text:
    Yancey v. Yancey.
    5-2664
    356 S. W. 2d 649
    Opinion delivered April 23, 1962.
    [Rehearing denied May 21, 1962.]

      W. 8. Atkins, for appellant.

      Weisenberger & Wilson, by Royce Weisenberger, for appellee.
   Carleton Harris, Chief Justice.

Appellant, Andrew Yernon Yancey, instituted suit against appellee, Pauline Marie Yancey, for divorce, alleging indignities. Mrs. Yancey filed an answer and cross-complaint alleging indignities. The parties had married in 1957, and had subsequently purchased a home, which had been deeded to them, and which was held, as an estate by the entirety. On trial, the court granted appellee an absolute divorce, and inter alia, made the following findings:

‘ ‘ That on August 1, 1957, they mortgaged this property to the Hope Federal Savings and Loan Association of Hope, Arkansas, which has a first mortgage on this property, on which the balance including unpaid insurance premiums and taxes, was $3,090.74 at the time of trial, that Mrs. Ann Stovall, a sister of the Plaintiff, let them have $1,000.00 without interest to make the down payment on the place; that at a later date, she loaned them $426.41, making a total of $1,426.41; that $875.00 of this loan was paid back to Mrs. Stovall, leaving a balance of $551.41;
That another sister, Mrs. Zillah Y. Irby loaned them $138.88 to make the August and September, 1958, payments on the place;
That the $551.41 is still due and payable to Mrs. Stovall and $138.88 is due and payable to Mrs. Zillah Y. Irby; * * *
That the defendant was the principal bread winner of the family; that she earned considerable more money than did the plaintiff; that she also paid more of the utility bills and grocery bills than did the plaintiff;
That plaintiff is entitled to his Watch Eepair Shop and the equipment thereof; that he is entitled to his automobile;
That defendant should pay $551.41 to Mrs. Stovall and $138.88 to Mrs. Zillah Y. Irby; that she is entitled to the home, subject to the lien existing against said property; that she is entitled to plaintiff’s interest in said home; that plaintiff is ordered and directed to give defendant a quitclaim deed to his interest in said home; * * V’

From the decree so entered, appellant brings this appeal, the appeal relating only to the findings and order entered relative to property rights. Appellee cross-appeals from that portion of the decree divesting her of any interest in the personal property of appellant, directing her to pay the amounts, heretofore set out, to Mrs. Stovall and Mrs. Irby, failing to allow judgment for an amount of money in her savings account allegedly turned over to appellant, and failing to allow an additional attorney’s fee.

It is necessary that this decree be reversed, because the court exceeded its authority in directing appellant to give appellee a quitclaim deed to his interest in the home held as an estate by the entirety. The Chancellor was evidently undertaking to arrive at an equitable solution relative to property rights in making his findings, and we find nothing erroneous purely from the standpoint of equity; however, we have stated on several occasions that in event of a divorce, property held as an estate by the entirety shall be treated as a tenancy in common. The court may then do one of two things; it may place one of the parties in possession of the premises, or it may order the property sold and the proceeds divided. As to the first choice, this Court, in McClain v. McClain, 222 Ark. 729, 263 S. W. 2d 911, said:

"Appellant argues that the trial court erred in directing appellee to pay him only $25.00 per month as his half of the rental value of the real estate (2 acres) which they own as tenants by the entirety and was occupied as their homestead, and says that there is no evidence as to rental value of this property and that the court’s action was arbitrary. We do not agree.

On the facts presented, it was within the discretion of the trial court to award this entire homestead tract, its use, benefits and occupancy to appellee for her life, without allowing appellant any rental, and subject only to the right of survivorship of appellant. Appellant, therefore, is in no position to complain. We said in Heinrich v. Heinrich, 177 Ark. 250, 6 S. W. 2d 21, where a similar question of the possession of a homestead held by entirety was involved:

‘Appellant contends, under the rules announced in the two cases cited, that the power and authority of the trial court was limited to making a division of the rents thereafter accruing from the property in question between appellant and appellee. This would be true with reference to any lands not embraced in the homestead, but not as to homestead land. There is nothing on the face of the record to show that the five-acre tract in question was not a homestead, so we must indulge the presumption that the testimony reflected that fact. This presumption brings the case clearly within the rule announced in Woodall v. Woodall, 144 Ark. 163, 221 S. W. 463, to the effect that courts may award to the innocent party in divorce suits the possession, for a limited time, or absolutely (meaning for life), of a homestead held by entirety.’ ”

As to the second choice, in Brimson v. Brimson, 227 Ark. 1045, 304 S. W. 2d 935, we said:

“There are several parcels of real estate owned by entirety by Dr. Brimson and Mrs. Brimson, and acquired subsequent to the effective date of Act No. 340 of 1947 (see § 34-1215 Ark. Stats.). Such real estate— with the exception of the 5-acre tract hereinafter to be discussed — may be sold on order of the Court, on motion of either party, and the net proceeds divided equally. ’ ’

See also Carr v. Carr, 226 Ark. 355, 289 S. W. 2d 899, where this Court stated: ‘ ‘ The couple’s home was owned as a tenancy by the entirety, and was correctly ordered sold, the proceeds to be divided equally. Ark. Stats. 1947, § 34-1215.”

Since, in determining the equities between the parties, the court’s findings as to personal property may well have been influenced and affected by its disposition of the real estate, we remand the case with directions that the trial court render anew its findings relative to the property rights of the parties, in the light of our holding as to the real estate. This disposition precludes our passing upon the cross-appeal.

Appellee’s attorney complains that the fee awarded by the lower court was inadequate, and asks that we increase the amount allowed; an additional fee for services rendered on appeal is likewise requested. Taking into consideration appellant’s handicap (he was afflicted with polio at age eight and cannot walk without braces and crutches), the fact that his income is very limited and amounts to quite a bit less than that of his ex-wife, and the fact that this case is being reversed, we do not feel that an additional amount for services on appeal should he awarded. On remand, the court may give further consideration to the amount of fee awarded, if it so desires.

McFaddin, J., not participating.

       The property was valued at $6,000.00.


source: Caselaw Access Project

author: Ed. F. McFaddin, Associate Justice.

license: Public Domain

text:
    Carnal v. State.
    5038
    356 S. W. 2d 651
    Opinion delivered April 23, 1962.
    [Rehearing denied May 21, 1962.]

      Hardin, Barton & Hardin and Franklin Wilder, for appellant.

      Frank Holt, Attorney General, by Thorp Thomas, Asst. Attorney General, for appellee.
   Ed. F. McFaddin, Associate Justice.

The information on which the appellant was tried and convicted charged that the appellant “on the 22 day of April, 1961, did unlawfully and feloniously and knowingly have in his possession 155 pounds, more or less, of beef of more than $35.00 in value, knowing same to have been stolen, and possess same with the intent to deprive the true owner thereof against the peace and dignity of the State of Arkansas.” Appellant’s motion for new trial contains six assignments.

I. Sufficiency Of The Evidence. Assignments 1 to 4, inclusive, present this issue. Stites, Spence, and Odom testified that they did steal and kill two head of cattle f that they dressed one and delivered it to Carnal and received from him $25.00 in payment. It was shown by overwhelming and undisputed evidence that Carnal received and had in his possession this stolen beef. His defense was that he did not know that the beef was stolen. Carnal operates the Square Deal Cafe in Fort Smith. In regard to his dealings with Carnal, Stites testified:

“A. I told him I could furnish him with some beef at a reasonable price and he says, well, he didn’t know, says he thought he might take some and then later on he said, yes, he’d take it — at $25.00 a head.
“Q. How much a head?
“A. $25.00 a head.
“Q. Was there any understanding as to the size of the beef or anything?
“A. I told hiia it would dress out around 150 or 200 pounds — at least 150 pounds . . .
“A. I told him that the beef was about ready for delivery and he said he would take it and I told him, well, we would bring it in the next evening or night and he said he would be ready. ’ ’

When Stites took the stolen beef to Carnal the latter arranged to have it processed at the Grand Food Market. This was some time between 8:00 and 11:00 o’clock at night, and the dressed beef had dirt on it. Carnal paid Stites the $25.00 in Carnal’s restaurant after the delivery. Stites testified concerning his negotiations with Carnal: “When we were speaking of the beef I told him we dealt no questions asked — in regards to where I got them and all that.”

Spence, another of the thieves, testified:

“Q. Now when you unloaded the beef at the Grand Food Market would you tell the Jury as to the condition of the beef as to cleanliness?
“A. Well, the beef had been wooled around on the ground getting the hide off of it and it had dirt on it and some leaves and some grass and — well, just roughly it was pretty dirty.
“Q. Now when you were at the Square Deal Cafe to be paid off, did you have any conversation with Mr. Carnal about any troubles?
“A. Well, when we was leaving Mr. Carnal said to me, he says, ‘If you boys get into any trouble over this beef, well, I don’t know you.’ ”

No question was raised in the trial that the beef was worth less than $35.00, but on appeal such is raised. It was testified that the selling price of beef was 32 cents a pound at that time. Carnal paid the butcher at the Grand Food Market eight cents per pound for processing 155 pounds of beef. The 155 pounds of beef at 32 cents would calculate $49.60. See Davis v. State, 202 Ark. 948, 154 S. W. 2d 112. Giving the evidence in behalf of the State its strongest probative value, as is our rule on appeal in cases like this (Eddington v. State, 225 Ark. 929, 286 S. W. 2d 473), there is ample evidence to sustain the jury verdict. It was shown that appellant bought beef in the nighttime, paying $25.00 for it when the market value was $49.60; that he agreed to buy after the seller had told him he was to ask no questions as to the title; and he told the thieves, “If you boys get into any trouble over this beef, well, I don’t know you.” Certainly, a case was made for the jury.

II. Evidence Of Prior Convictions.

Assignment No. 5 in the motion for new trial reads:

“The court erred in admitting over the objection and exception of the defendant at the instance of the Prosecuting Attorney the admission of the evidence of prior convictions of the defendant for drunkenness, for driving a car while under the influence of intoxicants and other specific misdemeanors or violations.”

In denying the motion for new trial, the Circuit Judge gave a complete answer to this assignment:

“In Paragraph 5 of the motion for a new trial the point is raised that the court erred in admitting certain evidence over the objection and exceptions of the defendant. In this connection it must be pointed out that the attorneys who are filing this motion for a new trial are not the attorneys who tried the case and if they had been present at the trial they would have observed that there were no objections made or exceptions saved to any actions of the court. The contention of defendant in paragraph 5 of the motion is therefore denied.”

III. Passion And Prejudice. Assignment No. 6 in the motion for new trial reads:

“The verdict of the jury was rendered under the influence of passion and prejudice.”

There was no evidence offered to sustain this assignment in the motion for new trial. In overruling this assignment, the Circuit Judge said:

“Paragraph 6 of the motion asserts that the verdict of the jury was rendered under the influence of passion and prejudice. The court knows of no basis whatsoever for this assertion and the motion on this ground is therefore denied.”

IY. Absence Of Corroboration. Assignment No. 7 in the motion for new trial consists of two paragraphs and reads:

“There is no substantial, admissible or competent evidence in this case. The only evidence on which the verdict could possibly rest would be the evidence of alleged accomplices which is not competent.
“The only substantial evidence in the case tending to connect this defendant with the crime with which he is charged and for which he is convicted was the testimony of the so called or alleged accomplices and this stands uncorroborated or unsupported by any other substantial evidence, and the verdict under the law in the case cannot be sustained under such circumstances, and on account thereof the verdict should be set aside.”

In overruling the motion for new trial, the Circuit Judge stated as regards this assignment:

“Paragraphs 7 and 8 assert that the defendant was convicted on the uncorroborated or unsupported testimony of ‘so called or alleged accomplices’. The court presumes that this has reference to the testimony of the admitted thieves Charles Stites, Ray Spence and Bill Odom. In the first place, even if these persons are to be regarded as accomplices within the meaning of Ark. Stats. Sec. 43-2116, an analysis of all the facts and circumstances before the jury will evidence that the testimony of these three persons was either undisputed in character or corroborated by the defendant himself, other witnesses, or by other facts and circumstances shown in the case. Secondly, it may be questioned whether the thieves were accomplices to the crime on which the defendant was tried. Lastly, and in any event, the defendant is not now in position to question whether or not these witnesses, Stites, Pence and Odom were accomplices or to complain that an instruction was not given under See. 43-2116, for he failed at the trial to either claim that they were accomplices or to request the court to give an instruction defining accomplices or the effect to be given their testimony. Stinkard v. State, 193 Ark. 765, 103 S. W. 2d 50; Trotter v. State, 215 Ark. 121, 219 S. W. 2d 636. The motion in this regard is therefore denied.”.

As has been previously indicated, present counsel on appeal did not represent the appellant in the Trial Court. We have before us a record with no exceptions to testimony, no objections or exceptions to instructions, and no request for instructions. In Lackey v. State, 67 Ark. 416, 55 S. W. 213, this Court, speaking through Mr. Justice Riddick, said:

“. . . counsel for defendants say that the charge of the circuit judge was defective and incomplete in other respects, and contend that it was the duty of the court to give the whole law of the case to the jury, . . . In this State it has been often held that if a party wishes the trial judge to instruct on any particular point not covered by his charge, he should ask an instruction covering such point. If he sits silent, and makes no effort to remedy the defect, he has no legal ground of complaint.”

The judgment is affirmed.

       The information referred to Act No. 48 of 1959 (now found in § 41-3938 Ark. Stats.), which reads: “Any person who shall possess stolen goods, money or chattels which exceed the aggregate value of thirty-five dollars ($35.00), knowing them to be stolen, with intent to deprive the true owner thereof, shall be guilty of a felony, and upon conviction thereof, shall be punished by imprisonment in the penitentiary not less than one (1) year nor more than twenty one (21) years; and if the aggregate value thereof be not more than thirty five ($35.00) dollars, such person shall be guilty of a misdemeanor and shall be punished by imprisonment in the county prison or municipal or city jail not more than one (1) year and shall be fined not less than ten dollars ($10.00) nor more than three hundred dollars ($300.00).”

       Nach witness is serving a penitentiary sentence for the theft.

       In overruling the motion for new trial regarding the sufficiency of the evidence, the Circuit Judge used this language: “Paragraphs 1 through 4 are formal in character and are denied as being without merit for reasons stated herein. It was never disputed that the carcass of beef in question was stolen and the defendant admitted that he purchased it from the thieves. His sole defense was that he did not know that it was stolen property. With the possession admitted and the character of the property undisputed a case was amply made for the jury by the testimony of the state’s witnesses together with that of the defendant and his own witnesses, all of whom showed that the deal to purchase the beef and its delivery was accomplished under clandestine circumstances, and at a price which labeled the transaction as felonious. Short of a confession the State is never able to prove guilty knowledge except by the plain inferences to be drawn by reasonable men from the facts and circumstances of a given case; and in the instant case the jury interpreted the proof as evidencing guilty knowledge. In fact in this case there was a singular lack of dispute as to what had happened. The principal differences in the proof consisted of the circumstances that the defendant and his girl friend placed the hour of delivery of the beef at from 8:30 to 9:00 P.M., while the butcher and his helper placed the delivery at around 11:00 P.M. or later; and of course the defendant denied that the beef had been sold to him on a ‘no questions asked basis’ and further denied that he had told the thieves, in substance, that ‘If you boys get into any trouble over this beef, well, I don’t know you.’ The demeanor and attitude of the defendant and his cohort, Miss Betty McAdoo, while on the witness stand were not calculated to give credence to his assertions, and the court felt that the reaction of the jury as reflected in their verdict, arrived at after due deliberation, was amply justified in the light of all of the facts and circumstances of the case.”


author: George Bose Smith, J.

text:
    Thompson v. Universal C.I.T. Credit Corp.
    5-2670
    356 S. W. 2d 735
    Opinion delivered April 23, 1962.
    [Rehearing denied May 28, 1962.]

      Paul K. Roberts, for appellant.

      Carlton Currie and Barber, Henry, Thurman S McCaskill, for appellee.
   George Bose Smith, J.

In 1960 a used car was sold to the appellant by Union Motors, Inc., under a contract by which the dealer retained title until the purchase price was paid. The seller assigned the contract to Universal C.I.T. Credit Corporation, which brought this action to repossess the car. Thompson filed a cross-complaint against both the finance company and the dealer, asking that the contraact be canceled for fraud and that he recover $355 as damages for breach of warranty.

Upon trial by jury the court directed a verdict in favor of the finance company. The jury awarded Thompson damages of $14.90 upon his cross-complaint against Union Motors. Thompson has appealed from the ensuing judgment without bringing up any of the testimony taken at the trial.

It is first argued that the court erred in directing a verdict for Universal C.I.T., inasmuch as the jury might have found that the finance company never obtained title to the car. In making this argument Thompson relies upon a sentence in the contract reciting that title is retained “by Seller” until the purchase price is fully paid. It is contended that the jury might have seized upon this provision as a basis for finding that the title remained in the seller and never passed to Universal C.I.T. The dealer, however, executed an assignment transferring not only the contract but also “all interest in the chattels thereby sold.” "When the printed instrument is construed as a whole the title so plainly passed to the finance company that the trial court could not properly have submitted this question to the jury as a disputed issue of fact.

Thompson also insists that two erroneous instructions were given at the request of Union Motors. The trouble is that on this phase of the case Thompson is appealing from a verdict and judgment in his favor. We have held that such an appeal is permissible (a) if the appellant was entitled to substantial damages and received only nominal damages, or (b) if an award of substantial damages is inadequate and is accompanied by other error. Smith v. Ark. Power & Light Co., 191 Ark. 389, 86 S. W. 2d 411. With no evidence whatever before us we cannot say that an award of $14.90 is either nominal or inadequate, for it is possible that the jurv gave Thompson every cent of damages established by his proof. If so, a reversal might afford him the opportunity of introducing additional proof that should have been presented at the first trial. Under the rules laid down in the Smith case no prejudicial error has been shown, and we cannot presume that the matter omitted from the record on appeal would require a reversal of the judgment. Kimery v. Shockley, 226 Ark. 437, 290 S. W. 2d 442.

Affirmed.


author: George Rose Smith, J.

text:
    Nutrena Mills, Inc. v. Parsons Feed & Farm Supply, Inc.
    5-2680
    356 S. W. 2d 421
    Opinion delivered April 23, 1962.

      Paul Jameson and O. E. Williams, for appellant.

      Crouch, Blair $ Cypert, for appellee.
   George Rose Smith, J.

The appellant, in an effort to collect a $5,346.47 judgment against Harold and Velma Millsap, obtained a writ of garnishment against the appellee. The garnishee failed to answer the writ within twenty days after it was purportedly served. Later on, and before the entry of judgment by default, the garnishee filed a motion to quash the service. This appeal is from an order granting that motion and quashing the service of the writ of garnishment.

There is ample evidence to support the trial court’s finding that the attempted service was invalid. The deputy sheriff’s return merely recited that he had served the writ by delivering a copy to Shorty Parsons, vice president of the appellee. The proof indicates that Shorty Parsons was not in control of the corporation’s business. The governing statute requires that the service be had upon the president of the corporation or, in his absence, upon certain other officers, but there is no authority for serving a vice president not in control of the business. Ark. Stats. 1947, % 27-346. The return did not recite, and the evidence does not show, that the president of the corporation was unavailable. The purported service was therefore void. Ark. Coal, Gas, etc., Co. v. Haley, 62 Ark. 144, 34 S. W. 545; Brick v. Sovereign Grand Lodge, 196 Ark. 372, 117 S. W. 2d 1060.

It is insisted that the garnishee entered its appearance by filing this motion to quash the service:

“Comes now the above named garnishee and for its motion to quash service of the writ of garnishment filed herein alleges and states as follows:
“1. That said writ was not served upon the garnishee in the time or manner prescribed by law.
“Wherefore, the garnishee prays that the service of said writ be quashed.”

The appellant argues that the filing of this motion constituted a general appearance, because the garnishee did not expressly state that it was appearing specially and only for the purpose of the motion.

This contention is untenable. Whether the filing of a particular pleading amounts to a general appearance or a special one is a question of substance rather than of form. Smith Chickeries v. Cummings, 224 Ark. 743, 276 S. W. 2d 48. Elsewhere it is uniformly held that a pleading such as a motion to quash, which raises only a jurisdictional issue, is a special appearance regardless of whether it contains an express statement to that effect. In re Hite’s Estate, 155 Calif. 390, 101 P. 8; Clark Milling Co. v. St. L. S. W. Ry. Co., 33 Ga. App. 660, 127 S. E. 783; Whitesides v. Drage, 56 Ind. App. 679, 106 N. E. 382; Driscoll v. Tillman, 165 Wis. 245, 161 N. W. 795.

Our own cases are in harmony with those cited. The mere filing of a motion to quash service is not a general entry of appearance, for the pleader does not intend to submit to the court’s jurisdiction. Gooch v. Jeter, 5 Ark. 383; Ferguson v. Ross, 5 Ark. 517. “This court has adopted the rule that any action on the part of the defendant, except to object to the jurisdiction, which recognizes the case as in court, will amount to a general appearance.” (Italics added.) Payne v. Stockton, 147 Ark. 598, 229 S. W. 44. It is clear that a motion such as the one before us, asking no relief except that the service be set aside, does not necessarily defeat its own needs by bringing the pleader into court for all purposes.

The holding in Harrison v. Bank of Fordyce, 178 Ark. 760, 12 S. W. 2d 400, is not contrary to this view. There the court mentioned the fact that the motion to dismiss did not recite a special appearance, but the decision was based upon a finding that the motion was in the nature of a demurrer, seeking a dismissal of the complaint rather than a mere quashing of the service. A similar set of facts was considered in Roach v. Henry, 186 Ark. 884, 56 S. W. 2d 577. After reviewing our cases we are convinced that this garnishee’s motion did not have the effect of entering its appearance generally.

There is also a suggestion in the appellant’s brief that the appellee went beyond the scope of its motion: and sought to develop the merits of the case by proving that it was not indebted to the Millsaps. The record does not support this contention; the only point actually in issue was whether the service of the writ was valid.

Affirmed.


author: Paul Ward, Associate Justice.

text:
    Farmers Union Mutual Ins. Co. v. Myers.
    5-2686
    356 S. W. 2d 423
    Opinion delivered April 23, 1962.

      Charles A. Wade, for appellant.

      Switzer é Switzer, for appellee.
   Paul Ward, Associate Justice.

Appellee, C. I. Myers, sued appellant, Farmers Union Mutual Insurance Company (hereafter referred to as “Company”), to recover (under the provisions of policy No. 48879) the amount of $936.78 for damage to his dwelling and $493.26 for damage to his furniture, both caused by fire. From an adverse verdict and judgment the Company prosecutes this appeal, urging six points for a reversal. These points will be discussed in the order they are presented, after first setting out the material pleadings and facts.

The complaint filed by Myers mentions the policy insuring his dwelling for $4,000 and furniture for $2,000 and further alleges that the policy was in effect when a fire damaged both items to the extent previously noted; that all terms of the policy had been complied with; that demand had been made for $1,430.04, and that all liability had been denied by the Company. The prayer was for the above amount and also for statutory penalty and attorney’s fee. The answer, in addition to a general denial, stated that Myers failed to comply with policy provisions providing for written notice and filing of proof of loss. In his reply Myers stated that he did give notice and requested blanks to make written proof of loss; that the Company’s agent refused to furnish blanks, and also denied liability.

At the conclusion of appellee’s testimony he moved to amend his complaint to ask for only $1,055.54. Over appellant’s objections the court allowed the amendment to be made. At that time appellant moved for an instructed verdict which, as will later appear, the court correctly overruled. After the introduction of appellant’s testimony the jury (upon instructions not challenged here) returned a verdict for appellee as asked for in the amended complaint. Thereupon the court rendered judgment in accordance with the verdict, and also gave appellee judgment for attorney’s fee and the statutory penalty.

The first assignment of error is that the court allowed the complaint to be amended. This was a matter which addressed itself to the sound discretion of the court. Bridgman v. Drilling, 218 Ark. 772, 238 S. W. 2d 645. Except for the matter discussed below, there is no attempt to show the trial court abused its discretion.

It is, however, earnestly contended by appellant that the court allowed the amendment “for the sole purpose of invoking a penalty statute”. It is then further contended that the amendment came too late to invoke that statute. To support this contention appellant cites several cases which announce the general rule that “the insured is not entitled to recover a penalty and attorney’s fee when he demanded in his complaint more than he recovered”. The cited cases are not applicable here because they deal with situations where the only issue vías the amount of recovery. The reason underlying those decisions appears clearly to be that if the assured had demanded the lesser or correct amount the insurer would have the opportunity to pay and avoid the trouble and expense incidental to preparing for and trying a law suit. That was not the situation here, however, where appellant refused to pay any amount and relied on appellee’s alleged failure to give proper notice and to file a proof of loss. The jury’s verdict, however, resolved those issues against appellant upon evidence and instructions not here challenged. The rule applicable under the facts of this ease has been clearly stated and settled by many of our decisions.

In Progressive Life Insurance Company v. Hulbert, 196 Ark. 352, 118 S. W. 2d 268, appellee (as beneficiary in a life insurance policy on E. D. Hulbert) sued for $400 and appellant defended on the ground Hulbert was not an insurable risk at the time the policy was issued. During the trial appellee was allowed to amend his complaint to ask for $266.67. That amount was allowed by the jury, and the court rendered judgment for attorney’s fee and penalty. In affirming the trial court we made this statement:

“But the sum finally sued for was $266.67, and it was within the discretion of the court to permit this amendment. Had the insurance company offered to confess judgment for this amount when the complaint was amended, it would have been proper to enter a judgment for that amount without penalty or attorney’s fee.”

It is noted of course that, in the case under consideration here, appellant did not offer to pay the sum of $1,055.54 when the complaint was amended. Also, in conformity with appellant’s defense in this case, it would not have paid $1,055.54 had only that amount been demanded in the original complaint.

To the same effect is the case of Kansas City Fire & Marine Insurance Company v. Kellum, 221 Ark. 487, 254 S. W. 2d 50, where we cited and approved the Hulbert decision. There also attorney’s fee and penalty were allowed, based on facts set out by the Court as follows:

“The record reflects that at the conclusion of the evidence in the case, appellee was permitted to amend the complaint and reduce the amount for which he sued to $2,096.96. The extent of appellant’s liability was $3,000. Appellant refused to accept the correctness of appellee’s claim after the reduction and continued to deny all liability. The jury returned a verdict in favor of appellee for the reduced amount of the claim, $2,096.96, upon correct instructions by the court limiting recovery to $2,096.96.”

It is our conclusion, therefore, that the trial court was correct in allowing attorney’s fee and penalty in this case since appellant did not offer to pay the sum of $1,055.54.

It is next contended that the court erred in refusing to direct a verdict in favor of appellant because there is no substantial evidence to support the jury’s finding it waived notice and proof of loss. We see no merit in this contention. This was a question of fact presented to the jury on instructions not here questioned, and we find substantial evidence in the record to support the jury’s findings. Appellee, in substance, stated lie talked with appellant’s representative after the fire and that the representative said appellant was not going to pay the loss. This same representative admitted he had reported the loss. Another representative of appellant indicated that had a proof of loss been submitted he would have denied liability. This was substantial evidence to support a finding by the jury that appellant denied liability for the loss. In Queen of Arkansas Insurance Company v. Forlines, 94 Ark. 227, 126 S. W. 719, the Court, in this connection, said: “. . . by the repeated rulings of this court a denial of liability, based upon reasons other than a failure to furnish proof of loss, constitutes a waiver of the provisions of the policy requiring proof of loss to be made.” Also, in Yates v. Thomason, 83 Ark. 126, 102 S. W. 1112, the Court said: “And it has long been settled by many decisions of this court that a denial of liability waives proof of loss.”

There is no merit in the contention that there is no substantial evidence to show proof of damages. On this point appellee was the only witness to testify. He gave his estimate of the amount of damages both as to his house and furniture, based, as to the house, on estimates and repairs made. There was no objection to his testimony, and there was no cross-examination on this point.

During the trial the court refused to allow appellant to introduce testimony allegedly to show facts surrounding the cause of fire, presumably to show appellee may have originated the fire. This issue was not raised by the pleadings and the court’s ruling was correct. Moreover, appellant, in his argument, has not pointed out what testimony was offered.

We find no error in the court permitting appellee to testify to certain conversations with appellant’s agent relative to cancellation of the policy after the fire. Again appellant, in argument, does not point out the objectionable testimony. It might have been material to show the authority of the agent to deny liability.

Appellant is wrong in its contention that the insurance law (relative to attorney’s fee and penalty) does not apply to mutual aid associations. See Act 159 of 1955 (Ark. Stats. § 66-514) which amended Act 71 of 1939 to include a “farmer’s mutual aid association”.

Affirmed.


author: Sam Robinson, Associate Justice.

text:
    Perry v. Perry.
    5-2687
    356 S. W. 2d 419
    Opinion delivered April 23, 1962.

      Murphy <& Arnold, for appellant.

      Leon Reed and Alton Bittle, for appellee.
   Sam Robinson, Associate Justice.

In October, 1945, C. W. Vincent and his wife, for the consideration of $1,100.00, conveyed by Warranty Deed to J. C. Perry and his wife, Mabel, a tract of land consisting of about 16 acres. The Perry’s son, Charles, was in the army at the time and with his consent about $900.00 of his money was used in making the purchase. Mrs. Perry took the deed home and placed it among Charles’ effects.

Charles returned from the army in 1947 and Mrs. Perry delivered to him the deed. She contends that the property was bought for Charles. He took the deed to the scrivener (not the grantor) who had drawn it originally and had it changed by erasing and marking out the names of the original grantees, J. C. Perry and Mabel Perry, his wife, and writing Charles E. Perry, his own name, thereon as the grantee. He then had the deed placed of record.

Charles’ mother and father, J. C. and Mabel Perry, the original grantees, continued to live on the land. In 1947 Charles sold three acres of the 16 acres to Other Vance for the consideration of $650.00. In 1957 Mabel Perry separated from J. C. Perry and moved from the property, although there has been no divorce.

In 1960 Charles and his wife went to the place involved and attempted to physically eject J. C. Perry from the property by force. Quite a fight took place. J. C. struck Charles with a hammer and Charles’ wife shot at J. C. with a shotgun.

In August, 1960, Charles and his wife executed and delivered to Charles’ Mother, Mabel, a Warranty Deed to the property. In October, 1960, Mabel, claiming sole ownership under the deed from Charles, filed this action in Circuit Court to eject J. C. Perry from the property.. He answered alleging that he and Mabel bought the property from the Vincents in the first instance but that the deed had been altered and further that he had acquired, the property by adverse possession. On defendant’s motion, the cause was transferred to Chancery Court and the Chancellor held that Mabel Perry is the owner and J. C. Perry has appealed.

The deed shows on its face that it was oigrinally made to “J. C. Perry and Mabel Perry, his wife” as. the grantees and that it has been altered to show “Charles E. Perry” as the grantee. The deed executed and delivered by the Vincents showing J. C. Perry and his wife, Mabel, as grantees, conveyed the title and vested an estate by the entirety in the Perrys. Charles could. not thereafter — two years after the deed was executed and delivered — divest them of title by merely altering the deed by which they had acquired title.

Charles was not one of the parties to the conveyance and his alteration of the deed in the circumstances did not affect the title conveyed by it as originally drawn. It is true that in the case of Inglish v. Breneman, 5 Ark. 377, the Court, in discussing a promissory note, said that the alteration by the parties or any other person voids the instrument, and in Williams v. Welch, 223 Ark. 214, 266 S. W. 2d 61, the Inglish case is cited for the principle that any alteration in a material part of any instrument voids it, but then the Williams case was decided on the proposition of whether fraud was perpetrated by one of the parties in the instrument involved.

In Andrews v. Calloway, 50 Ark. 358, 7 S. W. 449, the Court announced the rule that is in accord with the great weight of authority. The Court said: “It is now the settled doctrine of the courts that alteration of an instrument by a stranger (an act commonly called spoliation) has no effect on the rights or liability of the parties.” In Woods v. Spann, 190 Ark. 1085, 82 S. W. 2d 850, it is stated: “An alteration, to have the effect of avoiding an instrument, must not only be material, but must be made by a party or privy to the instrument, or with his knowledge or consent.” In Robertson v. Southwestern Company, 136 Ark. 417, 206 S. W. 755, the Court quoted with approval from 2 Corpus Juris 1200 as follows: “Where the change is made by one who is or was the agent of one of the parties, but without authority from the principal, either express or implied from the circumstances, to make any changes, and the matter is outside the scope of his particular employment, the act is generally considered to be a mere spoliation and has no effect upon the instrument or the rights and liabilities of the parties thereto . . .”

In Tiffany on Real Property, 3rd Ed., Vol. 4, Pg. 43, it is said: “The substitution of another name as that of the grantee, without the grantor’s consent, can obviously not operate to vest title in the person whose name is substituted.”

Charles is not a party to this action and did not testify. Mabel acquired nothing in the deed from Charles. He had nothing to convey because his altering of the deed from the Vincents to J. C. and Mabel Perry did not divest them of title. It necessarily follows that J. C. and Mabel Perry still own the property as an estate by the entirety.

Reversed.

Bohlinger, J., not participating.


author: Jim Johnson, Associate Justice.

text:
    Garner v. Rogers.
    5-2675
    356 S. W. 2d 418
    Opinion delivered April 23, 1962.

      Barber, Henry, Thurman & McCaskill, for appellant.

      Catlett & Henderson, for appellee.
   Jim Johnson, Associate Justice.

This is a workmen’s compensation case. The dispute is over whether Walter B. Rogers, a deceased workman, was an employee of appellant, D. H. Garner, Contractor, at the time of receiving the injury which took his life.

It is appellants’ forceful contention that the deceased was an independent contractor. The Workmen’s Compensation Commission found the deceased to be an employee within the meaning of the Workmen’s Compensation Act. This finding was affirmed by the Pulaski Circuit Court, all of which results in this appeal.

For reversal appellant relies upon only one point, i.e., “There is not sufficient competent evidence in the record to warrant the making of the award.”

The unchallenged facts set forth in the briefs are as follows:

Walter B. Rogers, prior to his death on July 8, 1960, owned a dozer, a loader and a truck, on which he hauled the equipment. He worked for anyone who called for his services and occasionally would hire at random someone to help him on an hourly basis, as he did not need a full time employee because he himself operated both the dozer and the loader. He almost invariably worked on an hourly basis, and was paid $12.50 per hour for his work. His widow, appellee Marie Rogers, kept his records, and each night would enter therein the number of hours he worked the preceding day.

At approximately 6:00 or 6:30 o ’clock on the morning of July 8, 1960, appellant D. H. Garner, Contractor called Rogers by telephone and asked if his dozer was available. Upon receiving an affirmative reply, appellant advised Rogers where the job was located and told him to help clear out the small timber on a designated right-of-way near the armory building of the Little Rock University. Appellant stated that the work would last approximately two days; that he would be paid upon completion of the work at the rate of $12.50 per hour; and that he should report as soon as possible for appellant needed immediate assistance, since all of the equipment of appellant was in use.

At the time Rogers began the work the appellant was using his employees, James D. Gray as a scraper operator, Ted Knoedl, as a timber cutter, and Lee Blair, Jr., as a dozer operator, in the performance of the clearing contract which appellant had undertaken. A short time after Rogers commenced work his dozer came in contact with a live wire and he was fatally injured.

After the death of Rogers, the appellee, Marie Rogers, upon the request of appellant, prepared and mailed to appellant a statement for dozer work of 40 hours at $12.50 per hour, totaling $500.00. Appellant had agreed to this amount because the dozer was inactive for several days subsequent to and on account of the death of Rogers.

Section 81-1302(b), Arkansas Statutes, defines an employee as follows:

“Employee means any person ... in the service of an employer under any contract of hire or apprenticeship, written or oral, express or implied . . .”

It early was held that in determining whether one is an employee or an independent contractor, the Workmen’s Compensation Act is to be given a liberal construction in favor of the workman, any doubt is to be resolved in favor of his status as an employee, rather than an independent contractor. Irvan v. Bounds, 205 Ark. 752, 170 S. W. 2d 674; Parker Stave Company v. Hines, 209 Ark. 438, 190 S. W. 2d 620; Wren v. D. F. Jones Construction Co., 210 Ark. 40, 194 S. W. 2d 896; Farrell-Cooper Lumber Company v. Mason, 216 Ark. 797, 227 S. W. 2d 445; and Feazell v. Summers, 218 Ark. 136, 234 S. W. 2d 765.

This Court in Parker Stave Company v. Hines, supra, specified these indicia for determining whether a person employed to do certain work was an independent contractor or a servant: (a) control over the work which is reserved by the employer, (b) tbe time for which the workman is employed, (c) the right to terminate the employment without liability, (d) the method of payment, whether by time, job, piece or other unit of measurement, and (f) the obligation to furnish necessary tools and equipment.

This Court has consistently stated that in testing the sufficiency of evidence the testimony must be weighed in its strongest light in favor of the Commission’s findings, and if there is any substantial evidence to support them, such findings will be affirmed. The Commission acts as a trier of facts, and on appeal its findings are entitled to the force and effect of a jury verdict. See: Reynolds Metals Company v. Robbins, 231 Ark. 158, 328 S. W. 2d 489.

Following these rules, without detailing the evidence here, suffice it to say we find from a careful examination of the record that there is some substantial evidence, though extremely close, from which the Commission could have concluded that the tests as set out in Parker Stave Company v. Hines, supra, were met.

Affirmed.


author: Neill Bohlinger, Associate Justice.

text:
    Ellis v. State.
    5035
    356 S. W. 2d 426
    Opinion delivered April 23, 1962.
    [Rehearing denied May 21, 1962.]

      Kenneth Coffelt, for appellant.

      Frank Holt, Attorney General, by Jack Holt, Jr., Asst. Attorney General, for appellee.
   Neill Bohlinger, Associate Justice.

A first degree murder information was filed against the appellant in the Saline Circuit Conrt on October 17, 1960. In that information appellant was charged with the murder of Pedro Rabb, alias Smiley Brown.

Upon a trial in the Saline Circuit Court, a jury found the appellant guilty of manslaughter and fixed his punishment by imprisonment in the State Penitentiary for seven years. To reverse this finding and judgment the appellant has appealed and for reversal relies upon the following points:

“1. The trial court erred in giving State’s Instruction No. 9 over the general and specific objections of the appellant.
2. The trial court erred in giving State’s Instruction No. 10 over the general and specific objections of the appellant.
3. The trial court erred in refusing to declare a mistrial at the request of the appellant because of the misconduct of the Prosecuting Attorney in his examination of defense witness, Jessie Johnson.”

In addition to these points, the appellant has argued in his brief that he was convicted of manslaughter when there was no proof of manslaughter ever introduced by the State and that the jury should have either found him guilty of first or second degree murder or acquitted him. With this theory we do not agree. Manslaughter is one of the degrees of murder and the act of the appellant in pleading self-defense placed the issue of manslaughter before the court.

In Bruder v. State, 110 Ark. 402, 161 S. W. 1067, this court said:

“* * * This court has held that where a jury believes that the defendant shot under the belief that he was about to be assaulted but that he acted too hastily and without due care, and was therefore not justified in taking life under the circumstances, he is guilty of manslaughter. Allison v. State, 74 Ark. 444, [86 S. W. 409], Brooks v. State, 85 Ark. 376, [108 S. W. 205].”

In Middleton v. State, 158 Ark. 642, 240 S. W. 413, this court found there was evidence sufficient to make out a case of voluntary manslaughter notwithstanding the fact that the jury might, from the testimony, have convicted appellant of a higher degree of homicide. The appellant cannot complain if he is found guilty of a lesser offense than the evidence justifies because that finding inures to his benefit.

Among other matters, the appellant contends that the trial court erred in giving State’s Instruction No. 9 which was as follows:

“You are instructed that manslaughter is the unlawful killing of a human being without malice, express or implied and without deliberation. Manslaughter must be voluntary upon sudden heat of passion, caused by a provocation apparently sufficient to make the passion irresistible. That is voluntary manslaughter.”

Instruction No. 9 should be read in conjunction with State’s Instruction No. 10 which was as follows:

“You are instructed in this connection that if you have a reasonable doubt as to the degree of the offense you must give the defendant benefit of the doubt and find him guilty only of the lower degree. In other words, if he is guilty and you have a reasonable doubt as to whether it is murder in the first or murder in the second degree, you must convict only of murder in the second degree. If you have a reasonable doubt as to whether it is murder in the second degree or manslaughter, you should convict him only of manslaughter.

As I have stated to you, the burden of proof is upon the State to prove all the allegations in the indictment and that beyond a reasonable doubt. The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the defendant. Unless by proof on the part of the State, it is sufficiently manifest that the offense amount to only manslaughter, or that the accused was justified or excused in committing the homicide.”

Instruction No. 10, above, is not the same instruction that was given by the trial court in Mode v. State, 231 Ark. 477, 330 S. W. 2d 88. The instruction in the Mode case was as follows:

“The defendant, * * *, interposes a plea of self defense, that the killing of * * * under the circumstances constituted justifiable homicide. The burden of proof is upon the defendant, * * *, to prove such defense by a preponderance of the evidence.”

The error in the Mode case, supra, was the statement that the defendant in that case was required to prove such a defense by the preponderance of the evidence. We do not have that in the case before us. In this case the court instructed:

“The killing being proved, the burden of proving circumstances of mitigation that justify or excuse the homicide shall devolve on the defendant. Unless by proof on the part of the State, it is sufficiently manifest that the offense amount to only manslaughter, or that the accused was justified or excused in committing the homicide. ’ ’

This instruction follows the statute and a similar instruction has been approved by this court in Covey v. State, 232 Ark. 79, 334 S. W. 2d 648; Brown v. State, 231 Ark. 363, 329 S. W. 2d 521; Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, and Tignor v. State, 76 Ark. 489, 89 S. W. 96.

In the Brown case, sufra, we said:

“ * * * Appellant contends this instruction is misleading, in that the jury could feel that if there was a reasonable doubt of the guilt of Brown on the murder charge, they could still convict him of manslaughter. The instruction is copied from the statute (Ark. Stats. § 41-2246). In Tignor v. State, 76 Ark. 489, 89 S. W. 96, this court said: ‘Again, the court gave section 1765 of Kirby’s Digest [Ark. Stats. 41-2246], to the effect that, the killing being proved, the burden of proving circumstances that justify or excuse the homicide devolves upon the accused, etc. Now, this instruction is taken from the statute, and is the law, but it should have been accompanied with an instruction that on the whole case the guilt of the defendant must be proved beyond a reasonable doubt, so that the jury might understand that, though the burden of proving acts of mitigation may devolve on the accused, it is sufficient for him to show facts which raise in the minds of the jury a reasonable doubt as to his guilt. * * * ’

In Hogue v. State, 194 Ark. 1089, 110 S. W. 2d 11, the identical instruction was given. In an opinion written by the late Justice Frank Smith, we said: ‘It is argued that this instruction placed upon the defendant the burden of proving his innocence, inasmuch as he admitted the killing. Such, however, is not the effect of the instruction when read in connection with instruction No. 11, given by the court, reading as follows: “Under the law the defendant is presumed to be innocent. This presumption is evidence in his behalf and protects him from a conviction at your hands until his guilt is established to your satisfaction beyond a reasonable doubt.”

In the instant case, the jury was instructed that appellant started out in the trial with the presumption of innocence in his favor, and that such presumption ‘follows him throughout the trial’, and until they were convinced of his guilt beyond a reasonable doubt. ’ ’

The instructions before us meet the test laid out in the foregoing cases.

State’s instructions four and five are as follows:

[No. 4] “The defendant starts out in the beginning of the trial with the presumption of innocence in his favor. This is a presumption that begins with the trial of the case and continues throughout the trial, or until the evidence convinces you of his guilt beyond a reasonable doubt. You pass upon the guilt or innocence of the defendant, and in this case, you will decide according to the law and the evidence, if this defendant is guilty and what he is guilty of, and what his punishment should be, if guilty.”

[No. 5] “You have been told that you should give the defendant the benefit of a reasonable doubt. Reasonable doubt is not any possible or imaginary doubt, because everything that depends upon human testimony is susceptible of some possible or imaginary doubt. To be convinced beyond a reasonable doubt is that state of the case which, after a careful consideration and comparison of all the testimony, leaves the minds of the jurors in that condition that they feel an abiding conviction to a moral certainty of the truth of the charge. A moral certainty of the truth of the charge is such a certainty as you would be willing to act upon in the important affairs of your own life.

If you find the defendant guilty, and you are satisfied of that beyond a reasonable doubt, then it is your duty to convict him and to punish him in such a manner as commensurate with the crime that you find him guilty of. If you find that he is not guilty, or if you have reasonable doubt of his guilt, it is your duty to acquit him. This question you alone can decide. Exercise your reason, your judgment, your common sense and experience, as I have heretofore told you and give to the testimony of any and all witnesses such weight you think it is entitled to.”

There is thus correctly presented to the jury the law of presumption of innocence and reasonable doubt, and the matter of reasonable doubt is also included in Instruction No. 10.

The appellant contends that the court erred in refusing to declare a mistrial because of the examination by the prosecuting attorney of defense witness Jessie Johnson. The appellant objected to questions propounded by the prosecuting attorney to the witness, Johnson, as to whether or not the witness had been drinking that day. The witness testified that he had not had a drink in thirty years. The attorney for the appellant objected to the question and the court sustained the objection. The whole matter would have been closed then and there except that the attorney for the appellant, on redirect examination, asked his witness, Johnson, if he drank whiskey, how long it had been since he had had a drink, to which the witness replied that he did not drink and had not had a drink of whiskey since 1929. We do not know what prompted the question in the first place, but it is noted that the questioning by appellant’s attorney on redirect was more searching than that of the prosecuting attorney on cross-examination. We fail to see anything in the questions or answers that tended to impeach the witness or to lessen the weight of his testimony and we find that no prejudicial error resulted in the matter.

Finding no error, the case is affirmed.

In Be Bules Governing Admissions to the Bar.

Per Curiam:

Upon the recommendation of the State Board of Law Examiners the following orders are made with respect to that Board and its methods of procedure:

1. In the Buies Governing Admission to the Bar, subhead Bequirements for Taking Examination, paragraph 2a is amended to read as follows:

a. Graduation from a law school approved by the American Bar Association or by the State Board of Law Examiners, but each applicant must have completed at least 1,250 class room hours of instruction prior to hia graduation. This change is to be effective for bar examinations conducted after January 1, 1963.

2. The State Board of Law Examiners, in accordance with its existing practice, is expressly authorized to destroy all examination papers at the time of the next succeeding bar examination.

3. The per diem of the members of the State Board of Law Examiners is fixed at $25.00 per day.

4. The Board is authorized, effective July 1, 1963, to add Legal Ethics to the subjects included in the bar examinations and for that purpose to increase by thirty minutes the time allowed for the examination.


author: Carleton Harris, Chief Justice.

text:
    Aldridge v. Marco Chemical Co.
    5-2679
    356 S. W. 2d 615
    Opinion delivered April 30, 1962

      Keith, Clegg <$ Eckert, by Oliver M. Clegg, for appellant.

      Rose, Meek, House, Barron, Nash & Williamson, by J. W. Barron, for appellee.
   Carleton Harris, Chief Justice.

The sole question in this litigation is whether appellee is amenable to service under the provisions of Section 27-340, Ark. Stats. (1947), or to state it differently, did the Columbia County Circuit Court acquire jurisdiction over Marco Chemical Company, a foreign corporation, by virtue of service obtained under the authority of that section. Section 27-340 provides as follows:

“Any non-resident person, firm, partnership, general or limited, or any corporation not qualified under the Constitution, and laws of this State as to doing business herein, who shall do any business or perform any character of work or service in this State shall, by the doing of such business or the performing of such work, or services, be deemed to have appointed the Secretary of State, or his successor or successors in office, to be the true and lawful attorney or agent of such non-resident, upon whom process may be served in any action accrued or accruing from the doing of such business, or the performing of such work, or service, or as an incident thereto by any such non-resident, or his, its or their agent, servant or employee. Service of such process shall be made by serving a copy of the process on the said Secretary of State, and such service shall be sufficient service upon the said non-resident of the State of Arkansas, provided that notice of such service and a copy of the process are forthwith sent by registered mail by the plaintiff, or his attorney, to the defendant at his last known address, and the defendant’s written return receipt, or the affidavit of the plaintiff, or his attorney, of compliance herewith are appended to the writ or process and entered in the office of the Clerk of the court wherein said cause is brought. # * * 3?

Appellants, engaged in poultry raising and egg producing, instituted suit against appellee, alleging, inter alia:

‘ ‘ That each of the undersigned obtained from Ark-La Feed and Fertilizer Company of Magnolia, Arkansas, by purchase of otherwise, during the period from January 30, 1958, to about June 1, 1958, poultry feed containing a substance manufactured and sold by the defendant to the said Ark-La, and known as Marcol B-75; that said Mar-col B-75 was a vegetable oil fat sold and delivered by the defendant to the said Ark-La for the purpose of mixing the same with other ingredients into poultry feed; that the said Ark-La used, combined and incorporated Marcol B-75 in the same form in which it was received from and delivered by defendant with other ingredients in the manufacture of its poultry feed in the manner recommended by the defendant.
That upon consuming feed containing said Marcol B-75, sold and delivered by defendant to Ark-La on and after January 28, 1958, poultry belonging to plaintiffs became sick in large numbers; that said sickness was identified as ‘Disease X’ or ‘Water Belly’; * * * that large numbers of poultry died, that large numbers were condemned as unfit for human consumption by the United States Department of Agriculture inspectors; that large numbers were otherwise affected so as to cause great loss of weight and productivity as layers or breeders.
Plaintiffs are informed and believe, and upon such information and belief, allege that said Mareol B-75 contained a dangerous and deleterious substance or injurious element at the time it was sold and delivered by defendant, so that it was not fit to be combined with other ingredients in poultry feed, * * *.
* * * as a result of eating the feed above described, large numbers of poultry belonging to plaintiffs died and that such deaths resulted from poison contained in the feed delivered to these plaintiffs by Ark-La; that such feed was poisonous in that it contained foreign and deleterious substances which were in the fat furnished Ark-La by the defendant, Marco Chemical Company; * * # > J

Various counts of alleged negligence on the part of appellee were recited in the complaint, and appellants sought judgment in the amount of $9,950.63. Service was had upon the Secretary of State as agent for service of Marco Chemical Company, and appellee was notified as provided in Section 27-340. Thereafter, the Company filed its motion to quash the process issued, and to dismiss the complaint, for the reason that it was a foreign corporation, and had not been authorized to transact business intrastate in Arkansas, and had not designated an agent within the State upon whom process could be served.

“At no time material hereto, has it done any business or performed any character of work or services in the State of Arkansas, nor is it now doing so. * * *

The said Secretary of State is not now and never has been an agent of this defendant upon whom process may be served for it. This Court does not have jurisdiction over the person of this defendant and cannot obtain such jurisdiction by virtue of the purported service as aforesaid. * * *

Assumption by this Court of jurisdiction over the person of the defendant Marco Chemical Company by virtue of the summons issued herein and the purported service thereof as alleged in paragraphs 2 and 3 hereof would be to deny said defendant due process of law in violation of the Fourteenth Amendment to the Constitution of the United States and would violate Article VIII, Sec. 3, of the Constitution of the United States, giving to the Congress of the United States the power to regulate the commerce among the several states.”

On hearing, the court held that the motion to quash should be sustained, and upon appellants’ announcing that they elected to stand upon the service of process had, the court dismissed the complaint. From the judgment so entered, appellants bring this appeal.

According to a stipulation entered into between the parties, appellee, Marco Chemical Company, is a foreign corporation, organized and existing under the laws of the state of Texas. It has not qualified to transact business in Arkansas. The company is principally engaged in selling animal feeds and ingredients therefor, and does not now have, nor has it ever had or maintained in the state of Arkansas any office, warehouse, or place of business whatsoever. Nor has it ever maintained within this state any physical facilities or any stock or merchandise. The company has no bank account within this state, and no salesmen or representatives who reside in Arkansas. Dealings with Ark-La Feed & Fertilizer Company have been handled, according to the stipulation, in the following manner:

‘ Orders for its products from Ark-La Feed & Fertilizer Company were either sent by mail addressed to it at its office in Fort Worth, Texas, or were telephoned to it at its said office in Fort Worth. After the order was accepted the sales confirmation was mailed by defendant from Ft. Worth, Texas, to Ark-La Feed & Fertilizer Company in Magnolia, Arkansas. Prices on products other than B-75 were quoted on a basis of delivered Magnolia. The price of B-75 was FOB Fort Worth. Payment was accomplished either by the drawing and depositing of a draft in Ft. Worth, Texas, by appellee on Ark-La Feed & Fertilizer, or as an alternative, Ark-La Feed & Fertilizer Company usually mailed to Marco at Ft. 'Worth, its check in payment of its account. Delivery was accomplished by appellee’s own trucks and drivers, but the drivers did not make any collections for Marco, nor receive for appellee the purchase price for merchandise delivered, or any part thereof, nor did they have any authority to do so. All deliveries were made from Fort Worth, Texas, to Ark-La at Magnolia, Arkansas. * * *
(2)
It was customary for the driver of the appellee’s truck to unload B-75 by means of a pump which was driven by the truck engine so that the product was pumped through a hose or pipes into the receiving tanks of Ark-La Feed & Fertilizer Company.
(3)
At all material times appellee has had business relations with customers in Fayetteville, Springdale, Fort Smith, Rogers, Little Rock, Blytheville, Chatfield, and Hughes, all in Arkansas, and all of which were handled and accomplished in the same manner as its dealing with Ark-La Feed & Fertilizer Company as set out above.
(4)
Appellee mailed from its office in Fort Worth, Texas, to Ark-La Feed & Fertilizer Company a copy of a drawing showing a proposed layout of pipes and tanks for receiving B-75.
(5)
Appellee solicited Ark-La Feed & Fertilizer Company to buy B-75 by mail, telephone, and in person, but no orders were taken by appellee at Magnolia, Arkansas. Appellee furnished Ark-La with literature designed to show the merits of B-75, which literature was published by institutions or representatives of institutions not connected with appellee. This solicitation was in 1956 because of the first delivery of B-75 to Ark-La Feed & Fertilizer Company was on January 28, 1957. Subsequent to January, 1957, a representative of appellee called upon Ark-La Feed & Fertilizer Company on several occasions in the interest of good will and good customer relations. No orders were taken on any of these visits.’’

Appellee vigorously contends that everything done was in interstate commerce; that its activities do not subject it to service of process as provided in Section 27-340, and, in support of the position taken, relies mainly upon our holding in Rodgers v. Howard, Judge, 215 Ark. 43, 219 S. W. 2d 240, the opinion being delivered on April 4, 1949. As a matter of background (which we deem essential to a proper understanding of the issue involved), it should first be pointed out that the United States Supreme Court in International Shoe Company v. State of Washington, et al, 326 U. S. 310, on December 3, 1945, held that a course of activity consisting merely of the solicitation of business, admittedly less than the “doing of business”, subjected the acting foreign corporation to personal jurisdiction based upon constructive service. In 1947, the Arkansas General Assembly passed Act 347 (which includes the language of Section 27-340, heretofore mentioned). Dr. Robert. A. Leñar, Distinguished Professor of Law, then Dean of the University of Arkansas School of Law, in an article appearing in 3 Arkansas Law Review, p. 18, wrote:

“The United States Supreme Court recently held that a course of activity consisting merely of the solicitation of business, which was admittedly less than the ‘doing of business’, in Washington enabled that state to subject the acting foreign corporation to personal jurisdiction based on constructive service. The Arkansas General Assembly may have been motivated by that decision in the enactment of Act 347 of 1947, providing that ‘any non-resident person, firm, partnership ... or any corporation not qualified . . . as to doing business herein, who shall do any business or perform any character of work or service in this State shall (be subject to constructive service) in any action . . . accruing from the doing of such business, or the performing of such work, or service. . . .’ The application of this statute was in question in a recent Federal case arising in Arkansas, and it was interpreted as not covering a cause of action arising out of a contract for an agent to solicit business in Arkansas, when the making of the agency contract and the solicitation thereunder were the corporation’s only activities in Arkansas. This interpretation was on the express theory that the statute would be unconstitutional if interpreted to apply to the facts currently involved, since they did not amount to doing business’ in the state. The Washington case was not cited. It is at least possible that a broader interpretation of Act 347, by the state courts, would not only be borne out by the wording of the Act but would, on the authority of the Washington case, be sustained as to its constitutionality by the United States Supreme Court.” In April of 1949, the Rodgers case was decided. Rodgers contended that Campbell Soup Company was amenable to service of process under Act 347, and the Court, noting that the contention posed the difficult question as to the applicability of the rule announced in the International Shoe Company case, said:
“Assuming, but not deciding, that this evidence is properly before us, and that this is the appropriate method for presenting the issue, the transcript reflects that a traveling salesman of the Campbell Soup Company solicited orders from the Stuart Grocery Company in Nashville, Arkansas; that such orders were forwarded by the salesman to the home office of the Campbell Soup Company in New Jersey for acceptance or rejection; that sometimes the Stuart Grocery Company sent its orders direct by mail to the Campbell Soup Company in New Jersey; that upon acceptance of any order by the Campbell Company at its home office in New Jersey (whether the order was obtained by the salesman or sent direct by mail as aforesaid), the shipment from the Campbell Soup Company to the Stuart Grocery Company was packed, marked, and duly identified as for that party, and placed in a railroad carload shipment containing goods for distribution to other purchasers in the Nashville freight territory; that the entire carload moved by rail from New Jersey to the Hunter Transfer Company at Texarkana, Arkansas; that this last-mentioned concern opened the car and then sent to the Stuart Grocery Company its shipment and likewise sent other purchasers their shipments from the said railroad car. In short, the Hunter Transfer Company broke the shipment to less-than-carload lots — all of which was evidently a freight saving device. Stuart Grocery Company paid direct to Campbéll Soup Company in New Jersey.
Because of the activities of the Hunter Transfer Company in Texarkana, Arkansas, petitioner claims that the Campbell Soup Company was doing business in Arkansas, and therefore capable of being brought into the Arkansas courts by service of process on the Secretary of State under Act 347 of 1947, or service on the State Auditor under § 2250, Pope’s Digest. The case of Crawford v. Louisville Silo & Tank Co., 166 Ark. 88, 265 S. W. 355, and Citizens Union National Bank v. Thweatt, 166 Ark. 269, S. W. 955, are authority for our holding against petitioner’s contention. In those cited cases, just as here, a non-domesticated foreign corporation accumulated several shipments into one carload shipment to an Arkansas point, where an agent of such corporation distributed the individual shipments to the various purchasers; and we held that such shipments were interstate commerce and did not constitute ‘doing business’ in Arkansas by the foreign corporation within the purview of our statutes.
* * * Petitioner claims that Act 347 of 1947 changed the rules of law announced in the Crawford-Louisville and Citizens Bank-Thweatt cases, supra, and petitioner urges that the said Act allows the Campbell Company to be sued in a case such as this one, since (1) Hunter Transfer Company was the agent of the Campbell Company to break and subdivide the carload shipment, and (2) such act by the Hunter Transfer Company was done and performed in the State of Arkansas.
* * * We pass this question as one of the unnecessary speculation. Whether the Legislature could validly enact such legislation is not for us to decide at this time. We hold that Act 347 of 1947 was not intended to change the rule concerning the breaking of the journey of interstate shipments as announced in the cases of Crawford v. Louisville Silo & Tank Co. and Citizens Bank v. Thweatt, supra. Until such a change of the rule in these cases be attempted by the Legislature, we need not speculate on its constitutionality.”

Less than three months later, this Court, in Chapman Chemical Co. v. Taylor, et al, 215 Ark. 630, 222 S. W. 2d 820, held that service on appellant, a foreign corporation, under the provisions of Act 347, was valid. There, as here, the foreign corporation argued that it had done no business in this state sufficient to bring it within the provisions of the Act. The facts, as set forth in the opinion, showed that the company sought to introduce the use of 2-4-D in the rice growing area of the state, and to that end, its representatives came into the state and conferred with officers of the Bice Growers Association. A test was made in this state to demonstrate that 2-4-D dust could be distributed from an airplane. From the opinion:

‘ ‘ Chapman brought with him in his automobile from Memphis to Stuttgart in this State a quantiy of the powder or dust, for the purpose of making the test, and he paid the aviator for his services in making it. Chapman had cooperated with state experimental stations in this State in working out projects for the development of uses for the products sold by the Chemical Co. That Company provided literature containing instructions for the use of 2-4-D to local distributors in this State, to be given to prospective users of the Chemical Co. products. It joined Arkansas local distributors in advertising Chemical Co. products in this State, and arranged for the advertisement thereof in a local paper, one-half of the costs of which it paid and finally it brought a suit, now pending against the Elms Co. for the purchase price of the dust the distribution of which by plane gave rise to this law suit.

The case of Frene v. Louisville Cement Co., 77 U. S. App. D. C. 129, 134 F. 2d 511, 146 A. L. R. 926, deals at length and reviews many authorities on the concept of doing business by a foreign corporation. The opinion was written by Justice. Rutledge then an Associate Justice of the U. S. Court of. Appeals for the District of Columbia, now a member of tbe Supreme Court of the United States. It was there said that the mere solicitation of business whether on a casual or occasional or regular, continuous and, long continued basis does not constitute doing business in-.a foreign state, and it may be added that filling orders, thus obtained by shipping goods in interstate comhiercé would not constitute doing business. But it was said in addition, ‘ Consequently it is (not) clear that if, in addition to a regular course of solicitation, other business activities are carried on, such as maintaining a warehouse, making deliveries, etc., the corporation is “present” for jurisdictional purposes. And very little more than “mere solicitation” is required to bring about this result.’

The facts herein recited constitute something more than the creation of good will or solicitation of business, and while it was shown that none of the Chapman products were stored for delivery in this State, it was shown that a portion thereof was actually brought into and delivered in this State by the company’s authorised representatives, in fact, its President, himself, and this was done for the purpose of making the test which was made in this State which induced the sale of the very product, the use of which, for the purpose intended, resulted in the damage for the compensation of which this suit was brought. ’ ’

In the following year (1950), in American Farmers Insurance Co. of Phoenix, Arizona v. Thomason, Guardian, 217 Ark. 705, 234 S. W. 2d 37, in an opinion written by Dr. Leflar (who had, in the meantime, been named Associate Justice of the Court), this Court said:

“In International Shoe Company v. Washington, 326 U. S. 310, it was held that a course of activity consisting merely of the solicitation of business by salesmen, which was admittedly less than the ‘doing of business’, in Washington enabled that state to subject the foreign corporation to personal jurisdiction based on constructive service.”

A footnote at this point reads as follows:

“A statute providing for service in Arkansas on this theory was thereafter enacted, in Act 347 of 1947, Ark. Stats., § 27-340. See 3 Ark. L. Rev. 22-24. There are many cases, both in Arkansas and elsewhere, holding that a state may base jurisdiction upon the doing of the act (less than ‘doing business’) out of which arises the cause of action sued upon” (citing cases).

This, then, is the history of Act 347, and the cases decided thereunder. In the final analysis, appellee depends upon the Rodgers case, and appellants rely upon the Chapman case.

Without hesitation or equivocation, we hold that the instant litigation is controlled by the Chapman case. Not only was the product delivered by the company’s employees (as in the Chapman case), in a company truck, but this truck was especially equipped to make delivery of the product. The stipulation mentions the various activities engaged in by Marcol Chemical Company, and it is noted that deliveries have been made over the state at various times, in addition to several deliveries to Ark-La. In other words, this is not a case of a single, isolated delivery, but consistent sales and deliveries have been made. We think logic unquestionably supports the view taken. Why should a company be permitted to solicit business through personal appeal by its salesmen, sell its product, and make delivery of that product through use of the highways of this state, and to enjoy this privilege without the obligation of defending an action for alleged damages occurring to Arkansas residents because of negligence of the company? This would leave appellee corporation in the nnnsnal, though enviable, position, of “having its cake and eating it, too.” The legislature undoubtedly intended, in passing Act 347, to liberalize and extend the area in which foreign corporations could be required to answer in Arkansas for damages arising out of the conduct of their activities within this state. While we think the facts in this case are distinguishable from the facts in the Rodgers case, we do not predicate, nor base this opinion, upon that premise. Actually, we are of the view that the Chapman case, in effect, overruled the Rodgers case, though it did not specifically so state. Therefore, as a matter of removing all doubt, we explicitly state that the Rodgers case can no longer be relied upon as authority for foreign corporations to evade the jurisdiction of our courts in factual situations similar to the one at bar.

The judgment is reversed, and the cause remanded for further proceedings not inconsistent with this opinion.

George Rose Smith, J., not participating.

       Emphasis supplied.

       The stipulation also reflects that Marco duly registered its products for sale in this state with the State Plant Board as required by Act 108 of 1951; it also filed with the Board quarterly tonnage of its products shipped into the state. Appellants argue and cite authority that this is a further fact which would support their position that Marco Chemical Company was amenable to service in our courts. Since this fact is not considered controlling, we do not enter into a discussion of same.

       We think there is a vast difference, on the one hand, in shipping goods or products into the state, and having such products delivered by commercial carrier, and, on the other hand, in delivering the product through company representatives.


author: Ed. F. McFaddin, Associate Justice. Sam Robinson, Associate Justice,

text:
    Planters Lumber Co. v. Jack Collier East Co.
    5-2646
    356 S. W. 2d 631
    Opinion delivered April 30, 1962.

      H. B. Stubblefield and Josh W. McHughes, for appellant.

      Rose, Meek, Blouse, Barron, Nash S Williamson, by Stanley E. Price; Moses, McClellan, Arnold Owen & Mc-Dermott, by James R. Howard, for appellee.
   Ed. F. McFaddin, Associate Justice.

This is a controversy for priority as between a construction money mortgage and materialmen’s liens; and necessitates a study of our Lien Statutes (§ 51-601 et seq. Ark. Stats.). The Chancery Court held that the construction money mortgage had priority; and the materialmen have appealed.

The facts are stipulated. Mr. Creed undertook to erect a residence for himself. On October 31, 1959, at his order, Big Bock Stone & Material Company (hereinafter called "Big Bock”) delivered certain building materials to the lot, and they were used in the building and a lien claim duly filed therefor. At eleven A.M. on November 10, 1959 there was filed for record a mortgage from Mr. Creed to appellee, Jack Collier East Company, Inc. (hereinafter called "East”), which instrument recited that it was a construction mortgage for a definite sum of money. On the afternoon of November 10, 1959 Mr. Creed purchased some materials from appellant, Planters Lumber Company (hereinafter called “Planters”), which materials were delivered to the lot on November 11, 1959, and, with other materials subsequently purchased, were all used in the construction of the building, and a lien claim was duly filed for the amount unpaid. On April 1, 1960, appellant Young Tile Company (hereinafter called “Young”), furnished Mr. Greed materials used in the construction of the building and a lien claim was likewise duly filed for the amount unpaid.

On September 14, 1960, Mr. Creed being in default, East filed foreclosure on its said mortgage, naming, inter alia, Big Rock, Planters, and Young as defendants, each of which claimed its lien to be superior to the East mortgage on the theory that Big Rock had delivered materials to the lot ten days before the East mortgage was filed for record; that the date of the delivery of the Big Rock material to the lot was the ‘ ‘ commencement of such building”; and that Planters and Young could claim their liens from the “commencement of such building” because Big Rock furnished the material before the filing of the East mortgage. East recognized the superiority of the claim of Big Rock, and paid it; but insisted that the claims of Planters and Young were inferior to the East mortgage, which had been recorded prior to the furnishing of any materials by Planters or Young. As aforesaid, the Chancery Court held that the East mortgage was superior to the lien claims; and Planters and Young have appealed.

East relies primarily on that part of § 51-605 Ark. Stats. (Section 3 of Act 146 of 1895) which, after stating that materialmen have a lien,' says: “. . . provided, however, that in all cases where said prior lien or incumbrance or mortgage was given or executed for the purpose of raising money or funds with which to make such erections, improvements or building, the said lien shall be prior to the lien given by this act.” Planters and Young rely primarily on § 51-607 Ark. Stats, (being Section 5 of Act 146 of 1895), which says: “The lien for work and materials as aforesaid shall he preferred to all other incumbrances which may be attached to or upon such building ... or other improvements, or the ground, or either of them, subsequent to the commencement of such buildings or improvements.” The appellants insist: (a) that the furnishing of their materials relates back to the “commencement of such building”; (b) that they have a lien from the day Big Rock furnished its materials because that was the “commencement of such building”; and that East could not defeat the priority of their claims by paying the Big Rock claim, as East did.

The determination of the relative superiority between the mortgage lien and the materialmen’s liens requires a careful consideration of the applicable statutes and the cases construing them. Section 51-1002 Ark. Stats, (which comes to us from the Revised Statutes of 1836), provides that a mortgage shall be a lien on the mortgaged property “. . . from the time the same is filed in the recorder’s office for record and not before. . . . ” So the East mortgage in this case was a lien on the property here involved from eleven A. M. November 10, 1959. Now let us examine the Lien Statutes to see the effective date of the liens of Planters and Young.

The statutes prescribing the time when material-men’s liens are effective are later statutes than the mortgage statute previously mentioned. The applicable lien statutes are contained in §51-601 et seq. Ark. Stats, (which come to us from the Act No. 146 of 1895, which was a replacement statute of the earlier Act 107 of 1873). We mention the germane language here applicable :

(A) Section 51-601 Ark. Stats, states: “Every . . . person who shall . . . furnish any material . . . for any building . . . upon land . . . under . . . any contract with the owner . . . upon complying with the provisions of this act . . . shall have for his . . . materials . . . furnished a lien upon such building . . . and upon the land belonging to such owner. . .

(B) Section 51-613 Ark. Stats, requires: “It shall be the duty of every person who wishes to avail himself of this act ... to file with the clerk of the circuit court of the county in which the building, erection or other improvement to be charged with the lien is situated, and within ninety (90) days after the things aforesaid shall have been furnished ... a just and true account . . . and ... a correct description of the property. . . . ”

(C) Section 51-607 Ark. Stats, (which comes to us also from Act 146 of 1895). provides: “The lien for . . . materials as aforesaid shall be preferred to all other incumbrances which may be attached to or upon such building ... or the ground . . . subsequent to the commencement of such buildings or improvements. ’ ’

So when the materialman files his account with the circuit clerk as provided by the said § 51-613 Ark. Stats., his lien dates back to the ‘ ‘ commencement of such building,” and becomes superior to any lien on the property that may have been placed there “subsequent to the commencement of such building.” This Legislative design of the subsequently filed materialmen’s lien being superior to the mortgage filed prior thereto has been recognized in many of our cases. One of the most outstanding is Apperson v. Farrell, 56 Ark. 640, 20 S. W. 514, which was decided under the 1873 lien statute hut which had an equivalent provision in Mansfield’s Digest § 4408. Some other cases clearly recognizing this “relation hack” to the commencement of the building for the liens of the mechanics or the materialmen are: Gunter v. Ludlam, 155 Ark. 201, 244 S. W. 348; Ferguson Lumber Co. v. Scriber, 162 Ark. 349, 258 S. W. 353; and Crown Central v. Frick-Reid, 173 Ark. 983, 293 S. W. 1012.

In § 51-605 Ark. Stats, it is provided that if the owner desires to obtain funds with which to erect the building or improvement on the land, he can execute a mortgage for that purpose and place it of record before the work commences, and then “. . . said lien shall be prior to the lien given by this act. ’ ’ However, in this instance, (a) the construction mortgage must he executed before the commencement of the building (Apperson v. Farrell, supra; and Shaw v. Rackensack, 174 Ark. 492, 295 S. W. 966); (b) the mortgagee must be bound to advance the money for the construction (Ashdown Hardware v. Hughes, 223 Ark. 541, 267 S. W. 2d 294); and (c) that fact must be stated in the mortgage (Jack Collier East Co. v. Barton, 228 Ark. 300, 307 S. W. 2d 863). In the case at bar the mortgage was a construction money mortgage and the mortgagee was bound to make the advancements; but it was stipulated that the mortgage was not placed of record before the ' ' commencement ’ ’ of the building. If Big Rock and East were the only litigants here, the case would be easy of decision because Big Rock furnished its materials on October 31, 1959, which was at least ten days before the recording of the mortgage; and the Big Rock lien was therefore superior to the East mortgage under the authority of Apperson v. Farrell, supra.

The complaint and the stipulation admit that Big Rock perfected its lien under § 51-613 Ark. Stats. East recognized this fact by paying the Big Rock lien during the course of this litigation. The question then becomes whether East, by paying the Big Rock lien claim, can defeat the other lien claimants, such as Planters and Young, whose materials were furnished subsequent to the recording of the East mortgage; and we answer that question in the negative. Section 51-611 Ark. Stats, states: “The liens for . . . things furnished as specified in this act . . . shall be upon an equal footing, without reference to the date of filing the account of lien; . . . Provided, such account or liens shall have been filed and suit brought as provided by this act.” This is § 9 of Act 146 of 1895 and clearly states that every lien shall be equal. So when the liens of Planters and Young were filed, they were on an equality with the lien of Big Rock. In Long v. Abeles Co., 77 Ark. 156, 93 S. W. 67, in construing this “equality statute,” this Court said:

“As we construe the provisions of the statute, every person who furnished materials to the contractor that went into appellant’s building, and who had complied with the law for preserving his lien, had a lien for the amount of the materials furnished, and this lien was on an equal footing with all other liens under the contract. If such liens were equal to or less than the contract price,, they had to be discharged by payment in full; if they exceeded the contract price, they had to be prorated. So, appellee, having complied with the lato as to notice and the filing of its claim with the circuit clerk, could, not be defeated of its lien by any payments that appellant may-have made to other bona fide lien claimants, under the-contract. Appellant could not discriminate between those who were entitled to liens under the original contract. He could not pay one and refuse another. To dischargeappellee’s claim for a lien, it was necessary to include it in any payment that was made of the bona fide claims under the contract. It could not be ignored entirely and defeated by the payment of other claims in full that had accrued under the contract, where the amount of these claims exceeded the contract price.” (Emphasis our own.)

Therefore, under the “equality statute” (§ 51-611 Ark. Stats.) when Planters and Young perfected their liens by complying with § 51-613 Ark. Stats., as they did, then their liens related back to “the commencement of such building” as stated in § 51-607 Ark. Stats.; said liens of Planters and Young were on an equality with the lien of Big Rock; and East could not by paying Big-Rock thereby defeat Planters and Young of the priority that they enjoyed because the Big Rock materials were furnished before the construction mortgage was placed of record, and Planters and Young were on an equality with Big Rock.

The Chancery decree is reversed and the cause remanded for the entry of a decree in accordance with this opinion.

G-eorge Rose Smith, J., not participating.

Harris, C. J., and Robinson, J., dissent.

The Chief Justice joins in the dissent.

Sam Robinson, Associate Justice,

dissenting. The majority has held that once a building project is commenced and material is supplied for the construction on credit, then one who subsequently takes a construction money mortgage to secure a loan to the property owner does so at the risk of having his mortgage declared inferior to anyone who thereafter supplies material for the project. To so hold is to strain our lien statutes to an extent never intended by the Legislature.

Ark. Stats. § 51-601 provides a materialman with a lien on a building and the land on which it is situated upon his furnishing materials for the construction of the building. Ark. Stats. §§ 51-605 and 607 when read together declare that all prior and subsequent encumbrances on the land and building thereon, except a construction mortgage, are inferior to the lien of the materialman.

In point of time the liens in this case were created as follows: (1) Big Rock, (2) East, (3) Planters, and (4) Young. The majority hold that Big Rock has priority over East, and this is no doubt correct, but in addition the majority say that the lien belonging to East is inferior to that of Planters and Young through a theory of “relation back”. The reasoning employed by the majority is that Planters and Young prevail due to the strength of the lien which Big Rock has, not on the strength of their own liens which were created subsequent in time to that of East, the mortgagee. With this reasoning I cannot agree.

The majority relies heavily on Apperson v. Farrell, 56 Ark. 640, 20 S. W. 514, but that case is not in point because it was decided in 1892 on the basis of the 1873 lien statutes (Acts 1873, No. 107), which made no provision for a construction mortgage. Our present lien statutes (Ark. Stats. § 51-601, et seq.) which supersede the 1873 Act do have such a provision.

A discussion of the other cases which the majority cite for the “relation back” theory would unduly lengthen this dissent. Suffice it to say that all of the cases cited have one common thread of fact running through them which is of the upmost importance in distinguishing them from the ease at bar; in none of the cited cases is more than one materialman seeking to prevail over a mortgagee who had loaned money to further the project, and in each instance the materialman seeking the lien had actually furnished material on the job' before the mortgage was recorded. In the case now under-consideration if the contest were between one mortgagee- and one materialman, i. e., Big Rock and East, then of course, Big Rock would prevail because it furnished the material before the mortgage was recorded, but the majority say Planters and Young also prevail over East. It will be recalled that they furnished material after the mortgage was recorded.

I fear the economic repercussions which will flow from the majority opinion. Following the rule set down by the Court today, no individual or lending institution can safely loan money to further a building project after one nail has been driven which has been purchased on credit. A lender willing to make a construction loan and. take a mortgage to secure it can not gain security for Ms loan by searching the records to determine the extent of prior liens on a building project, ascertain the amount of work done and materials furnished, and then act on the basis of such information. If he advances money on a project upon which construction has already begun, his mortgage would be inferior to those who might subsequently furnish labor or materials for the project. Prudent money lenders are not so reckless that they will chance seeing their security vanish into thin air. The ultimate blunt of the majority's decision will be felt by those who desire to build, but are unable to finance the entire venture from their own funds.

For the foregoing reasons I respectfully dissent from the opinion of the majority.

       The language in the mortgage was: “Grantor has applied to the grantee for a loan in the principal sum of Eighteen Thousand and no/100 Dollars ($18,000.00) to he used solely for and in the construction of a six room residence on above described property on the lands above described (sic) and the Grantee has agreed to make said loan for such purposes,. ..”

       Several states have mechanic lien statutes which provide that the lien when filed becomes effective from the “commencement of the building.” See Leidigh V. Wyatt (Kan.), 109 P. 2d 87; Security v. Sellards (Kan.), 3 P. 2d 481, 76 A.L.R. 1397; Bassett v. Swarts (R.I.), 21 A. 352; Mutual Benefit v. Rowand, 26 N.J. Equity 389; and Kelly v. Rosenstock, 45 Md. 389. In the case at bar it was stipulated that the Big Rock lien was prior to the recording of the East mortgage, which stipulation is tantamount to an admission that the “commencement of such building” was prior to the filing of the East mortgage.

       In Ark. Law Review, Vol. 12 p. 170, there is an article entitled: “Priority of Liens on Real Property in Arkansas: Mortgages, and Mechanics’ and Materialmen’s Liens.” In addition to the cases cited in this opinion, the following are also noted: Rust v. Kelley, 180 Ark. 517, 21 S. W. 2d 973; U. S. v. Westmoreland, 134 F. Supp. 898.

       In Lyle v. Latourette, 209 Ark. 721, 192 S.W. 2d 521, we gave a brief history of the more important lien statutes.