas she transferred her substantial bank accounts to Arkansas. Here she maintained two bank accounts and made deposits and withdrawals. There are in the record some 300 checks that she wrote between 1941 and November, 1953 • — • the month before her death. Many represent business transactions, such as the payment of insurance premiums and the semi-monthly salary of her former farm manager. She paid off a mortgage that encumbered the farm at her husband’s death. She required her farm manager to send the tenants ’ rent notes to her in Whiteville and returned them for collection when the crops were about to be gathered. She invested $25,000 or more in the Wynne Federal Savings and Loan Association after having discussed the matter with her banker and with the president of the association, who says that she first asked “a lot of intelligent questions” about the institution. After moving to Wynne the testatrix contributed about $4,000 for the purchase of a pipe organ for her church at Whiteville.

The record contains a number of letters, in Mrs. Mann’s handwriting, that give every indication of having been written by a person of normal intelligence. Before Mrs. Mann went to Wynne to live she wrote to Mrs. Flowers and asked her to find a suitable house. The decedent paid almost the whole consideration for the home that was bought jointly with Mr. and Mrs. Flowers, but they now question her capacity to enter into the agreement. We need not enumerate many other transactions that are described in the testimony.

Strongly confirming Mrs. Mann’s soundness of mind is the testimony relating to the actual execution of the will. Her banker, W. W. Campbell, states that he and his wife visited Mrs. Mann about every two months while she was living at the farm. During those visits she seemed alert and cheerful. A week or so before the drafting of the will, as the Campbells were leaving, Mrs. Mann told Campbell that she wanted to talk to him about her will at the first opportunity. On Sunday, March 30, she had Thomas telephone Campbell and ask him to come to the farm. Assuming that the will was to be discussed, Campbell took with him his brother-in-law, Burk Mann, a local attorney. When they arrived Campbell went in alone and found that Mrs. Mann did desire to make a will. He explained that he had brought Burk Mann, and, while this attorney was not related to the testatrix’ deceased husband, Arthur Mann, the testatrix knew him by reputation and said there was no one she would rather have. Campbell then called Mann into the house.

Mrs. Mann discussed the proposed will in detail with the attorney. She had already prepared a memorandum of the various bequests, including the devise of the farm to Fred Thomas. Mann went over the memorandum with her, item by item, and, as his client wanted the will drawn at once, went into another room and wrote the will. At Mrs. Mann’s suggestion Lee Horton, who lived a few miles away, was called to witness the will, along with Burk Mann. The latter says that he asked the testatrix whether Fred Thomas and his wife had any intimation about what she was doing for them, and she said: “Not the least bit.” The memorandum, concededly in Mrs. Mann’s handwriting, was introduced in evidence and is one of the most convincing indications of the testatrix’ mental capacity.

Although the testimony of the lay witnesses prepon-, derates rather decidedly in favor of the decedent’s sanity, the contestants introduced six physicians who expressed the opinion that Mrs. Mann lacked testamentary capacity. Four of these witnesses, however, had never seen the testatrix and based their opinion upon a fifty-page hypothetical question. This question does not contain an impartial summary of all the testimony; it presents the contestants ’ proof in its most favorable aspect and disregards almost all of the proponents’ evidence. In these circumstances the expert opinions do not materially strengthen the contestants’ case. On the other hand, the opinions of the physicians who actually treated Mrs. Mann are in conflict.

On the issue of undue influence we are similarly of the opinion that the contestants failed to sustain their burden of proof. There is no direct evidence of undue influence on the part of Fred Thomas and his wife, but the appellants urge that the circumstantial evidence is sufficiently strong to invalidate the will on this ground. They argue that the residuary devise to Thomas, to the exclusion of the testatrix’ blood kin, is an unnatural disposition of the estate, and they stress the opportunity that the Thomases had for the exercise of a sinister influence upon Mrs. Mann while she was living with them at the farm.

The testatrix’ disposition of her property does not seem as unnatural as the appellants would have us believe. Mrs. Mann’s heirs, under the statute of descent and distribution, are fourteen cousins. She was undoubtedly fond of one of them, Mrs. Eoberts, who helped rear Mrs. Mann in Whiteville and who receives in excess of $12,000 under the will. The other thirteen live in various places — elsewhere in Tennessee, in Massachusetts, Missouri, Texas, and Arkansas. It is not shown that Mrs. Mann had ever met all these scattered cousins or had any especial affection for them. Three of the thirteen testified at the trial, but none of them had seen the testatrix for more than four years before her death. One of the three had seen Mrs. Mann only three times in her life, for about an hour on each occasion. On the basis of those brief visits the witness says she considered her kinswoman to be of unsound mind, but she gives no plausible reason for this conclusion. Inasmuch as the testatrix undoubtedly had the privilege of leaving her property to any one she chose, her failure to make these contestants the beneficiaries of her will cannot be regarded as strong circumstantial proof of undue influence.

It is certainly true that Mr. and Mrs. Thomas had an excellent opportunity to sway the testatrix during the eight months preceding the execution of the 1952 will. Mrs. Mann was then in frail health, did not venture beyond the front porch, and was dependent upon the Thom-ases for all her needs. Yet she was not kept in seclusion; she had many business and social visitors while she was living with the Thomases. It is argued, however, that the existence of undue influence is the only reasonable explanation for Mrs. Mann’s exceptional generosity toT ward one who was not related to her and had merely been the manager of her farm for a few years.

This argument is pretty well rebutted by the terms of the next to the last will that the testatrix executed. This will was signed and attested at the Wynne clinic on April 30,1951, It was prepared by Mrs. Mann’s attorney, Giles Dearing, who was representing her in the litigation with Mr. and Mrs. Flowers. There is no good reason to think that the 1951 will did not correctly reflect the testatrix’ wishes at that time.

By the earlier will Mrs. Mann left all her real property to Mrs. Roberts for life, with remainder in fee ‘ ‘ to my good friend Fred Thomas. ’ ’ As Mrs. Roberts was then past eighty years of age the remainder to Thomas was very nearly the equivalent of the fee simple. It is significant that the facts now strongly urged to support the charge of undue influence did not exist in April, 1951. Mrs. Mann had not then lived in the same home with the Thomases. To the contrary, for the preceding three years she had resided with her cousin, Iva Flowers. During those years the Thomases took the trouble to visit Mrs. Mann several times a week and to bring gifts of fresh food from the farm. There is proof that Mrs. Mann preferred living with the Thomases to living with her cousin. There is proof that she was happy while in their care. Theirs was perhaps the only real kindness that Mrs. Mann received from anyone after the death of her husband. The fact that her recognition of that kindness may seem to have been unduly liberal is not a sufficient reason for declaring her will to be invalid.

Affirmed.


text:
    Hunter v. Johnston.
    5-1015
    294 S. W. 2d 49
    Opinion delivered October 15, 1956.

      Bon Steel, for appellant.

      Nabors Shaw, for appellee.
   Paul Ward, Associate Justice.

Mrs. Lilly Davis Hunter died in 1953, leaving as her only heirs one daughter and two sons — William, Helen and Percy. Pound among her papers were two notes signed by Percy and his wife, Juanita. One for $2,000 and one for [a balance of] $500. For the purposes of this opinion it may be stated that appellants admit liability on the notes and also admit they used the borrowed money to help purchase and improve a homestead in Polk County.

This suit was instituted in chancery court by Helen and William against Percy and his wife to recover judgment for two-thirds of the amount due on the notes, and to impress a lien therefor on the homestead. The chancellor granted the relief prayed for, and appellants here seek a reversal on two grounds, viz: (a) The chancery court had no jurisdiction and (b) the evidence does not justify the granting of a lien. We disagree with appellants on the first point but agree with them on the other point.

(a) Although we might agree that the motion to transfer to circuit, based on the original complaint, was proper, yet, from a practical standpoint it would be of no benefit to appellants for us to so hold at this time, and it would only result in a loss of time and money. The original complaint, in our opinion states no ground for equitable relief, but later an amendment to the complaint was filed which, in the absence of further objections, justified the chancellor in permitting the parties to fully develop the matter of a lien.

(b) We conclude however that it was error for the trial court to decree a lien on the homestead in favor of appellees.

The complaint, in substance, alleges that the $2,000 was used by Percy to purchase the homestead and that the $500 was used to improve it. The amended complaint alleges that the deceased advanced the $2,000 to appellants “. . . with the understanding and relying upon the representations made by the defendants to Mrs. Lilly Davis Hunter that as soon as the defendants sold their home in Florida they would repay her the amount she had advanced on the purchase price of these lands . . .”; and “that ... in 1951 the defendants sold their Florida property but failed to repay the $2,000 . . .”

Appellees were unable to offer any direct evidence of an oral or written agreement whereby the deceased was to have a lien on either the property in Polk County or the property in Florida. William did say that his mother told.him “she let him [Percy] have the money for the purchase” of the Polk County property. Percy also gave this testimony:

“Q. What did these two defendants do to defraud your mother?
A. The only thing is what she said. They come up there and borrowed the money with the understanding they were to pay when they sold the property in Florida, and the property, had been sold.”
# * *
‘ ‘ Q. But she never did indicate to you that the Polk County land was security for that indebtedness, did she ?
A. No, sir, she did not.” Helen’s testimony on this point was:
“Q. Do you recall, Mrs. Johnston, when your mother loaned your brother Percy the $3,000?
A. No, sir, I did not know a thing about it for two years afterwards.”

Perhaps the most significant evidence offered by ap-pellees regarding the Florida property was the introduction of a letter written by the deceased, dated October 13, 1953, in which, among other things she states: “You said you would sell your Florida home and pay me . . . You said you would pay me the ins. just like the loan had and that you would sell your Florida home and pay me back in a short time.” Two things should be noted regarding this letter. One is that it fails to state at what time appellant made the alleged promise, and, too, it appears likely the letter was never sent to appellants. They say they never received it, and William says “I found it in her belongings,” referring to his mother.

On the other hand, Percy and his wife both state positively that they merely borrowed the money from Percy’s mother, and that nothing whatever was said at that time about the Florida property or about her having a lien on the Polk County property. Moreover, their version of what took place appears reasonable. Percy, a career air force pilot, retired in 1947, and in the meantime had purchased a home in Florida. At one time while he and his wife were stationed at Fort Worth his mother visited him. On occasions Percy’s mother expressed the hope they would make their home near her in Polk County. In 1950 they visited Mrs. Hunter at her home in Polk County and Percy told her he had found a place in that county which suited them but did not have sufficient money to buy it. Mrs. Hunter thereupon volunteered to loan them some money to help buy the place, and they accepted the loan. They say Mrs. Hunter did not even want a note, but they insisted, and the notes are in the handwriting of Percy’s wife. No due date is shown on the notes. Within seven months after appellants bought the home in Polk County, the house and furniture burned. Thereupon Percy’s wife went to Florida and sold their home for $1,217.63 [their equity], and they used this money to repair and refurnish their home in Polk County. They do not deny owing the notes.

Under this factual situation appellees are not entitled to have a lien impressed on appellants’ home in Polk County. There is no evidence that Percy and his wife agreed to give Mrs. Hunter a lien, or that they tricked or defrauded her into making the loan, or that she expected any security for the advancements other than the notes and their promise to repay.

G-enerally speaking, before equity will create or impress a lien in a situation similar to the one here presented, either it must appear there was some agreement to that effect, or there must be a showing of deceit or fraud. The first alternative is recognized in 53 C. J. S. at page 840, where it is stated: “An equitable lien may arise from an express contract whereby a party promises to transfer, or indicates an intent to charge or appropriate, particular property as security for an obligation. No special form of contract is essential, provided the intent of the parties to create a lien is clearly expressed.” The second alternative is treated in the same volume at page 844. After stating that an equitable lien may arise independently of any express agreement, based on considerations of right and justice and on an obligation or duty to be enforced, it is stated: “However, the tendency is to limit rather than extend the doctrine of constructive liens, and, in order that such a lien may be claimed, either the aid of a court of equity must be requisite to the owner so that he can be compelled to do equity or there must be some element of fraud in the matter as a ground of equitable relief. ’ ’

In this case the evidence falls short of establishing either an agreement that the deceased was to have a lien on the land, or that she was induced to make the loan by deception or fraud. It shows merely a voluntary loan of money.

Part of the money loaned by the deceased was used by appellants to make improvements on the land. Under facts much more favorable to appellees than obtain here, we held in Butterfield v. Butterfield, 79 Ark. 164, 95 S. W. 146, that no lien was created.

Neither did the loan of money for part purchase price of the land create a lien in favor of the lender under the facts in this case. Frequently the situation suggesting an equitable lien is akin to that indicating a resulting trust. Both were discussed, on the same factual basis, in Travis v. Neal. 199 Ark. 236, 134 S. W. 2d 515 in language appropriate here. Mrs. Travis, wbo bad paid for land which her husband and a Mr. Davis had purchased, sought to have a resulting trust or a lien declared. As to the former the court, said: “No elements of a trust appear under the conditions testified to by the parties. There was no mistake, no unconscionable conduct that by any stretching of the imagination could be treated or considered as a fraud. There was no abuse of confidence or of the relations of the parties one to another.” In denying a lien it was said: “On the other hand we find no evidence that would warrant the court in declaring a lien on this property. There was a lien on the property in favor of Hubbard, and Mrs. Travis might well have been the beneficiary of that lien had she desired to claim it against the land at the time she now insists she furnished the money to pay the notes. She could have had Mr. Hubbard assign to her the notes, contract and mortgages, and since she was a stranger to the contract, in no sense a party to it, she could have enforced whatever lien Hubbard had against the land. She elected not to do that and, of course, in the payment for this property, according to her own testimony, she was a volunteer when she paid over the money.”

Accordingly, the cause is reversed and remanded with directions to cancel the lien, but in all other respects the decree of the trial court is affirmed.


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    Commissioner of Labor, C. R. Thornbrough v. Danco Construction Company.
    5-1052
    294 S. W. 2d 336
    Opinion delivered October 22, 1956.

      Karlin J. Perryman, on reply brief, only, for appellant.

      John B. Thurman, Mehaffy, Smith & Williams and B. S. Clark, for appellee.
   Lee Seamster, Chief Justice.

On January 10, 1956, appellant, C. R. Thornbrough, Commissioner of Labor for the State of Arkansas, served a subpoena on appellee, Danco Construction Company, commanding its representative to appear in the offices of the State Labor Department on January 13, 1956, and show cause for ap-pellee’s failure to produce certain books and payroll records which had been requested by the Commissioner. The subpoena also directed appellee to produce its payrolls and other records, showing the name, address, and occupation of each person employed by appellee on the waterworks extension project at Camden, Arkansas; and further, the daily and weekly hours worked by each such person, and the wages paid each pay period to each such person.

On January 13, 1956, the appellee filed a Petition for "Writ of Certiorari in the Pulaski Circuit Court, Third Division, seeking a review of the Commissioner’s actions, and on the same day the Commissioner filed a Petition for Attachment on the subpoena. The appellee filed an answer to the Petition for Attachment, alleging that Act 115 of 1955 was not applicable to the project referred to in the subpoena since the waterworks extension project was not a taxing agency.

The matters were consolidated and on March 22, 1956, the trial court entered an order dismissing the cause, holding that the Camden Municipal Waterworks System, under operation by the Waterworks Commission, was not a taxing agency within the purview of Act 115 of 1955. This appeal follows.

For reversal, the appellant alleges that there is no requirement that a municipality, city, or town or other agent of the state be a taxing agency in order to come within the application of Act 115 of 1955.

At the outset we are confronted with an insufficient abstract by appellant, and have concluded that the order of the trial court must be affirmed for this reason. The appellant has failed to abstract the record in this case as required by Supreme Court Rule 9 (d) and consequently this court is not afforded an understanding of the questions to be resolved. In this case appellant did not abstract the pleadings or the decree, and there is nothing in the entire brief upon which the judges of this court could confidently say that the decree of the trial court should be reversed. The several judges of this court are not required to make an individual search of the record, particularly in the absence of proper references thereto, in order to arrive at a decision, and it certainly is not practical to do so.

Constitutional questions are never decided unless necessary, however, we feel that it is necessary to point out that this court recently held that Act 115 of 1955 was unconstitutional. See Crowly v. Thornbrough, Commissioner of Labor, Ark., 294 S. W. 2d 62.

Accordingly the decree of the trial court is affirmed.


author: J. SeaborN Holt, Associate Justice.

text:
    Kirk v. Roach.
    5-1054
    294 S. W. 2d 335
    Opinion delivered October 22, 1956.

      Caldwell T. Bennett, for appellant.

      Williamson & Williamson, for appellee.
   J. SeaborN Holt, Associate Justice.

At an annual school election held March 17,1956, appellee, (contestee), received 126 votes for school director and appellant, (contestant), received 107 votes. On March 28,1956, appellant filed a contest alleging in his complaint that 24 votes, which he listed and described separately, cast for appellee were illegal and void and when purged appellant would have a majority of the legal votes cast and should be declared elected. Summons on the complaint was issued March 28, 1956, served April 2, 1956, and on April 9, 1956, appellee, Roach, filed a “motion to dismiss for want of jurisdiction.” This motion was based upon the alleged failure of contestant, Kirk, to give notice of contest to contestee as set out in § 3-1205 Ark. Stats. 1947, which is Sec. 71,. Act 34 of 1875. A hearing was had on this motion April 16, 1956, and the court sustained appellee’s motion and dismissed appellant’s cause of action, for failure to serve notice as set out in § 3-1205 above. This appeal followed.

For reversal appellant says: ‘4 This appeal raises but one point or one issue for decision. Querie: Is it necessary to comply with the notice provision of Sec. 3-1205 Ark. Stats. 1947, which is also Sec. 71 of Act 34 of 1875 — when Section 3 of Act 366 of 1951, expressly provides that the procedure in a school directors election contest shall follow the procedure set out in Act 34 of 1875, Section 68 (Ark. Stats. 1947, § 3-1204)?” Contestant (appellant) stoutly contends that Act 366 of 1951 provides the form and procedure for contesting elections of school district directors and that the notice set out in § 3-1205 above is not required. We hold that this contention of contestant must be sustained.

Act 366 of 1951 is short and unambiguous, it provides: “Section 1. If the election of any member of a county board of education or member of a school district board of directors be contested it shall be before the circuit court of the county wherein the contested office exists. Section 2. All actions to contest such election shall be commenced within twenty (20) days after the election at which any such person was elected. Section 3. Actions to contest election of county and district school officers shall follow the procedure set out in Act 34 of the Arkansas Acts of 1875, Section 68 (Ark. Stats., 1947, Sec. 3-1204). Section 4. It is hereby declared that the purpose of this Act is to divest county boards of education of jurisdiction to hear and determine school election contests and to vest such jurisdiction exclusively in the circuit courts. Section 5. All laws and parts of laws in conflict herewith are hereby repealed.” This act very clearly and unmistakably provides the forum for school election contests to be in the circuit court, divests county boards of education of jurisdiction, and fixes the time for filing contests “within 20 days after the election.” It specifically directs that all contests of school district officers shall follow the procedure set out in Section 68 of Act 34 of the Arkansas Acts of 1875 [Ark. Stats. 1947, § 3-1204], This section 68 [now, as indicated, § 3-1204 Ark. Stats. 1947] provides: “All actions or proceedings for contests as herein mentioned • shall be by complaint filed in the circuit court as other actions at law, in which the contestant shall plainly and fully set forth the grounds upon which the contest is found, and upon the trial of the same, he shall be confined to such grounds as are therein mentioned, but may amend the same in such manner and upon such terms as do not prejudice his opponent etc.” The intention of the Legislature that Section 68 [the only section of Act 34 of 1875 referred to] be the procedural guide is unmistakable. Neither Section 71 [now § 3-1205 Ark. Stats. 1947] relied on by appellee, nor any other section in Act 34 of 1875 is referred to. To make doubly sure that the Legislature’s intent was that Section 68 should be followed, as to procedure, this Section 68 of Act 34 of 1875 is pointed out as now being § 3-1204, Ark. Stats. 1947, and further, all laws in conflict with the provisions of Act 366 were specifically repealed. It is clear to us that appellant has literally followed the provisions of Act 366 above, in this contest of a school director’s election, and that the trial court erred in holding other-. wise, accordingly, the judgment is reversed and the cause remanded.


text:
    Vickers v. Ripley.
    5-1034
    295 S. W. 2d 309
    Opinion delivered October 22, 1956.
    [Rehearing denied November 26, 1956.]

      Clifton Bond, for appellant.

      Paul K. Roberts, for appellee.
   J. SeaborN Holt, Associate Justice.

This suit was brought by appellee (C. L. Ripley) against appellant (Arnold Vickers) to recover $863.01 alleged due and unpaid on an open account for poultry feed and supplies furnished to Vickers. Vickers’ answer alleged: “That the defendant denies each and every material allegation of the plaintiff’s complaint. Further, that the defendant specifically states that the complaint and the itemized statement of the account attached thereto are neither just nor correct and erroneously state the amount, if any, which the defendant might owe.” A jury trial resulted in a verdict for appellee in amount of $578.67 and this appeal followed. Appellee has cross appealed.

For reversal appellant relies on this one point: ‘ ‘ The records of account upon which the claim of the plaintiff-appellee is based were prepared by the appellant who denies their validity, accuracy and correctness, and, therefore, are incompetent in evidence to sustain the verdict and judgment against the defendant-appellant.”

The evidence shows that appellee, Ripley, is a dentist, in active practice, in Warren, Arkansas, and also was the owner and operator of the Rainbow Peed Mills there. The manner in which appellant secured the feed and supplies here involved was first to go to appellee’s dental office, procure a key to appellee’s feed store, then proceed alone to the store, unlock the door, select what he wanted, load it on his truck, make out sales ticket for the feed received, then leave the ticket on a desk in the store, close and lock the door and drive off with his purchase. Appellee would later pick up the sales ticket and enter the account in a ledger.

The question presented was one of fact, for the jury to determine what amount, if. any, appellant owed appel-lee for the feed and supplies purchased ^ and received from appellee. The trial court, after instructing the jury that the burden of proof was on appellee, correctly instructed them, at appellant’s request, “If you find that the entire account upon which suit is brought is not just, accurate or correct then your verdict shall be for the defendant, and, if any part of the account is not just, accurate or correct then your verdict shall be for the defendant as to that part which is not just, accurate and correct. ’ ’

Appellee testified, in effect, that Vickers purchased feed and supplies from him during the period of time from August 9,1954 to January 13,1955 and was indebted :to him in the amount of $863.01; that Mr. Vickers would come to his office and get the key, unlock the feed house, get his feed, and make a ticket and either bring the key to him or give it to the filling station boy. That was the reason the tickets were made out by Mr. Vickers. Mr. Vickers would leave the tickets on the desk, already made out with the amount of feed; that he, appellee, was his own bookkeeper and would pick up the sales slips and enter Ihem in his ledger. Appellant testified, in effect, that, he owed nothing on the account; that he had paid appellee all he owed him. Thus, the issue of the correctness of the account was presented to the jury. The evidence further shows, as indicated, that appellee made up his ledger sheets of appellant’s account of indebtedness to appellee from a large number of sales tickets prepared by appellant, or Ms authorized agent, and furnished to appellee.

Appellant testified that he did not deny the validity of any specific sales ticket among the 36 offered in evidence by appellee. Quoting from appellant’s testimony: “Q. Then the signature or writing on the ticket as to the amount or name would either be in your handwriting, the handwriting of Mr. Hubert Godwin, your brother-in-law, or the .handwriting of your wife? A. Yes, sir. Q. Then actually you may have gotten some of the feed where the ticket was not in your handwriting; is that correct? A. That’s right. Q. Therefore, in looking at ■these, in pointing out the fact that it was your handwriting or it was not your handwriting, it doesn’t necessarily mean that you are denying that particular ticket, is that correct? A. That is correct.”

The ledger account, or memorandum, made and kept by appellee was admissible in evidence for either of two reasons: first, it was made up by appellee from sales tickets or invoices admittedly prepared by appellant himself, or his agent, which were, in effect, admissions against his own interest and come within the exception to the hearsay rule; and, second, we hold that this record account, or memorandum, in the circumstances here, was made by appellee in the regular course of business and admissible in evidence under § 28-928 Ark. Stats. 1947 [Pocket Supplement] which provides: “In any court of record of the State, any writing or record, whether in the form of an entry in a book or otherwise, made as a memorandum or record of any act, transaction, occurrence, or event shall be admissible as evidence of such act, transaction, occurrence, or event, if made in regular course of any business, and if it was the regular course of such business to make such memorandum or record at the time of such act, transaction, occurrence or event or within a reasonable time thereafter, etc. ’ ’

"We hold that there was substantial evidence to sup- ' port the jury’s verdict and accordingly we must and do, under our rule, affirm the judgment, Coffer v. State, 211 Ark. 1010, 204 S. W. 2d 376.

The appellee on his cross appeal contends that: ‘ ‘ The jury acted without substantial evidence to support, their finding that appellant did not owe the $863.00.” We do not agree to this contention. What we have said above applies also to this contention. As pointed out, on conflicting and substantial testimony, the jury found that $578.67 was all that appellant owed appellee and in the circumstances it is beyond our province to set this verdict aside. Finding no error, the judgment is affirmed on both direct and cross-appeal.