author: Sam Robinson, Associate Justice. Carleton Harris, Chief Justice, dissenting.

text:
    Williams v. State.
    4905
    322 S. W. 2d 86
    Opinion delivered January 26, 1959.
    [Rehearing denied April 6, 1959]

      Kaneaster Hodges, Sam Levine, G. M. Erwin, for appellant.

      Bruce Bennett, Atty. General, by Thorp Thomas, Asst. Atty. General, for appellee.
   Sam Robinson, Associate Justice.

Appellant, H. O. Williams, a school teacher, was convicted of the crime of involuntary manslaughter and sentenced to two years in the penitentiary and fined $1,000. On appeal appellant contends, among other things, that the evidence is not sufficient to support the verdict.

On the 25th day of February, 1957, Williams attempted to drive an old truck in a bad state of repair, to a shop at Weldon, in Jackson County, Arkansas, to have it repaired. He could not get the vehicle started, and it was therefore necessary to get assistance by having the truck pushed. Before he reached the hard surfaced road he got stuck in a mud hole. He left the truck there overnight; went back the next day and got Mr. Carr, who lived nearby, to pull him out of the mud hole with a tractor. Finally Williams arrived at the hard surfaced road with the truck and started north toward Weldon, about two miles distant. After traveling about one-half mile the truck began to sputter and stopped. The hard surfaced part of the road is 23 feet wide, and the truck came to a stop in the middle of the east travel lane. This was about 7:00 p. m. It was dark and drizzling rain. Williams had no flares. There was no tail light on the truck, and although one headlight had been burning when the truck was running, no light on the truck would burn after it stopped. Accepting Williams’ testimony as true, he attempted to push the truck off the paved portion of the highway but was unable to do so. He attempted, also, to get other travelers on the highway to stop and help him, but none would stop. He then started walking toward Weldon with the intention of getting a garageman to come and move the truck. He had gone only a short distance when Mr. Burton, with whom he was acquainted, stopped and picked him up. At that time Burton cautioned Williams that the truck had been left in a dangerous place. Williams rode to Weldon with Mr. Burton and proceeded to the garage to get Euil Malden to go move the truck. Malden was eating his supper at the time, and he told Williams that he would have to finish his supper and finish the work he had been doing on a tractor before he could go after the truck. Williams was under the impression that this would not be too long. He sat down and waited for Malden until work was finished on the tractor. This work was not completed until about nine o’clock.

In the meantime Mr. Jimmy Ray Simmons was driving his car north on the same road where the truck had been left; he was going in the same direction the Williams truck was headed when it stopped. In the car with Mr. Simmons were his wife and son, and Mr. Jim Benning and his wife and son, and Mrs. Benning’s daughter, Linda, nine years of age. As Mr. Simmons approached the Williams truck, but before he got to a point where he could see it, he was met by a truck driven by Clyde Henderson, traveling south. The lights from the Henderson truck blinded Simmons to the extent that he did not see the Williams truck until just a few feet from it. In an attempt to miss the Williams truck, he swerved to his left in such a manner that he struck the end of the rear bumper of the Henderson truck, which was passing at that moment, but he was unable to avoid striking the left rear of the Williams truck, which had a grain bed on it. As a result of the collision, Mrs. Benning and her daughter, Linda, received injuries from which they died two days later. The prosecuting attorney filed a felony information against Williams, charging him with manslaughter.

The point that has caused us considerable concern is whether the evidence is sufficient to sustain the conviction. After careful deliberation we have reached the conclusion that the evidence is sufficient. The facts are pretty well outlined above. On a dark and misty night the appellant left a heavy, two-ton, unlighted truck, equipped with a wide grain bed, in the middle of one of the travel lanes of a good hard surfaced road. He set out no flares, and had left the truck unguarded for about an hour and a half, when the tragedy occurred. Although, even if it is considered that it was necessary that he leave the truck on the highway unguarded in the first instance, it was a question for the jury as to whether Williams should have returned to the truck as soon as possible to help guard against the very thing that did happen. When he found out that Mr. Malden could not go after the truck immediately, he could have started walking and reached the truck a long time before the collision occurred. And if he had been with the truck when the cars approached at the same time from opposite directions, it is not beyond the range of possibility that he could have given signals that would have saved two lives. He knew the truck was in a dangerous place ; he knew the night was dark and that weather conditions caused poor visibility; and yet, for one and one-half hours, he did nothing to remedy the extremely dangerous situation he had brought about. Ark. Stat. § 41-2209 provides: “Involuntary manslaughter defined.— If the killing be in the commission of an unlawful act, without malice, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter. Provided further that when the death of any person ensues within one (1) year as a proximate result of injury received by the driving of any vehicle in reckless, willful or wanton disregard of the safety of others, the person so operating such vehicle shall be deemed guilty of involuntary manslaughter.” The defendant was charged in the words of the statute.

Appellant contends that the second part of § 41-2209 covers the offense of involuntary manslaughter resulting from the driving of an automobile exclusively; that the first part has no application when the death grows out of driving an automobile; and that the court erred in instructing the jury on doing a lawful act without due caution and circumspection. It is not necessary, however, to discuss this point, because an exception was not saved to the instruction as given. As far back as the year 1915, in the case of Madding v. State, 118 Ark. 506, 177 S. W. 410, the court held that the first part of the statute, which was the only part in effect at that time, applied to the driving of an automobile “with reckless abandon and wanton disregard of the rights of others upon the streets and without a care as to their safety.”

Appellant requested instructions dealing with efficient and immediate cause of the accident, and proximate cause. We think these instructions were covered by other instructions given by the court.

The defendant requested, also, instructions on “misfortune or accident.” There is no evidence in the record to justify any instruction along that line.

Appellant also complains of the court’s refusal to excuse for cause the venireman Breckenridge. On examination by counsel for the defendant Mr. Breckenridge stated that he had an opinion about the case that would take evidence to remove. But on further examination, he stated that he could and would go into the jury box with his mind completely open and try the case solely on the law and the evidence.

The appellant is a Negro. On December 9th, two days before the trial began, he filed a motion to quash the jury panel on the ground that there has been systematic exclusion of Negroes from jury panels in Jackson County and that there was no Negro on the present jury panel. Two days later when the case was called to trial, no action had been taken on the motion. Counsel for defendant orally renewed the motion; it was overruled and exceptions were saved. The court stated: “Since January 1, 1952, the matter of selecting jury commissioners and instructing such commissioners has been the responsibility of this court. In every case, when jury commissioners were called upon to serve by the court, they have been instructed specifically and in considerable detail to the effect that there should be no discrimination on their part in the selection of members of jury panels because of race, color, creed or sex. Of course, - no suggestion has ever been made as to whom should be placed on jury panels, but particular care has been used by the court to instruct these commissioners that they should place on such lists the names of people who were qualified electors and who, in their judgment, were people of good character and possessing such qualifications that in their considered opinions would make good jurors. Embodied in these instructions has been an explanation of the fact that a part of their duty was to carefully consider all of the population of Jackson County and if, in their opinions, there were members of the Negro race who possessed the necessary good character and judgment to qualify them for jury service that it would certainly be proper for them to include them on these lists. During these years it has been the court’s personal observation, and the court takes judicial notice of the fact that frequently names of members of the Negro race have appeared on the jury panel lists, and not only that, but they have qualified and have served as petit jurors during this period of time.” Counsel for the defendant then stated: “We are tendering the proof that there is no Negro on this panel, or these panels; there was one Negro, Willie Booker, on the February, 1957, panel; there were two Negroes, O. A. Porter and John Laird, on the September, 1956, panel; and there were two Negroes, Mack Newton and one other person, on the February, 1956, panel.”

Purposeful and systematic exclusion of the members of any race from jury service is contrary to law, but, as we said in Dorsey v. State, 219 Ark. 101, 240 S. W. 2d 30, ‘ ‘ The burden of showing facts which permit an inference of purposeful limitation is on the defendant. Martin v. Texas, 200 U. S. 316, 26 S. Ct. 338, 50 L. Ed. 497.” In the case at bar the proffered testimony falls far short of showing that there was purposeful or systematic exclusion of Negroes from jury service.

The State introduced as evidence pictures of the scene of the collision. In one of these pictures there is a State policeman’s automobile. We do not see how the automobile in the picture could in any way be prejudicial to the defendant. The width of the road and the width of the shoulders of the road were shown by other uncontroverted evidence. We do not think there was an abuse of discretion by the trial court in admitting the picture in evidence. Southern National Ins. Co. v. Williams, 224 Ark. 938, 277 S. W. 2d 487.

Dr. T. E. Williams, who treated Mrs. Benning and her daughter for the fatal injuries they received in the collision, over objections and exceptions of defendant, was allowed to state the nature of the injuries which resulted in their deaths. The prosecution made no effort to emphasize or dwell on the nature of the injuries for the purpose of arousing emotions of the jury. The doctor ’s testimony as abstracted by appellant is as follows: “Mabel Benning was very severely injured and was in deep shock; she had a compound fracture of the right elbow and of the right ankle; she had a cerebral contusion, cerebral concussions, multiple bruises and lacerations scattered around her body; Linda Schol was in extreme shock, she had cerebral contusions, a comminuted fracture of the forearm, multiple abrasions, lacerations and bruises around her body; Mabel Benning was given the usual shock treatment of glucose and an attempt was made to reduce the fracture as much as possible to help relieve the shock; she was given narcotics for pain and an attempt was made to get her out of shock (Tr. p. 114); she died February 28th at 5:20 P. M. from brain damage; Linda Schol died February 28th at 10:45 P. M. from shock plus brain damage. ’ ’

Of course, it was incumbent upon the State to prove the corpus delicti. Failure to prove the cause of death could be fatal to the State’s case. Cole v. State, 59 Ark. 50, 26 S. W. 377. And, although the State may have had the right to rely on the defendant’s admission in open court that the deaths were the result of the collision, the State was not required to rely on such admission to establish the corpus delicti.

Other points are argued, all of which we have examined carefully, but we find nothing calling for a reversal.

Affirmed.

Harris, C. J., dissents.

Johnson, J., not participating.

Carleton Harris, Chief Justice, dissenting.

I am of the opinion, that because of two errors (in my view) committed during the trial, this case should be reversed and remanded.

Dr. T. E. Williams was called as a witness for the State, and testified relative to the numerous injuries received by Mrs. Benning and Linda Schol. According to his evidence, the injuries to both were very severe, and those received by Mrs. Benning covered most of the body. He mentioned that the bone was protruding through the skin of her elbow, and also her right ankle. Appellant’s counsel had previously in Chambers, made the following admission and objection:

“We concede that Mrs. Benning and the child, Linda Schol, died as a result of the collision within the statutory period. I believe a year is the statutory period, so we admit that fact. We feel that they should not pursue at any length in regard to the gravity of the injuries. We feel, Your Honor, that the State, since we have admitted the death of Mrs. Benning and the death of Linda Schol as a result of this collision, should not be permitted to introduce evidence by Dr. Williams, or anyone else, bearing solely upon the aggravated nature of the injuries, which could only serve to inflame the passions, and not to enlighten the jury as to any fact.”

Also, at the conclusion of Dr. Williams’ testimony, counsel again renewed the objection, and requested the court to exclude this evidence and to instruct the jury to disregard all of the doctor’s testimony except that which showed the deaths of the persons involved. The court again overruled the objection and appellant’s exceptions were noted. The injuries were of an extensive nature, and it is my feeling that this testimony could have influenced the jury in its verdict. The evidence was certainly unnecessary as the prosecution was based solely ■upon the death of Mrs. Benning and Linda Schol, which fact counsel admitted.

I also feel that the admission of State’s Exhibit No. 7, a posed photograph, showing a State Police car parked on the side of the highway, was prejudicial error. The evidence pretty well reflected that the footage between the pavement and a ditch on the right-hand side (facing north), was insufficient to be properly termed a shoulder. The photograph, however, shows the car as resting between the edge of the pavement and this ditch. The State admitted that the two-ton truck owned by appellant, involved in the collision, was wider than the automobile, but stated that the picture was only offered as an aid to the jury in visualizing the width of the side of the highway. I cannot see that it was admissible for any purpose. Evidence had already been offered as to the width between the edge of the pavement and the ditch (7 feet, 1 inch) and it is quite obvious to me that the truck, carrying a large wide bed, could not possibly have parked completely off the highway. Yet, this picture, when viewed by the jury, could have well served as a suggestion that if the trooper could park his car in tluu space, appellant could have done likewise.

For these reasons, I respectfully dissent to the holding of the majority.


source: Caselaw Access Project

author: Carleton Harris, Chief Justice.

license: Public Domain

text:
    Phillips v. Ashby.
    5-1765
    320 S. W. 2d 260
    Opinion delivered February 2, 1959.

      Reid $ Burge, for appellant.

      Taylor S Sudbury, for appellee.
   Carleton Harris, Chief Justice.

On the night of June 11, 1957, a truck belonging to Isaac Ashby, appellee herein, became stuck in the mud on a dirt road near Blytheville. Efforts to extricate the truck only succeeded in miring it deeper, and the Phillips Motor Company was requested to send a wrecker. The wrecker, driven by Carl Allbritton, after picking up Ashby and Olin Little, who was with Ashby, went to the location of the mired truck. In getting into position to extricate the truck from the mud, the wrecker became stuck. Ashby and Little took positions on the left side of the wrecker, back of the cab, and pushed as the driver rocked backward and forward in an effort to release the wrecker from the mud. As the wrecker moved out, Mr. Ashby was struck by some portion of the vehicle along the right knee, causing painful injuries for which he instituted suit. The complaint alleged that

“defendants’ servant and employee, Carl Allbritton, and while in the employ of the defendants, and who knew plaintiff’s position, suddenly negligently and carelessly greatly increased the supply of gasoline, causing the said wrecker to suddenly lurch forward.

That when the defendants’ wrecker suddenly and without warning lurched forward, its left rear bumper struck this plaintiff behind his right knee and right heel, bruising and cutting his leg and breaking his right heel.”

Appellants answered, first denying any negligence, pleading contributory negligence, and further pleaded that appellee assumed all risks incidental to the undertaking. On trial, the jury returned a verdict in appellee’s favor in the amount of $7,200, for which amount the court rendered judgment. From such judgment, comes this appeal.

For reversal, three points are urged, the first being that the trial court erred in not directing a verdict for appellants. Under onr view, as hereinafter set ont, a discussion of other alleged errors is unnecessary.

The sole charge of negligence against Allbritton has previously been quoted from the complaint. According to the evidence, the back wheels of the wrecker mired down as Allbritton sought to get into position to extricate the truck. Little and Ashby walked up to the driver ’s side of the door, and took hold of the wrecker to help get it out. According to Ashby, Little “* * # was right at the door. I was right behind him with my hands on the door right behind the cab.” After rocking back and forth two or three times, the wrecker came out. “To tell the truth, he was rocking. He hit me just like that, (snaps fingers) I was laying on the ground. * * * Q. Did this truck slide any? A. It was possible. Like I said, it was like that, (snaps fingers) I was on the ground.” The witness then testified that he doubted that the wrecker slid sideways more than six inches. When asked if his foot slipped, he replied, “I don’t know. It happened so quick, I don’t know.” Ashby was struck on the side of the right knee. He stated that he was struck by the bumper, or, as he described it, the “draw bar.” According to his evidence, the occurrence took place somewhere between 9:30 and 10:00 o’clock on a clear night, and Allbritton could have seen him “without any doubt.” Appellee testified that he heard somebody say, “Keep rocking, and I believe we can get it out,” but he did not know whether the remark was made by Allbritton or Little. On cross examination, he admitted that in trying to get his own truck out before calling the wrecker, he had rocked it and accelerated the engine, but “He rocked his more than I did mine. I accelerated mine a little and couldn’t get out.” Ashby admitted that to get automobiles and trucks out of mud, it is necessary to accelerate the motor, as he stated, “to a certain extent.” His testimony reflects that no request was made by All-britton for aid in getting out of the hole; that he (Ashby) did not tell the driver he was helping; that he chose his own position from which to do the pushing, and had already observed the “draw bar” at the back.

Little’s testimony was very similar. “Mr. Ashby and me went by the side of him. We went to rock it. Mr. Ashby and me said we were going to rock it ont and he said, ‘I believe we can.’ ” He testified that he took a position on the south side of the truck, placing his hand on the front part of the cab “where the glass rolled down,” and that appellee was right behind him. The witness stated that the driver of the wrecker could see him, and could have seen Ashby if he had looked; that the vehicle was rocked backward and forward two or three times. He heard no request from Allbritton for Ashby to push on the wrecker.

Allbritton testified that the wrecker became mired in the same mud hole as the truck; that he, quoting, “began rocking my truck backwards two or three times and accelerating it fairly heavy in order to get it out of the mud.” He testified he did not ask anyone to help him, and that Ashby did not say anything to him about helping or pushing. His testimony reflects that upon pulling loose from the mud, he went straight ahead.

We are unable, from the record, to find any negligence on the part of Allbritton, and of course, such negligence must be shown before Ashby is entitled to recover. The testimony of all parties reflects that the wrecker was driven straight ahead when coming out of the mud hole, and it seems remarkable that the vehicle, with its wheels spinning in slick gumbo mud, did not slide sideways more than six inches. Admittedly, appellee took up his position of his own own accord, without any direction from the driver, and in fact, the undisputed evidence shows that no request for help was made. In Saliba v. Saliba, 178 Ark. 250, 11 S. W. 2d 774, 61 A. L. R. 1348, and Blakemore v. Stevens, 188 Ark. 755, 67 S. W. 2d 733, recoveries were allowed to parties who were injured while assisting in extricating vehicles from mud holes, but the circumstances in those cases were far different from those in the case at bar. For instance, in the Saliba case, the proof showed that the injured plaintiff was invited to get behind a stuck car and push it; that while so engaged, the driver suddenly put the car in reverse, and plaintiff was injured when the car rolled backwards. In the Blakemore case, plaintiff was asked to help in pushing a car out of the mire, and stationed himself on the right hand side of the car in a position to assist. The car was being pushed backwards, and without warning, the defendant driver suddenly cut the steering wheel to the left, throwing the right front wheel from under the right front fender, and the car, in its backward motion, ran over plaintiff. In the case before us, the only alleged negligence is “suddenly, negligently, and carelessly greatly increased the supply of gasoline causing the said wrecker to lurch forward.” Common experience teaches that to get out of a mud hole, it is necessary to accelerate the engine. Additional power is needed. The method used by Allbritton would seem to be the usual method of those engaged in extricating a vehicle from mud and slime, i. rocking back and forth, and accelerating the motor in an attempt to get sufficient momentum to come out of the hole. Of course, once the wheels get free of the mud and hit firm ground, the vehicle moves at a faster pace. We find no evidence that appellants’ driver committed any unusual act which would result in taking appellee by surprise, and thus occasion the injuries complained of.

We are of the opinion that the trial court should have directed a verdict for appellants.

Reversed and dismissed.

Johnson, J., dissents.

       The ligaments were badly torn in the knee, ankle fractured, and the heelbone cracked.

       Evidently referring to Allbritton.


author: J. Seaborn Holt, Associate Justice. Ed. F. McFaddin, Associate Justice

text:
    Baxter v. Young.
    5-1747
    320 S. W. 2d 640
    Opinion delivered February 2, 1959.

      John F. Gibson £ Smith £ Smith, for appellant.

      Pat PL. Mullís £ Lloyd B. McCain, for appellee.
   J. Seaborn Holt, Associate Justice.

This cause of action arose in 1952 when appellants took possession of the land involved. David and Corah Young (brother and sister) inherited the 80 acres of land here from their grandmother, Melvina Reed, who died intestate in 1938. They were her sole surviving heirs and each inherited an undivided one-half interest in the land as tenants in common. David did not live on the land after his grandmother’s death. He moved to different parts of the country, finally locating in Chicago and there he saw his sister, Corah, in 1955 which was the second time he had seen her since his grandmother’s death. Corah, who was living on the farm with her grandmother when she died, continued on the farm and operated it up to 1952, when she executed a quit-claim deed to the farm to John Baxter. During the time that she operated the farm, she borrowed money with which to operate and make small improvements and in 1948 executed a mortgage on the property to John Baxter to secure the payment of a $300 promissory note due November 1, 1948, and other advances if any. This mortgage was recorded March 6,1949, and recited that, “Corah Young, only surviving heir of William Reed, Deceased, and all of which property said grantor warrant to be free from incumbrances and not subject to any adverse claim.” At all times that Corah did business with Baxter she represented to him that her brother, David, was dead and that she was the sole owner of the property.

From 1950 through 1956 the taxes were paid by Mr. Baxter or the Baxter Land Company.

Following the above mortgage, Corah became further indebted to Baxter in the total amount of $2,525.13 and on January 7,1950, to avoid a mortgage foreclosure, she executed to Baxter a quit-claim deed purporting to convey the entire title to the land. She remained in possession for the years 1950-1951 inclusive, and the deed was recorded December 13, 1951.

On February 28, 1952 Baxter conveyed the land to the Baxter Land Company, a family corporation. In February 1952, Corah moved from the land and surrendered possession to the Baxter Land Company which immediately went into possession and has claimed ownership since.

David, appellee, claimed that he had no notice of any adverse claim to his land until 1955 when his sister saw him in Chicago. He claims an undivided one-half interest either as a tenant in common with his sister, or as tenant in common with the defendants, that the quit-claim deed to Baxter which purports to convey the fee should be re-formed to show that it does not affect his one-half interest, that the deed from Baxter to the Baxter Land Company insofar as it affects him should be cancelled, that the title to his one-half interest should be quieted, and for an accounting of rents and profits of the mortgagee in possession for the years 1952, 1953, 1954, 1955 and 1956.

The appellants, on the other hand, deny that David has any interest in the land and is now barred from asserting his rights thereto by estoppel, abandonment, their adverse possession, laches and the statute of limitations, or should it be found that David was not estopped, then that appellants should be decreed to have a lien upon the full interest in said land to secure full payment of their mortgage.

The present suit was filed November 12, 1956 and on a trial March 20, 1957, after an extended hearing, the court found that appellee, David Young, and appellant, Baxter Land Company, are tenants in common of the 80 acre tract involved, each owning a one-half undivided interest therein, that David was not barred by laches, estoppel, limitations or adverse possession from asserting his rights to his one-half interest in the property and further, awarded David $898.25 which represents one-half of the rents and profits from the land while in possession of appellants for the years 1952, 1953, 1954, 1955 and 1956 inclusive.

For reversal appellant relies on the following-points :

“ (1) David Yonng has slept on his rights too long and is, therefore, absolutely barred by laches and limitations from any relief whatever . . .

(2) Finding- that his sister had lost the lands, David conspired with Corah to try to help her salvage something from innocent purchasers, — the defendants.

(3) David did not come into court with clean hands . . .

(4) If, . . . David should be entitled to recover anything whatever, the lower court used the wrong formula in arriving at a rental basis of the lands.”

On the record presented we have concluded that the trial court was correct in holding that David (appellee) was not estopped to claim his one-half undivided interest in this 80 acre tract as a co-tenant, by abandonment, laches, adverse possession, estoppel or for any other reason. It is undisputed that David and Corah inherited and held this land as tenants in common as the sole surviving heirs of their grandmother when she died intestate in 1938. We think the evidence falls far short of showing- abandonment on the part of David or that he was in any manner barred from asserting his rights. The evidence showed that David permitted his sister, a widow, to occupy the land so that she could better support herself. There is no evidence that he ever executed a deed or other instrument affecting- his title, or that he made any statements indicating his abandonment of the property. His only act, or acts, that might indicate abandonment was his non-action during the approximately 18 years he was off the land, paying no taxes, collecting no rents or profits, exercising- no control or contributing to any improvements.

“At the common law, which is in force in this state, the title to real property is not lost by abandonment, unless the abandonment is accompanied by circumstances of estoppel and limitations, and this without regard to the formality of abandonment, if it was short of a legal deed of conveyance; the title being in no wise thereby affected nor the owner thereafter prevented from re-entering and ejecting any who had entered into possession in reliance upon the abandonment” — Carmical v. Arkansas Lumber Co., 105 Ark. 663, 667, 152 S. W. 286.

“Mere lapse of time does not dissolve a co-tenancy — ” Halloway v. Berenzen, 208 Ark. 849, 852, 188 S. W. 2d 298. “The possession of some of the joint tenants, or tenants in common, is the possession of all, and continues to be such until there is some act of ouster sufficient in itself to give notice that those in possession are claiming in hostility to, and not in conformity with, the rights of others having interests in the property. One in possession is presumed to hold in recognition of the rights of his cotenants.” Newman v. Newman, 205 Ark. 590, 595, 169 S. W. 2d 667. “A number of presumptions and inferences are indulged in connection with the relation of co-tenancy. Until an actual ouster is shown, the law presumes that the possession of one co-owner is the possession of all, — ” 14 Am. Jur. Cotenancy, Sec. 102.

In order for appellants to prevail on their claim of adverse possession for seven years, they must show, in addition to their admitted adverse possession for four years and nine months by virtue of their deed by Corah Young to them in 1952, an additional two years and three months needed to complete the seven years, and to do this, they seek to “tack on” this two years and three months the possession of Corah Young and her co-tenant, David, under the claim that her possession was also adverse to that of David. To do this appellants had to prove actual notice to David that she (Corah) was so claiming adversely or that her conduct was so open and notorious that she was claiming adversely to him that he should have known of her claim. This, we think as indicated, she failed to do.

During this period of two years and three months, which appellants seek to tack on, the relationship of brother and sister existed and for this reason, as we stated in Staggs v. Story, 220 Ark. 823, 827, 250 S. W. 2d 125, “In the present case, on account of the family relationship of the parties stronger evidence, of adverse possession of appellants to the disputed strip . . . was required than in those cases where no such relationship existed. Appellants have failed to meet this burden. ’ ’

As to appellant’s contention that David stood by, did nothing, and is estopped to assert his rights, what we have said above applies with equal force to this contention. We find it to be without merit. Corah was rightfully in possession. She was free to mortgage her interest in the land and use the money as she saw fit. She was required to pay the taxes, keep the property in a state of repair and was authorized to convey her interest in the land in satisfaction of a mortgaged debt. Her right to mortgage and convey extended only to her one-half undivided interest. — Magnolia Grocer Company v. Clayton, 179 Ark. 661, 17 S. W. 2d 877.

On appellant’s contention that appellee is barred by laches, little need be said. “Laches, in legal significance, is not mere delay, but delay that works disadvantage to another. So long as parties are in the same condition, it matters little whether he presses a right promptly or slowly within limits allowed by law; but when, knowing his rights, he takes no step to enforce them until the condition of the other party has in good faith become so changed that he cannot be restored to his former state, if the right be then enforced, delay becomes inequitable, and operates as estoppel against the assertion of the right. The disadvantage may come from the loss of evidence, change of title, intervention of equities, and other causes; but when a court sees negligence on one side, and injury therefrom on the other, it is a ground for denial of relief.” Seawood v. Ozan Lumber Company, 221 Ark. 196, 202, 252 S. W. 2d 829. We fail to find any changes in the condition or relation to the parties here to the property which would make it inequitable to enforce appellees claim.

There appears to he no loss of title, intervention of equities or change of relation of the parties and we hold that the defense of laches is therefore not applicable. We find no evidence in this record of a conspiracy between Corah and David as contended in appellant’s point two above, nor do we find sufficient evidence to support appellant’s claim in point three above that David did not come into court with clean hands.

We have concluded, however, that the court erred in so much of the decree directing that David should be allowed recovery for the rents and profits from operating the land for the years 1952 and 1953, for the reason that such rents and profits had not accrued within the three years next before the filing of the present suit.

Ark. Stats. 1947, Sections 34-1424-1425, known as the “Betterment Act,” provide: (34-1424) “Assessment of value of improvements — Improvements exceeding mesne profits and damages — Judgment.—The court or jury trying such cause shall assess the value of such improvements in the same action in which the title to said lands is adjudicated; and on such trial the damages sustained by the owner of the lands from waste, and such mesne profits as may be allowed by law, shall also be assessed, and if the value of the improvements made by the occupant and the taxes paid as aforesaid shall exceed the amount of said damages and mesne profits combined, the court shall enter an order as a part of the final judgment providing that no writ shall issue for the possession of the lands in favor of the successful party until payment has been made to such occupant of the balance due him for such improvements and the taxes paid; and such amount shall be a lien on said lands, which may be enforced by equitable proceedings at any time within three (3) years after the date of such judgment.” And Section 34-1425, “Limitation on recovery of mesne profits. — In recoveries against such occupants no account for any mesne profits shall be allowed unless the same shall have accrued within three (3) years next before the commencement of the suit in which they may be claimed.”

This court, in the case of McDonald v. Rankin, 92 Ark. 173, 122 S. W. 88, in construing these sections (which were then sections 2755-2756, Kirby’s Digest) in fixing the rights of the parties thereunder, said: “As is said to the case of Brown v. Nelms, 86 Ark. 368, 112 S. W. 373, the betterment act is ‘one to adjust equities between the owners of the lands and persons who have occupied the same under color of title, believing themselves to be the owners — bona fide occupants. * * # In other words, when the occupant holds in good faith under color of title the owner can recover the land and mesne profits for three years, and the occupant can recover the value of his improvements and amount of taxes.’ ”

‘ ‘ These are the rights of the parties as fixed by this statute. The statute says that the owner shall be allowed the rents of the lands that shall have accrued within three years next before the commencement of the suit. It deprives the true owner of all the mesne profits that accrued prior to that time, but it gives to him the rents on the lands in the exact condition in which they are for the period subsequent to three years next before the commencement of the suit.”

We therefore affirm as modified and remand for further proceedings consistent with this opinion.

McFaddin, J., concurs.

Robinson, J., dissents.

Ed. F. McFaddin, Associate Justice

(concurring). I concur in the result reached by the majority, but I am dubious concerning the authority cited for the modification. The majority says that Young is entitled to recover rent for only three years next before the filing of the suit because of § 34-1424 et seq., Ark. Stats., known as the “Betterment Act.” I have never considered the Betterment Act to be applicable in an accounting between co-tenants, or between those standing in such a relationship as appellant and appellee occupied in the case at bar.

My reason for limiting Young to rent for only three years is because Young’s suit is like any other action to recover rents, and is governed by the 3-year statute of limitations, which is § 37-206, Ark. Stats. In 54 C. J. S. 37, “Limitation of Actions,” § 124, the text states that the general principle — that limitations begins to run when a complete cause of action accrues — has bee,n applied to proceedings for accounting; and in Footnote 8 the text lists cases from Georgia and Illinois as applying this rule of limitations to accounting between co-tenants. These Georgia and Illinois cases support the text: George v. Bullard, 173 S. E. 920; Chambers v. Schall, 70 S. E. 2d 463; Brown v. Brown, 75 S. E. 2d 13; and Fyffe v. Fyffe, 11 N. E. 2d 857.

Because of my doubt as to the applicability of the Betterment Act, I am compelled to concur; since I think the applicable statute is the rent statute, which is § 37-206, Ark. Stats.


author: Ed. F. McFaddin, Associate Justice.

text:
    Scott v. Greer.
    5-1749
    320 S. W. 2d 262
    Opinion delivered February 2, 1959.

      Bruce Bennett, Atty. General, John Haskins, Asst. Atty. General; Dowell Anders, Highway Dept. Atty. & Wm. J. Smith, for appellant.

      Wright, Harrison, Lindsey & Upton, by George E. Lusk, Jr., for appellee.
   Ed. F. McFaddin, Associate Justice.

This appeal necessitates a study and determination of the meaning of certain portions of the Arkansas State Highway Employees’ Retirement System Act, being Act No. 454 of 1949, as amended by Act No. 403 of 1953, being now found in §§ 76-1901 et seq. Ark. Stats. Appellee, Greer, filed this proceeding against the appellants, who are the Trustees of the said Arkansas State Highway Employees’ Retirement System (hereinafter called “Retirement System”) to compel appellants to award Greer his claimed retirement pay. The appellants urged that Greer was not entitled to retirement pay because of the matters hereinafter stated. The Circuit Court granted Greer his prayed relief; and this appeal ensued.

The facts in this case are not disputed: Mr. Greer was born August 26, 1882; he was continuously employed by the Arkansas State Highway Department (hereinafter called “Highway Department”) from January 20, 1947 to December 31, 1957. During all of such period he received a salary in excess of $2,400.00 per year. The said Highway Retirement Act became effective on July 1, 1949; and participation was compulsory for Mr. Greer because of his salary scale. Deductions were withheld by the Highway Department from Mr. Greer’s salary and paid to the Retirement System at all times from July 1, 1949 to December 31, 1957, or a total of 8y% years. Furthermore, under the terms of the said Eetirement Act, employees with service antedating the effective date of the Act were given the option to pay into the Eetirement System a calculated amount for the period of service in the Highway Department previous to the beginning of the Eetirement Act; and Mr. Greer took advantage of that provision and paid the Eetirement System $251.24 as the calculated amount to cover his Highway service employment from January 20, 1947 to July 1, 1949, which was 2.46 years. Thus, on December 31,1957 Mr. Greer had paid into the Eetirement System the correct amount to cover a total of 10.96 years, being 2,46 prior to July 1, 1949 and 8.50 after July 1, 1949.

On May 1,1957 the Highway Department, acting under authority not here questioned, decided to retire on December 31,1957 all employees 75 or more years of age on said last mentioned date. Mr. Greer, having been born on August 26, 1882, was, of course, over the age of 75 years on December 31, 1957, and was, therefore, retired from employment under said decision of the Highway Department.

The said Eetirement Act provides in § 76-1911 (a) that a member of the Highway System may voluntarily retire and be eligible for retirement benefits at the age of 65 if he has ten years of creditable service. When Mr. Greer applied for retirement benefits, the appellants, as Trustees of the Eetirement System, discovered that under the provisions of the law, Mr. Greer was ineligible for retirement benefits; and he was tendered the sum of $1,531.91, which was the total amount that he had paid into the System, including interest. Mr. Greer refused the tender and instituted this litigation with the result previously stated. So the question is, whether Mr. Greer is entitled to retirement benefits from the Eetirement System.

Estoppel. At the outset, we emphasize that no element of estoppel enters into this case: because the appellee’s counsel stated in oral argument before this Court that he had not pleaded estoppel in the lower Court and was not relying on estoppel in any way in this case. This admission and concession in this Court renders it unnecessary for us to consider any matter of estoppel and leaves us to the unfettered determination of the meaning of said Betirement Act.

The Claims Of The Parties. Mr. Greer claims that he is entitled to the retirement benefits because of the first sentence of § 76-1911 (a) Ark. Stats., which reads: “A member may retire voluntarily at the age of 65, or during any year thereafter, until the age of compulsory retirement has been attained, provided such member has a minimum of 10 years creditable service in the Arkansas State Highway Department.”

The appellants defend against Mr. Greer’s claim by pointing to the last sentence of § 76-1911 (a) Ark. Stats., which reads: “Betirement from the System shall be compulsory to all members on July 1st following their 70th birthday, except that any employee who is 70 years or more of age as of the effective date of this act shall not be excluded from its benefits.” In making their claims under the last quoted sentence, the appellants point out: (a) that the effective date of the Act was July 1, 1949, and that Mr. Greer was not 70 years of age at that time; (b) that Mr. Greer became 70 years of age on August 26, 1952, and that under the last quoted sentence he was compulsorily retired on July 1, 1953 from the “Retirement System,” as distinct from employment in the Highway Department; (c) that under the plain wording of the quoted sentence, Mr. Greer was not entitled to continue in the Betirement System after July 1, 1953; (d) that on that date he had only 6.46 years of service credit (being 4 years from July 1, 1949 to July 1, 1953, and 2.46 years for service credit prior to July l, 1949); and (e) that through error of the bookkeeping section of the Highway Department, deductions were withheld from Mr. Greer’s monthly salary and paid to the Betirement System, the return of all of which deductions, with interest thereon, has been tendered to Mr. Greer.

In rebuttal to tbe defense of tbe appellants, Mr. Greer points out tbe definitions found in § 76-1901 Ark. Stats, as follows:

“ (e) ‘Employees’ shall include all employees of the Arkansas State Highway Department whose compensation is or was payable on an hourly, monthly, or annual basis by the State Highway Department, including employees of the State Highway Department whose salaries are paid or reimbursed in whole or in part from Federal funds . . .

“(i) ‘Prior Service’ means all service as an employee of the Arkansas State Highway Department prior to the date of the establishment of the System . . .

“(1) ‘Creditable Service’ means the current service of the member plus such portion of Prior Service time for which contributions have been made or elected to be made by the member. Retirement benefits shall be computed upon the Creditable Service of the member . . .”

Mr. Greer also points out that § 76-1908 provides how membership in the System may be terminated; and claims that the sentence in § 76-1911 (a) relied on by the appellants, relating to compulsory retirement, means those who retire on retirement benefits.

It is clear from these contentions, and from a careful study of the Retirement Act, that “System” means one thing, and “Highway Department Employee” means another thing: that is, a person may be employed by the Highway Department and draw pay as such employee and still not be a member of the Retirement System. For example, under § 76-1907 an employee earning less than $2,400.00 per year has the option to come under the System, but is not required to. It is appellants’ contention that on July 1st following his 70th birthday, every employee of the Highway Department was compulsorily retired from the Retirement System, even though such person continued to be employed by the Highway Department. We can see no answer to this last stated contention of the appellants.

It is true that retirement acts and pension acts are to be liberally construed to effectuate their humane purposes. We so held in Looper v. Gordon, 201 Ark. 841, 147 S. W. 2d 24. But it must also be recognized that the State has the right to prescribe the terms and conditions under which persons may come under, or be excluded from, the benefits of a retirement system. As stated in 40 Am. Jur. 980, “Pensions” § 23: “The right to a pension depends upon statutory provision therefor, and the existence of such right in particular instances is determinable primarily from the terms of the statute under which the right or privilege is granted. The right to a pension may be made to depend upon such conditions as the grantor may see fit to prescribe.”

When we see the respective claims, defenses and rebuttals as stated, it appears that there is a conflict between the definition sections relied on by Mr. Greer, and the sentence in § 76-1911 Ark. Stats. relied on by appellants, which sentence is: “Retirement from the System shall be compulsory to all members on July 1st following their 70th birthday, . . .”

Which section governs? That is the problem; and in solving the problem we are not without certain rules of statutory construction. One of these rules, recognized and applied by this Court for many years, and applicable here, is: “Where general terms or expressions in one part of a statute are inconsistent with more specific or particular provisions in another part, the particular provisions will be given effect as clearer and more definite expressions of the legislative will.” We have quoted the above rule from Hodges v. Dawdy, 104 Ark. 583, 149 S. W. 656. It was also recognized in Wiseman v. Ark. Util. Co., 191 Ark. 854, 88 S. W. 2d 81. In 50 Am. Jur. 371 “Statutes” § 367, the text states: “It is an old and familiar principle . . . that where there is in the same statute a specific provision, and also a general one which in its most comprehensive sense would include matters embraced in the former, the particular provision must control, and the general provision must be taken to affect only such cases within its general language as are not within the provisions of the particular provision.” To the same effect see also 82 C. J. S. 720; and Crawford on “Statutory Construction” § 189.

When we view the conflict between the general definition of terms and the specific provision in § 76-1911 (a) Ark. Stats, as relied on by the appellants, we reach the conclusion that the Legislature definitely prescribed that a Highway Department employee, though he might continue to be employed after July 1st following his 70th birthday, was nevertheless compulsorily retired from the Retirement System on July 1st following his 70th birthday. Under that view, it follows that on July 1, 1953, when Mr. Greer was compulsorily retired from the Retirement System he had only 6.46 years of creditable service; so he was not eligible to pension. However, under § 76-1912 (c) Ark. Stats, he is entitled to the return of all of the money that he had paid into the System, together with interest; and the record shows that such amount was tendered to Mr. Greer.

It, therefore, follows that the judgment is reversed and the cause dismissed, upon payment of the tendered amount.

Johnson, J., dissents.

       It was stated by both sides in the oral argument that Act 454 of 1949 was not copied from any other State, but is rather a composite of various acts of other jurisdictions. A study of the legislative history of the Act No. 454 of 1949 shows that it passed both Houses of the Legislature without any amendment, so the Act was passed just as it was introduced.

       Mr. Greer’s proceeding is for writ of mandamus; but all parties concede that it may be treated as certiorari, or action for declaratory judgment, or any other appropriate proceeding to obtain a decision of the case on the merits; so we forego any decision as to what might be the correct proceeding in a situation such as the one here.

       In connection with estoppel, we call attention to the case of Powell v. Board of Commissioners, 210 S. C. 136, 41 S. E. 2d 780, 1 A.L.R. 2d 330.

       For cases construing various pension plans, see annotation in 42 A.L.R. 2d 461: “Rights and liabilities as between employer and employee with respect to general pension or retirement plan.”


author: George Rose Smith, J.

text:
    Hot Spring County v. Fowler.
    5-1722
    320 S. W. 2d 269
    Opinion delivered February 2, 1959.

      W. R. Thrasher $ Bill Demmer, for appellant.

      Wendell O. Epperson S Joe W. McCoy, for appellee.
   George Rose Smith, J.

Tbis is a condemnation case in which the State Highway Commission called upon the county court to provide the right of way for the rehabilitation of Highway 67 in Hot Spring county. Ark. Stats. 1947, § 76-510. The appellees, Carl Fowler and his wife, filed a claim against the county for damages of $6,000. The county court denied the claim, as excessive, but in the circuit court the appellees were awarded damages of $4,150. The sole question on appeal is whether the county’s plea of limitations should have been sustained.

On April 10,1956, the county court entered an order condemning the right of way in accordance with the plans of the Highway Commission. The landowners did not originally have notice of the order, but the Fowlers’ land was actually entered in April or May of 1956. In those months the Highway Department removed the Fowlers’ fence along the old highway, cleared the right of way for the widening of the roadbed, and erected a new fence farther back on the Fowlers’ property. The plans contemplated that the grade of the highway would be lowered, and this grading was completed in October, 1956. The new pavement was finished in September of 1957, and the appellees filed their claim in the county court on November 19,1957. The question is whether the claim is barred by the one-year statute of limitations. Ark. Stats., § 76-917.

This statute has been construed in a number of eases. Although it provides that the time runs from the date of the county court order, we have held that when, as here, the landowner is not given notice of the entry of the order, the time runs from the actual taking of the property. Greene County v. Hayden, 175 Ark. 1067, 1 S. W. 2d 803. In a more recent case, State Highway Com’n v. Holden, 217 Ark. 466, 231 S. W. 2d 113, it was indicated that the taking occurs when the owner can no longer use his land for its normal and natural purposes.

If these cases are controlling, the appellees’ claim was filed too late. By May of 1956 their boundary fence had been moved back and the new right of way had been cleared. From that time on the Highway Department’s possession was exclusive, but the claim was not filed until more than seventeen months later.

In seeking to avoid the statutory bar the appellees present a twofold argument. First, it is insisted that the statute did not begin to run until the exact extent of the appellees’ damage could be ascertained. Counsel would limit the effect of our prior holdings to the sitúation in which, the county simply takes a particular tract of land without damaging the rest of the owner’s property. An effort is made to distinguish the case at bar on the ground that the appellees suffered consequential damage from the lowering of the grade, and that loss could not be determined with complete certainty until the pavement had been finished and the Highway Depártment had provided an access road to the appellees’ land.

This distinction is not supported by our earlier cases and is not sound law. Uncertainty about the extent of one’s damage is not a basis for staying the operation of the statute of limitations. In personal injury cases, for instance, juries often make awards for future pain and suffering or for a loss of earning power. In Field v. Gazette Pub. Co., 187 Ark. 253, 59 S. W. 2d 19, the plaintiff’s cause of action for lead poisoning was barred even though the nature of the malady and its injurious effects could not be immediately determined.

It is a familiar rule that, when land is damaged by a nuisance of a permanent character, the loss is original and must be fully compensated in a single action. “But it may be added that the fact that the extent of the injury is difficult to determine, or its ascertainment is inconvenient or expensive, does not prevent the injury from being original so as to permit recoveries for recurring injuries.” Davis v. Dunn, 157 Ark. 125, 247 S. W. 793. A narrow exception to this principle was recognized in Arkebauer v. Falcon Zinc Co., 178 Ark. 943, 12 S. W. 2d 916, but that exception is not pertinent here.

When the appellees’ land was taken in May of 1956 the extent of their eventual loss could have been demonstrated with much more accuracy than is possible in many cases involving contracts or torts. The record shows that the Highway Commission’s plans were detailed, embracing a profile of the rehabilitated road and topographical information about the old and new rights of way. Even the physical grading was completed more than a year before the claim was filed. It does not appear that the proof of damage would have involved any serious difficulties whatever, much less such insurmountable obstacles as to justify a rule that would indefinitely postpone the running of limitations. It goes without saying that a substantial change in the Commission’s plans, resulting in increased injury to the landowners, would have constituted a separate taking, as to which the statute would run anew.

Second, it is asserted that the county is estopped to rely upon the defense of limitations. Fowler testified that in the spring of 1956 he had a conversation in front of his house with the county judge. Judge Wallace stated that there would be someone to settle with Fowler for his damages, and also: “I would wait until the highway is completed before you try to settle with them. You don’t know how much damage they are going to do, and I don’t know, and you have plenty of time after the road is completed.” Fowler says that he relied on these statements in not filing his claim promptly.

This testimony is insufficient to give rise to an estoppel. It does not appear that Judge Wallace promised that the county would not plead the statute; he was merely mistaken in his understanding of the law. An estoppel must generally be based upon a material statement of fact; an erroneous expression of opinion about a rule of law does not usually result in an estoppel. Bigelow on Estoppel (6th Ed.), p. 634. In the leading-case of Andreae v. Redfield, 98 U. S. 225, 25 L. Ed. 158, both the collector of customs and the Secretary of the Treasury mistakenly assured the plaintiff that the presentation of his claim to the auditor would prevent the running of the statute of limitations. Despite the plaintiff’s reliance upon these assurances the court held that the collector was not estopped to plead the statute. See also Hilliard v. Pennsylvania R. Co., 6th Cir., 73 F. 2d 473.

It must also be remembered that the statute requires that the claim be presented to the county court. Ark. Stats., § 76-917. The county judge is not synonymous with the county court. We have held that a contract made by tbe county judge alone, without an order of the county court, is not binding upon the county even though the other party to the agreement has performed his part of the bargain. Rebsamen, Brown & Co. v. Van Buren County, 177 Ark. 268, 6 S. W. 2d 288. If the county judge cannot impose liability upon the county by a formal written contract we do not think it can be said that he can bind the county by a casual conversation in the street.

Reversed and dismissed.

Johnson, J., dissents.


text:
    Kerr v. Walker.
    5-1725
    321 S. W. 2d 220
    Opinion delivered February 2, 1959.

      Norton & Norton, for appellant.

      Harold Sharpe, for appellee.
   George Rose Smith, J.

In 1952 Walker employed Kerr to manage Walker’s insurance agency at Forrest City for a term of five years. Under the contract Kerr was to receive a weekly salary and an annual bonus. At the end of the first year the parties disagreed about how the bonus should be computed. Kerr eventually filed this suit to recover $3,018.41 as his bonus, and Walker then notified Kerr that he was discharged. The chancellor awarded Kerr $242.66 as his bonus and $600.00 as termination pay that accrued upon his discharge without cause. Both parties have appealed.

The principal issue, that of computing the bonus, is presented by Kerr’s direct appeal. In the trial court an accountant was appointed as a master in chancery, to determine the profits of the business during the year in question, and there is very little dispute about the figures that enter into the calculation of the bonus. Instead, the problem concerns the method of calculation and hinges upon the correct interpretation of this paragraph in the contract of employment:

“First party [Walker] agrees to guarantee second party [Kerr] a weekly salary of Seventy ($70.00) Dollars per week and at the end of the first year, and each consecutive year thereafter during the term of this contract, first party further agrees to pay to second party a bonus based on Thirty (30%) per cent of the net income or profit of said Walker Insurance Agency, less the guaranteed salary as above set out. It is understood and agreed between first party and second party that the net income or profit of said Walker Insurance Agency shall mean the commissions earned through the sale of insurance, less actual operating expenses of the agency.” (We have italicized the pivotal clause.)

The question is, what is the guaranteed salary to he subtracted from? Walker contends, and the chancellor held, that the salary is to be applied as a credit against 30 per cent of the net profits (these profits being determined without a deduction of the guaranteed salary as an operating expense), so that the bonus represents the difference between the guaranteed salary and 30 per cent of the profits. Under this construction of the agreement Kerr ultimately receives either the fixed salary or 30 per cent of the profits, whichever is greater.

Kerr contends that the italicized clause in the contract means only that the salary is to be deducted from the net income, as an operating expense, before the bonus of 30 per cent is computed. Under this construction the bonus is in effect added to the salary, with the result that Kerr would receive altogether more than 68 per cent of the agency’s net income for the year in question. Alternatively, Kerr asks that the contract be reformed if its language should be found not to have the meaning that he attributes to it.

Kerr relies heavily upon the testimony of Jack P. West, the attorney whom the parties jointly employed to prepare the written contract. West, having originally obtained his information from Kerr alone, prepared a preliminary draft of the agreement. He then called the parties together and read the draft to them, explaining it paragraph by paragraph. He states that when he read the paragraph about Kerr’s compensation the parties said that they understood it and that it was what they wanted. Over Walker’s objection West testified that the salary was to be deducted from the net income, with the bonus being computed upon the remaining amount.

We do not regard West’s interpretation of the contract as competent evidence either to explain an ambiguity or to afford a basis for reformation. It is true that prior negotiations between the parties are admissible to show that ambiguous language in the contract was intended to have any particular meaning that the words will reasonably bear, or, if that particular meaning cannot be assigned to the language, to show a -mutual mistake that requires a reformation. Best., Contracts, §§ 242 and 238 (c); Ben F. Levis, Inc. v. Collins, 215 Ark. 172, 219 S. W. 2d 762. But such testimony must -relate to an understanding that was common to both parties; it is not permissible to show the uncommunicated subjective interpretation that one party or the other placed upon the language of the agreement. Best., Contracts, § 230; Stoops v. Bank of Brinkley, 146 Ark. 127, 225 S. W. 593.

Although West testified that he explained the provisions of the contract, he does not say that he outlined the formula to be followed in the computation of the bonus. Both Kerr and Walker state that in their negotiations they did not discuss the mechanics of calculating the bonus. We do not see how the parties, without such a discussion, could have had a common understanding of the exact point now presented for decision. Since it does not appear that the attorney’s interpretation of the paragraph in controversy was made known to Walker, it follows that the attorney’s testimony represents nothing more than his construction of the agreement, which is inadmissible.

Disregarding West’s testimony, we are limited in our study to the bare language of the agreement. Persuasive arguments are made by both sides, but we are inclined to believe that the chancellor’s view is the more reasonable one. To begin with, it is pretty clear that the contract would have had the meaning that Kerr attributes to it if the italicized clause had been wholly omitted. Walker would then have undertaken to pay “a bonus based on Thirty (30%) per cent of the net income or profit” of the agency. In that case it could hardly be supposed that the fixed salary would not be deducted as an operating expense, for it would be next to absurd to give an employee a bonus upon Ms own salary. Thus the italicized clause adds nothing to the contract unless we give it the meaning that Walker contends for.

Secondly, it is somewhat unlikely that the proprietor of a going concern, to which he still expected to devote at least part of his time, would enter into an arrangement by which his manager was entitled to more than two thirds of the profits. Thirdly, had the italicized clause been intended to refer to ‘ ‘ the net income or profit” rather than to “a bonus,” the comma immediately preceding the clause should not have been inserted. As a matter of punctuation the use of the comma indicates that the clause refers back to the earlier noun. See Evans, A Dictionary of Contemporary American Usage, p. 94. No really useful purpose would be served by our discussing at length the many other arguments that are made in the briefs.

On cross appeal Walker contends that Kerr was not entitled to the termination pay of $600 which the contract provides for him if he is discharged without cause. It is said that an employee who sues his employer displays such an uncooperative attitude that the employer is entitled to end their relationship. Upon the facts before us this argument is not sound. The bonus was payable at the end of the first year. Kerr says that he made repeated efforts to discuss the bonus with his employer, but Walker was evasive and kept putting him off. After delays of two months and a half Kerr finally brought the matter to an issue by filing suit. To hold that his conduct worked a forfeiture of the termination pay would enable Walker to escape that liability by persistently refusing to recognize Kerr’s just request for a discussion of the bonus.

Walker also insists that the chancellor, in determining the net profits for the year, should have disallowed, as bad debts, eleven accounts receivable totaling $644.77. It appears, however, that Walker did not originally treat these accounts as uncollectible, for after the year in question he continued to extend credit to these eleven customers of the agency. All but three of them later made payments on their accounts, and for the ihost part these payments exceeded the old debit entries that are now asserted to be uncollectible. The accounts seem to be still carried on Walker’s books, and he has not attempted to collect any of them by legal action. The chancellor, upon evidence not designated for inclusion in the record, made a deduction of $778.22 for bad debts. We are not convinced that the weight of the evidence required him also to disallow the eleven additional accounts now in controversy.

Affirmed on direct and cross appeal.


author: Paul Ward, Associate Justice.

text:
    Narisi v. Narisi.
    5-1672
    320 S. W. 2d 757
    Opinion delivered February 2, 1959.
    [Rehearing denied March 9, 1959.]

      Heilbron <& Shaw, Hardin, Barton, Hardin & Garner, for appellant.

      Warner, Warner & Bagon, Bethell & Pearce, for appellee.
   Paul Ward, Associate Justice.

This is a divorce action involving the custody of children, support for the wife, and maintenance for the children.

Appellant, Norma J. Narisi, and appellee, Vincent J. Narisi, were married on December 16,1947 at Fort Smith where they both lived at that time and where they still live. The parties lived together without incident until about the middle of September, 1954 when they separated for about 3 months. During the time they were together three children were born: Jacob J. Narisi, now about 9 years old; Stella Maria Narisi, about 7 years old, and; Vincent J. Narisi, Jr., about 5 years old.

The parties resumed marital relations about the middle of December, 1954 and continued to live together until May, 1955 when they again separated for about 6 weeks.

They resumed marital relations about the middle of July, 1955 and lived together until their final separation on May 30, 1957.

On July 27, 1957, Norma filed suit for divorce on the grounds of indignities, including unmerited reproach, physical abuse, abusive language, and non-support of her and the children. She prayed for a divorce, for custody of the children with visitation rights to appellee, for $600 per month for support and maintenance, for one-third of appellee’s personal property absolutely, for one-third of all real property for life, and for attorney fees.

On August 5, 1957 Vincent filed a general denial and also a cross-complaint accusing Norma "with indignities, including abuse, studied neglect, physical abuse, and profane language, and stating that Norma was not a fit person to have custody of the children. His prayer was for a divorce and custody of the children.

Upon a final hearing the trial court denied a divorce to Norma, gave a divorce to Vincent and gave custody of the children to Norma. The trial court also made allowances for support and maintenance.

On this appeal appellant, among other things, asks us to hold that she is entitled to a divorce, and that appellee is not, and that she be given the statutory division of property. She also asks for additional support and maintenance, and additional attorney fees.

On the principal question of divorce we have reached the conclusion that neither party should be given a divorce. In view of this and in the hope, perhaps vain, of a reconciliation in the interest of the children, we will not attempt to recount and evaluate in detail all of the testimony which is voluminous, sometimes sordid and highly conflicting. We feel that to set out fully the testimony would not be beneficial as a precedent and might only serve to aggravate a delicate situation.

A careful examination of the record presents us with this general picture:

When the parties were married appellant, who was several years younger than her husband, was working for appellee, who was and is a substantial business man in Ft. Smith, and she continued to work in a clerical capacity until after the first child was born. Apparently marital clouds first began to gather in the fall of 1953 over money matters and over Norma taking dancing-lessons. Appellee did not, and has never, given a definite allowance to appellant. Sometimes her demands for money were not granted by appellee and sometimes, it seems, they should not have been. Appellant says she borrowed money and also used money from her own small estate to pay the expenses incidental to the birth of the children. This was denied. At first appellee went with appellant to take dancing lessons, but later she chose to go by herself under circumstances which led appellee to think, right or wrong, that she was enamored with the dancing teacher. Anyway after living together for about six and one-half years the first separation took place and lasted for about 3 months. During this period of separation the parties were together on a few occasions but it was also when appellee thought Norma strayed further from the path of rectitude. Her association with the dancing teacher aroused intense distrust in appellee. He and his private investigators professed to have found appellant and the dancing teacher in suspicious relationships, but there was no positive or direct proof of extreme indiscretions. It is undisputed that Vincent accused her repeatedly of acts of infidelity with more than one man. In spite of it all they went back together on or about December 15, 1954 and lived together in their home for about 5 months when they separated once more for a period of about six weeks. The immediate cause of this separation, in addition to some of the things mentioned above, was a fight in which, according to appellee, Norma tried to inflict injury on him with a pair of scissors.

We pass over the intervening accusations and counter accusations because the parties again effected a reconciliation on or about July 15, 1955 and lived together until May 30, 1957.

Regardless of the merits or demerits of each party’s accusations prior to the July, 1955 reconciliation, we think each party condoned the actions of the other on that date and by that act. Our holdings to that effect are so numerous and specific that citations are unnecessary. We realize that condonation may sometimes be conditional, but we do not think that rule is applicable here. In the first place living together nearly two years belies any expressed or latent intent to cohabit on a trial basis, or if so, it shows that the trial period had ended. Also, the cause of the last separation was not a renewal of the alleged prior indiscretions and indignities.

The immediate cause of the final separation was a brawl that took place in their home on the night of May 30, 1957. The parties and their children, together with two visiting children, had visited a rodeo that night. When they returned around 10 or 11 o’clock after the children had gone to bed, Norma and Vincent went to their room where they were to sleep on a double bed. Shortly the brawl began. Their stories of the cause and what happened are somewhat similar, but vary as to who was most to blame. Appellant, according to her account, turned on the bed light to read for a few minutes when appellee got mad, cursed her, and dragged her bodily into the living room. She says she resisted only because she didn’t want to awaken the children and make a scene. Appellee admits asking appellant twice to turn out the light so he could sleep, and that she not only refused but flew into a rage with violent language, and tried to inflict bodily harm on him. He says that he was merely trying to, defend himself when he took hold of her arms until he could get to the front door and escape. It is impossible to determine with satisfaction which party has given the true account of what took place, and there is no corroborating evidence to tip the scale.

There is, however, one thing that is made clear in the record, and that is that both parties were equally at fault. Such being the state of the record we conclude that neither party should be given a divorce. In this connection, we like the general rule as stated in 27 C. J. S. at page 623, dealing with Divorce, under the section of Recrimination, Section 67a. which states: “As a general rule, sometimes declared by statute, divorce is a remedy for the innocent against the guilty; hence, if both parties are equally at fault, a divorce will not be granted. If the conduct of both parties has been such as to furnish grounds for divorce, neither of the parties is entitled to relief, or, as the rule sometimes is expressed, if both parties have a right to a divorce, neither of the parties has.” Decisions from many states are cited in support of the above. The rule is known as the doctrine of recrimination and rests on the equitable maxim that he who comes into equity must come with clean hands. There are decisions of this court in harmony with the rule expressed above. In Cate v. Cate, 53 Ark. 484, 14 S. W. 675, where a divorce was denied both parties we said: “It is not necessary to recapitulate the evidence and determine whether the conduct of either would be sufficient to warrant a divorce, provided the other was less guilty. It is immaterial, for we find them about equally at fault . . .” For holdings to the same effect see: Malone v. Malone, 76 Ark. 28, 88 S. W. 840; Strickland v. Strickland, 80 Ark. 451, 97 S. W. 659; Wilson v. Wilson, 128 Ark. 110, 193 S. W. 504; Preas v. Preas, 188 Ark. 854, 67 S. W. 2d 1013; Evans v. Evans, 219 Ark. 325, 241 S. W. 2d 713; Woodcock v. Woodcock, 202 Ark. 809, 152 S. W. 2d 1013; and; Bonner v. Bonner, 204 Ark. 1006, 166 S. W. 2d 254.

In disposing of the case below the trial court made we believe a fair allowance for the support of appellant and the care of the children which we hereby approve. We also approve the action of the trial court in giving to appellant the custody of the children, together with the visitation arrangement set forth.

Several other orders and actions of the trial court are urged as error by appellant, but in view of the disposition we have made of the case, as set forth previously, we deem it necessary to refer to only one.

Appellant earnestly insists that the trial judge should have disqualified and that it was error for him to refuse to do so. This contention is based on the showing that the trial judge had formerly been somewhat closely associated with appellee, both socially and in a 'business way. We point out that no showing was made, which would disqualify the trial judge under any statute or under the constitution of this state. Such matters of disqualification are, as we have said many times, left largely to the discretion of the trial judge himself. We cannot say that the trial judge abused his discretion in this instance.

Appellant has asked for an additional attorney fee for prosecuting this appeal, and we think she is entitled thereto in the amount of $200 to he paid by appellee, and it is so ordered.

The decree of the trial court is therefore affirmed in all matters except that portion granting a divorce to appellee, and that part is reversed. The cause is remanded with directions to enter a decree in accordance with this opinion.


author: Sam Robinson, Associate Justice.

text:
    Old Republic Ins. Co. v. Martin.
    5-1753
    320 S. W. 2d 266
    Opinion delivered February 2, 1959.

      Hardin, Barton, Hardin & Garner, for appellant.

      Luke Arnett, for appellee.
   Sam Robinson, Associate Justice.

Appellee, Mrs. Emma F. Martin, widow of Arthur L. Martin, was awarded compensation under the Workmen’s Compensation Law because of the death of her husband due to silicosis. The Referee, Mr. L. D. Blair, made the award.

The issue here is whether appellant took a valid appeal to the full Commission from the decision of the Referee. The Referee’s opinion was filed February 1, 1957. The time in which an appeal could be taken expired thirty days thereafter. Ark. Stat. § 81-1325. Appellant contends the appeal was perfected; that the secretary for the attorney for appellant deposited in the mail a petition for review properly addressed to the Commission. The trial court held that although there was a presumption that the petition for review had been received by the Commission, such presumption was overcome by other evidence. The trial court prepared a well considered written opinion, in which it is said:

“Under the Arkansas decisions, where a letter was properly stamped and mailed, and was never returned to the sender, it is presumed that it was received, but this presumption may be rebutted. Planters’ Mutual Ins. Co. v. Green, 72 Ark. 305, 80 S. W. 151. See West Digest “Evidence,” heading 71 and cases there cited. See also, cited under same heading, Taylor v. Corning Bank, etc., 183 Ark. 757, 38 S. W. 2d 557; Harper v. Thurlow, 168 Ark. 491, 270 S. W. 607; Dengler v. Dengler, 196 Ark. 913, 120 S. W. 2d 340; W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S. W. 2d 106; Cady v. Guess, 197 Ark. 611, 124 S. W. 213, and American Fidelity Fire Insurance Co. v. Winfield, 225 Ark. 139, 279 S. W. 2d 836.

“Where a letter, properly and sufficiently addressed and properly stamped, was mailed, there is a presumption of fact, not of law, that the letter was received by the addressee in due course of mail, which presumption ceases to exist, where the addressee denies having received the letter, whereupon it becomes a question of fact whether the letter was written or received. W. T. Rawleigh Co. v. Moore, 196 Ark. 1148, 121 S. W. 2d 106.

“Presumptions give way to reality when facts opposing presumptions are presented, as term ‘presumption’ signifies that which may be assumed without proof or taken for granted and is defined as something asserted as self-evident result of human reason and experience. Gray v. Gray, 199 Ark. 152, 133 S. W. 2d 874.

“To the same effect, see W. T. Rawleigh Co. v. Moore, supra and Travelers Ins. Co. v. Thompson, 193 Ark. 332, 99 S. W. 2d 254.

“Under the cases above cited, it is uniformly held as a presumption of fact, not of law, that where a letter, properly and sufficiently addressed and properly stamped, is mailed, that it was received by the addressee in due course of mail. But the presumption ceases to exist where the addressee denies receiving the letter. In that case it becomes a question of fact whether the letter was received.

“The presumption arising where proof shows a letter properly mailed is not conclusive presumption of law, but a mere inference of fact founded on the probability that the officers of the government will do their duty. Such a presumption can of course be rebutted. Bluthenthal v. Atkinson, 93 Ark. 252, 124 S. W. 510.

“This Court without reservation can accept the evidence of appellant’s attorney and his secretary that a letter dated February 13, 1957 was properly addressed and stamped to the Workmen’s Compensation Commission in Little Rock. Duplicate letters or copies of the original were mailed to other parties. This evidence, of itself raises a presumption, factually, that the letter, evincing a desire to appeal from the award made by the Referee, was received. But under the cases cited, this presumption disappears and is dissolved when the receipt of the letter is denied by the addressee, Workmen’s Compensation Commission.

“Mr. John E. Cowne, Secretary of the Commission, was meticulously cross-examined by counsel for respondents in an effort to show that some error might have occurred upon the part of the employees in the handling and filing of incoming mail; that an error was possible. This form of questioning addressed to Mr. Cowne, resulted in his giving in detail the method and procedure followed in the handling of mail and handling and transmission of legal papers to the proper person or official of the commission . . . The subsequent searches made for the letter requesting a hearing and review by the Full Commission, confirms at least the testimony of Mr. Cowne that the letter actually, and as a matter of fact had not been received.

“The Court does not care to indulge in speculation or conjecture, as to what occurred to the letter, but it is not impossible nor improbable that the letter, when mailed in Fort Smith, before transmission in due course, might have been lost or misplaced. The court prefers, however, to predicate its finding upon the evidence in the record.

( Í

“It is to be regretted that an incident, such as is shown in this case, has occurred affecting the right of review by the Full Commission. A rule by the Commission acknowledging receipt of notices of appeal or for review by registered mail, would eliminate the present unfortunate situation.

‘ ‘ The Court finds and holds under the evidence and record before it, that the Opinion filed October 18, 1957, by the Full Commission should be confirmed.”

"We agree with the opinion of the trial court.

Affirmed.

Harris, C. J., and Ward, J., dissent.


author: Jim Johnson, Associate Justice.

text:
    Harbour v. Harbour.
    5-1771
    321 S. W. 2d 224
    Opinion delivered February 2, 1959.
    [Per Curiam opinion on rehearing March 23, 1959.]

      Charles 8. Goldberger & E. W. Brockman, Jr., for appellant.

      J. 8. Brooks <& M. P. Matheney, for appellee.
   Jim Johnson, Associate Justice.

This is an appeal from an order of the trial court construing a mandate of this Court.

On June 9, 1958, in the ease of Harbour v. Harbour, 229 Ark. 198, 313 S. W. 2d 830, this Court handed down a decision increasing from $50.00 to $125.00 per month alimony and support payments that Mr. Harbour should make to Mrs. Harbour, or an increase of $75.00 per month. Later, in a Petition for Rehearing, Mr. Harbour asked that such required monthly payments be reduced and that whatever increase was allowed should be effective as of June 9, 1958, the date of the original opinion of this Court.

The Petition for Rehearing was granted to the extent of reducing the monthly payments to $100.00 per month to be effective as of June 9, 1958. This was done "by a per curiam order of this Court dated July 1, 1958, the pertinent parts of which read as follows:

“Appellant’s Petition for Rehearing is granted to the extent of reducing the $125.00 payment per month to $100.00 per month, commencing on June 9, 1958.”

It is our conclusion that the above language is clear and definite and is not susceptible to any different construction other than that the payments should begin on June 9, 1958.

Therefore, we hold that the increase in the payment to $100.00 should be from July 9, 1958, and not from August 1,1957, as held by the trial court. See Watkins v. Ackers, 195 Ark. 203, 111 S. W. 2d 458.

Accordingly, the decree of the trial court is reversed.

PER CURIAM

On Rehearing

When this case was tried in the chancery court on July 25, 1957, there was on deposit in court the proceeds from property owned by Mr. and Mrs. Harbour which had been taken by the Highway Department for highway purposes. $7,825 came from property owned as an estate by the entirety, and there was $1,025 which was in payment of a lot owned by Mr. Harbour, making a total of $8,850 in the registry of the court. Of this sum Mrs. Harbour was given $3,912.50 as her part of the estate by the entirety and $233.27 as her dower interest in the $1,025. She was also given $709.67 as accrued and delinquent alimony and $2,100 in payment of alimony to accrue in the future. This made a total of $6,955.44 that was awarded to Mrs. Harbour out of the total of $8,850. On appeal to this Court it was held, in an opinion handed down June 9, 1958, that Mrs. Harbour was not entitled to the $2,100 in payment of future alimony (Harbour v. Harbour, 229 Ark. 198, 313 S. W. 2d 830) hut that the original allowance of $50 a month as alimony and as support for a child should he increased from $50 to $125 per month.

This Court’s opinion was not specific in stating whether the increase should be effective from the date of the decree of the trial court or from the date the case was decided here. In a petition for a rehearing, Mr. Harbour contended that $125 per month was too much to require him to pay and, further, that whatever increase was allowed should date from June 9, 1958, the date the case was decided by the Supreme Court. In response to the petition for a rehearing, Mrs. Harbour contended that the monthly payments should start as of August 1, 1957. Thus, on the petition for a rehearing there were two principal issues before this Court, both points having been briefed by the parties: (1) The amount of the alimony and support; and (2) when the increase should start. This Court granted the petition for a rehearing to the extent of increasing the alimony and support to $100 per month instead of $125 per month, as had been ordered in this Court’s original opinion. And, in response to both parties’ request that the opinion be clarified by stating the date the increase in alimony and support should start, this Court in a percuriam opinion ordered that the $100 per month be started as of June 9, 1958, the date the original opinion was handed down by this Court. The trial court was of the opinion that the clerk of the Supreme Court by stating in the mandate that the $100 per month payments should start as of June 9,1958, misconstrued the decision of the Supreme Court, and the trial court rendered a decree providing that the $100 per month should start August 9, 1957. Mr. Harbour appealed, again contending that the $100 payments should start as of June 9, 1958.

The clerk made no mistake in construing the per curiam, opinion, which is recorded in Volume C-44, page 88, of the records of proceedings of the Supreme Court of Arkansas signed by all the members of this Court. And on February 2, 1959, the trial court’s decree fixing as August 9, 1957 the date the $100 per month became effective was reversed. On petition for a rehearing Mrs. Harbour insists the $100 per month payments should commence at the time the original decree was rendered by the trial court. But when the amount each party received from the property is considered, we think the $100 per month payments should start June 9, 1958.

Petition for rehearing denied.