text:
    Trinity Universal Ins. Co. v. State Farm Mutual Auto Ins. Co., et al
    5-4909
    441 S.W. 2d 95
    Opinion Delivered May 26, 1969

      Smith, Williams, Friday & Bowen by George Pike, Jr. for appellant.

      Cock rill, Laser, McGehee, Sharp & Boswell for appellee (State Farm).

      S. Hubert Mayes, Jr. for appellee (Maryland Cas.).
   Carleton Harris, Chief Justice.

On November 22, 1964, appellant, Trinity Universal Insurance Company, had in force a family automobile liability policy issued to Marguerite (I. McCoy, in which the company agreed to pay oil behalf of the insured all sums which Miss McCoy should become legally obligated to pay as damages because of bodily injury arising out of the use of any automobile by the insured. The policy limits were $10,-000.00 for any person, and $20,000.00 for any occurrence. As to coverage of Miss McCoy with respect to a non-own ed automobile, the policy provided that the Trinity coverage should apply only as excess insurance over any other insurance available to the insured. On November 22, 1964, there was a collision between an automobile driven by Miss McCoy, the car being owned by Ralph Overstreet, and another vehicle operated b3r one Gloria Jean King, the King vehicle having three passengers,Gale Montgomery, Paul Waldron, and Cheryl Brandt. It was the view of appellant that a proximate cause of the collision was the negligence of its insured in driving on the wrong side of the road, and failing to keep a proper lookout. ■ The passengers in the King automobile received numerous injuries, and appellant company, after notifying State Farm Mutual Automobile Insurance Company (hereafter called “State Farm”) and Maryland Casualty Company (hereafter called “Maryland”) of the accident, and demanding that those companies admit coverage for the injuries sustained, settled the claims against Miss McCoy, when the appellee companies denied liability. The amount of ■ settlement was $9,729.34. Thereafter, Trinity instituted suit against appellees in the Pulaski County Chancery Court, seeking judgment for that amount, together with interest, costs expended, and other proper relief. The two appellees filed separate demurrers, and also a motion to transfer the case to law, and, after, amendments to appellant’s complaint, and to the demurrers filed by appellees, the court found -that the demurrers should be sustained; appellant’s complaint, as amended, was dismissed. From the decree so entered, Trinity brings this appeal.

The sole question before us is whether the court erred in sustaining the demurrers. In its complaint, appellant alleges the facts upon which it bases the claim against appellees. In addition io setting out its own coverage to bliss McCoy, appellant asserted that appellee, State Farm, at the time of the .accident, had in force a family automobile liability policy issued to Chris Floyd, under which, infer alia, the company had agreed to pay all sums which its insured might become obligated to pay as damages because of bodily injuries sustained by any person arising out of the use of any non-owned automobile by any relative of the insured using said automobile with the permission of the owner, or arising out of the use of a non-owned automobile by any other person with respect to liability, because of acts or omissions of a relative of the insured.

It was further asserted that Maryland had in force a family automobile liability policy issued to Ralph Over-street in which, infer alia, Maryland agreed to pay all sums which Overstreet should become legally obligated to pay as damages because of bodily injuries sustained by any person arising out of the ownership, maintenance or use of an automobile owned by Overstreet, or by any person operating the ear with the permission of this insured.

The alleged facts which legally obligated the two appellee companies are as follows:

bliss McCoy was operating the vehicle owned by Overstreet (insured by Maryland), and in which Lee Floyd, son of Chris Floyd (insured by State Farm) was riding, Miss McCoy and Floyd being engaged in a joint venture for their mutual benefit, one of the objects being for Floyd to teach Miss McCoy how to drive the Over-street vehicle. It was asserted that Floyd liad the. right to direct the manner of operation and course of the automobile. Tt is contended that this use of the Overstreet automobile by Marguerite McCoy and Lee Floyd was with the permission of Ralph Overstreet through the latter’s son, Don Overstreet.

It is further asserted in the complaint that appellant notified appellee companies and made a demand that they admit coverage for the injuries sustained by the King passengers, and that appellees settle or defend the claims which those persons were making against Miss McCoy and the estate of Lee Floyd. As previously mentioned, both appellees denied coverage, and Trinity alleged that it then proceeded in good faith and “in the exercise of its best judgment” to settle these claims for the amount previously mentioned, Trinity obtaining releases for any claim which those persons might have against all three of the insurance companies, and their insureds. It is alleged that the settlements were most reasonable because of the liability of McCoy and Floyd, and the amount of damages sustained by claimants.

Both companies filed demurrers. The demurrer of State Farm (after being amended) set out four grounds, viz., (1) that appellant had not commenced its action within three years from the date of the collision, and was therefore barred by the statute of limitations, (2) that appellant was acting as a mere volunteer, being under no obligation to make any payment, (3) that, under the provisions of Ark. Stat. Ann. § 66-4001 (Repl. 1966) appellant could not property bring a direct action against State Farm, and (4) that appellant has not exhausted its remedies against the estate of State Farm’s alleged insured, Lee Floyd. Maryland also relies upon the first three to sustain its position. Motions were also filed by each appellee to transfer the case to the Circuit Court.

"We find no merit in any of the grounds asserted in the demurrers. The action instituted by Trinity is based upon subrogation, but the relief sought is actually that of contribution, appellant contending at the least, that it paid more than its share of a common liability. As to the first ground, the statute of limitations had not run for the reason that Trinity had no cause of action against anyone until it made its first settlement payment on May 11, 1965. In Pennington v. Karcher, 171 Ark. 828, 286 S.W. 969, this court said:

‘ ‘ It was also expressly held in that case that the right of action for contribution accrues when one surety pays more than his share of the common liability. This is in accordance with the general rule, that a party acquires the right of contribution as soon as he pays more than his share, but not until then, and consequently the statute of limitations does not begin to run until then.”

See also Hazel v. Sharum, 182 Ark. 557, 32 S.W. 2d 315.

Nor can we agree that appellant was a mere volunteer in settling the claims with the obcupants of the King automobile. A volunteer is one, who, without interest to protect, or without a legal or moral obligation to pay, satisfies the debt of another. It is not necessary that we discuss whether the taking of the subrogation agreement removed appellant from this category, for it is very obvious, under the pleadings, that Trinity had an interest to protect. Appellees argue that, as a prerequisite to enforcing contribution among insurers, it is essential that the same risks have been insured, and it is pointed out that Trinity, in its complaint, asserted that it only had excess coverage over that of Maryland and State Farm, rather than a primary obligation to third parties. Appellees overlook the fact that appellant’s averment in its complaint provided “with respect to a non-owned automobile that the coverage shall apply only as excess insurance over any other insurance available to the insured.” The question of whether Miss McCoy was covered under policies issued by State Farm and Maryland is very much in controversy, and, should it develop that their policies do not afford coverage, appellant will have primary liability, Miss McCoy being appellant’s insured. It is thus apparent that Trinity had a very real interest in settling these claims. After all, if appellant held a bona fide view that appellee companies held the primary coverage, but knew that those companies would contest liability, what other steps could have been taken by appellant to protect its interest? According to the allegations in the complaint, it notified State Farm and Maryland, and sought their cooperation. They refused to have any part in any negotiations with claimants. Trinity asserted that, under the circumstances of the collision, it made a “very reasonable” settlement. Bear in mind that, in testing the sufficiency of a demurrer, well pleaded allegations of the complaint are taken to be true. Howell v. Ark. Power and Light Co., 225 Ark. 535, 283 S.W. 2d 680.

As to Points 3 and 4, we agree that, if Trinity were endeavoring to stand in the position of Marguerite McCoy for the purpose of enforcing a right of contribution against Lee Floyd (estate) the argument by appellees would be correct, for this would be a direct action against (according to the allegations of the complaint) one of State Farm’s insured, and would he a violation of Ark. Slat. Ann. § 66-4001 (Repl. 1966). But Trinity is not socking to enforce any right of contribution which its named insured, Marguerite McCoy, might have had against Lee Floyd as a joint tortfeasor; rather, it is seeking to enforce the alleged right which Marguerite McCoy had as an insured of State Farm and Maryland. To simplify the matte:', let us suppose that Miss McCoy had no insurance with Trinity, and was not carrying insurance of her own at the time of the collision. Following the accident, she advises State Farm that she believes she has coverage under the policy issued to Chris Floyd, because she and the son wore engaged in a joint venture, and he was instructing her how to drive at the time of the accident; she further informs Maryland that she believes she has coverage under the policy issued to Ralph Overstreet, because she was driving Overstreet’s automobile with the permission of his son, Don Overstreet. Both Btate. Farm and Maryland deny coverage, and inform Miss McCoy that they will not defend the litigation. Bhe has an opportunity to settle with claimants for a reasonable sum, and feels that she cannot afford to hold such an opportunity in abeyance until after testing- her rights against State Farm and Maryland. Accordingly, she settles with claimants from her own funds. Would any one then dispute her right to bring suit against the two insurance companies in a direct action as a matter of establishing her contention? That is exactly the situation before us in this litigation, except that Trinity, in making settlement for Miss McCoy, was subrogated to her rights against appellee companies.

Appellees expend considerable time in their briefs with the contention that this action should have been brought in the Circuit Court. As previously mentioned, a motion to transfer the cause to that court was filed by both appellee companies. However, the question of whether the case should have been transferred to law is not before us in this litigation. The court made no ruling whatsoever on this motion; the only ruling made was that the demurrers should be sustained. If appellees thought that the case should be transferred to Circuit Court, tlie}T should have insisted that the court pass upon the motions. In Higginbotham v. Harper, 206 Ark. 210, 174 S.W. 2d 668, this court said:

“But assuming that appellee had a complete and adequate remedy at law and should have proceeded there, his failure to do so was not ground for dismissing the complaint as prayed in the demurrer. Section 1243, Pope’s Digest. There was no motion to transfer to law, and the error, if error as to forum, was waived. ”

See also The Church of God in Christ v. The Bank of Malvern, 212 Ark. 971, 208 S.W. 2d 770.

Here, a motion was made to transfer to law, but was never acted upon; instead, the court sustained the demurrers and dismissed the complaint, which was error.

For the reasons heretofore set out, the decree is reversed, and the cause is remanded to the Pulaski County Chancery Court (Second Division) for further proceedings not inconsistent with this opinion.

      Lee Floyd died two days later as a result of injuries received in this accident.

      In Mosher v. Conway, 46 P. (2d) 110, the Arizona Supreme Court said:
      “* * * It is true, of course, that a mere volunteer, who has no rights to protect, may not claim the right of subrogation, for one who, having no interest to protect, without any legal or moral obligation to pay, and without an agreement for subrogation or an assignment of the debt pays the debt of another, is not entitled to subrogation, the payment in his case absolutely extinguishing the debt. But when one, to protect his own interest, pays a debt which he honestly believes must be paid to accomplish that purpose, we think, by the fundamental principles of equity, he cannot be held to be a mere volunteer, even though it may after-wards appear the payment was unnecessary.”

      Emphasis supplied.

      This statute provides that a judgment must first be rendered against the insured, and remain unsatisfied for a period of 30 days before suit can be instituted against the insurer.

      Ark. Stat. Ann. 5 27-208 (Repl. 1962) is identical to this section


source: Caselaw Access Project

author: George Rose Smith, Justice.

license: Public Domain

text:
    Kathleen Bailey Donahue, Administratrix, et al. v. Cam L. Cowdrey, d/b/a Rosedale Plumbing Center
    5-4849
    440 S.W. 2d 773
    Opinion Delivered May 26, 1969

      J[art-in, Dobbs, Kidd, Hendricks & Ryan and Tom Gentry for appellants.

      Barber, Henry, Thurman, McCaskill & Amsler for appellee.
   George Rose Smith, Justice.

In 1965 Curtis Boy Donahue was killed and Preston Brown injured when the sides of a deep narrow trench in which they were laying sewer pipe caved in, burying both men until rescuers dug them out. These actions for wrongful death and personal injuries were brought against the appellee, Cam L. Cowdrey, whose equipment was being used to excavate the trench. The cases were consolidated for trial. This appeal is from a verdict and judgment for the defendant. The principal arguments for reversal center upon the court’s instructions to the jury.

At the trial the principal issue of fact, as developed by the proof offered by the plaintiffs and by the defendant, involved the application of the borrowed-servant doctrine. Donahue and Brown were both employed by Olint Reynolds Plumbing Company. Reynolds had agreed to install for Thibault Milling Company a sewer line running from the Thibault mill to a city sewer main 400 feet’ away. .The line was to slope gradually from the mill to a maximum depth of nine feet at its far end.

Reynolds was not equipped to dig such a deep trench. As in earlier similar situations Reynolds arranged for Cowdrey to furnish a backhoe, with an operator, to make the excavation. The operator, Edward Vance, was a regular employee of Cowdrey. On the day of the accident the entire work crow, including Vance, Donahue, Brown, Clint Reynolds, and others, began the trench at its deepest point and worked toward the Thibault mill. The trench was only two feet wide, that being the width of the backhoe \s dredging bucket. The trench collapsed after the work had progressed for almost 100 feet.

The plaintiffs charged that Cowdrey and the backhoe operator were negligent in not bracing the excavation with timbers, in driving the backhoe too close to the trench, and in other respects that need not be detailed. Cowdrey’s principal defense, as far as this appeal goes, lay in the borrowed-servant doctrine, under which Cowdrey asserted that at the time of the accident Vance was working exclusively for Reynolds (whose liability to the plaintiffs was covered by the workmen’s compensation law). That defense presented a question of fact for the jury.

Upon the broad issue of the employer-employee relationship the court gave AMI 701, defining ‘employee,’ AMI 702, defining ‘scope of employment,’ and AMI 703, permitting the jury to consider Cowdrey’s ownership of the backhoe and his regular employment of Vance as facts bearing upon the Cowdrey-Vanee relationship at the time of the accident.

AMI contains no instruction on the borrowed-servant rule. Over the plaintiffs’ objections the court gave the following instructions upon that aspect of the case:

Instruction No. 15
One who is in the general employment and pay of another may be loaned or hired by his general or original employer to a third party for the performance of some particular services for such third party. If the original or general employer, and not the third party, retains the right to control and direct the conduct of the employee in the performance of such services then the original or general employer will be treated as his employer, with respect to such services. On the other hand, if the third party to whom the employee is loaned or hired lias the right to direct and control the conduct of the employee in the performance of such services, then the third party' will be considered his employer.
Instruction No. 16
In order for the plaintiffs, Kathleen Bailey Donahue, Administratrix of the Estate of Curtis Roy' Donahue, Deceased, and Preston Brown, to recover against the defendant, Cam L. Cowdrey, cl/b/a Rosedale Plumbing Center, you must find from a preponderance of the evidence that Edward Vance was, at the time of the occurrence, the employee of the defendant and acting within the scope of his employment.
If the services of Edward Vance were loaned or hired by the defendant to a third party and Vance was required to proceed in the performance of his work entirely under the control and direction of such third party, then he was the employee of such third party and your verdict should be for the defendant.

In attacking instruction number 16 the appellants rely generally upon the contention that a binding instruction is fatally defective if it omits an essential element of liability' or defense and specifically upon our applicatioii of that principle in Phillips Coop. Gin Co. v. Toll, 228 Ark. 891, 311 S.W. 2d 171 (1958).

The Phillips case is not so similar to this one as to be a controlling precedent on its face. -There the borrowed-servant rule -was not involved at all. A binding instruction was held to be bad (a) because it listed only-two of the several elements to be considered in distinguishing.an employee from an independent contractor and (b) because it contained a comment on the weight of the evidence. In the case at bar neither instruction 15 nor instruction 16 contained such a comment; so the applicability of the Phillips case turns upon whether number 16, which alone was binding, violated the requirement that such an instruction be reasonably complete within itself.

We are not willing to say that number 16 was fatally defective. In that instruction the trial court did not attempt, as in the Phillips case, to enumerate the various specific facts that were pertinent to the jury’s determination of the question at issue. Here the problem was that of determining Vance’s status: regular employee or borrowed servant. Several of the facts pertinent to that inquiry are discussed in the Restatement of Agency (2d), § 227, Comment c (1958). By way of illustration we take from that discussion three such facts: Vance’s comparative skill as a specialist; whether the backhoe was of considerable value; and whether Cowdrey could have substituted, another operator for Vance at any time.

Obviously that method of approaching the problem— the enumeration of specific facts bearing on the issue- — • was not adopted in instruction 16. Instead, the instruction merely referred to the ultimate fact of control, leaving counsel free to argue the specific subordinate elements to the jury. As we read the record, several of the specific pertinent facts were favorable to the plaintiffs. That is, Cowdrey owned the backhoe; the backhoe was a valuable piece of equipment; Vance was a regnlar employee of Cowdrey; Vance was a skilled operator ; Cowdrey coidd have substituted another operator for Vance; and Cowdrey was apparently in the business of supplying such equipment, together with an operator, to others. Under the court’s actual instructions counsel doubtless argued to the jury all those component parts of the ultimate factual question. If the plaintiffs wanted the added advantage of having the court enumerate such factors to the jury in an instruction, it was the plaint iffs ’ duty to draft and submit such an instruction. That duty could not be shifted to the court or to the defendant by the objection made by the plaintiffs to the instruction —that “it does not contain all the elements of master and servant relationship or principal and agent relationship under the law.” That objection was really more general than specific, since it did not assist the court in supplying whatever elements the plaintiffs thought to be missing from the instruction as tendered.

”Ve see nothing inherently wrong in instructions 15 and 16, when they are read together.. (That they may be so read, see Hearn v. East Texas Motor Freight Lines, 219 Ark. 297, 241 S.W. 2d 259 [1951].) Number 15 explained that an employee may be lent to a third person or may be retained in the service of his regular employer, the test being the right of direction and control. Number 16 carried that explanation of the law to its natural conclusion by stating that if Vance’s services had been lent to a third person (Reynolds) so that Vance was required to proceed with his work “entirely” under that person’s control and direction, then Vance was. the employee of that person, and the verdict should be for the defendant.

The suggestion is made that number 16 should have followed the language of number 15 by referring to the “right to control and direct” rather than to “the control and direction” of the third party. Unquestionably, however, instruction 16 was a substantially correct statement of the law; so the criticism now made about its phraseology should have been put in the form of a specific objection to the language selected. St. Louis, I.M. & S. Ry. v. Stacks, 97 Ark. 405, 134 S.W. 315 (1911); St. Louis, I.M. & S. Ry. v. Garter, 93 Ark. 589, 126 S.W. 99 (1910). Had such an objection been made the court would no doubt have suitably modified the requested charge.

The appellants’ other contentions for reversal do not require extended discussion. During the trial an objection v/as made by the defendant’s attorney to the use of the word ‘employee’ in a question put to a witness. In ruling upon the objection the court explained to the jury that the case would turn upon whether “in your opinion, in your judgment,” Yance Avas working on the particular occasion under the supervision and control of his own .employer or of Reynolds. The plaintiffs’ attorney objected to the court’s remarks as a comment on the evidence and asked for a mistrial.

The request was properly overruled. The court expressed no opinion of its own, making it clear that the question would be for the jury’s determination, under the guidance of instructions to be given later on. The granting of a mistrial is an extreme measure, to be resorted to only when “it must be apparent that justice cannot be served by a continuation of the trial. ’ ’ Back v. Buncan, 246 Ark. 438 S.W. 2d 690 (1969). Here there was no possibility of such a miscarriage of justice.

A third complaint is that the court refused to alloAv the plaintiffs ’ attorney to ask Reynolds if he had shored up the sides of the trench in completing the job after the cave-in. It is argued that a negative answer would have Aveakened Reynolds’ credibility, because he had stated earlier that he would have braced the excavation in the first plane if he had thought it to be dangerous. There Avas, however, no offer of proof that Reynolds’ answer would have been in the negative. An affirmative ansAver would have been inadmissible, under the rule of public policy that excludes proof of precautions taken to prevent the recurrence of an accident assertedly caused by negligence. See Comment, 3 Ark. L. Rev. 431 (1949). Hence the required showing of prejudice has not been made. New Hampshire Fire Ins. Co. v. Blakely, 97 Ark. 564, 134 S.W. 926 (1911).

Lastly, it is insisted that the court should not have given AMI 206, which told the jury that Cowdrey, asserted negligence on the part of the plaintiffs as a defense and had the burden of proving that assertion." It is argued that the instruction had no support in the evidence, there being no proof of negligence on the part of Donahue or Brown. The jury, however, might have been justified in believing from their own common knowledge and experience that the two workmen were careless about their own safety in entering a trench that was nine feet deep and only two feet wide. The unexplained cave-in provided support for that view. Hence we are of the opinion that the court was right in giving the instruction.

No error being shown, the judgment must be affirmed.


author: G-borgb Rose Smith, Justice. Jomsr A: Foot/eman, Justice.

text:
    Arkansas State Highway Commission v. H. C. Carruthers et ux
    5-4864
    441 S.W. 2d 84
    Opinion Delivered May 26, 1969

      Thomas B. Keys and Philip N. Gowen for appellant.

      George, J. Cambiano for appellee.
   G-borgb Rose Smith, Justice.

This is a condemnation suit brought by the highway department to acquire 13.72 acres as a right of way for Interstate 40 across part of the lands of the appellees, Dr. and Mrs. Carruthers. Dr. Carruthers fixed the landowners’ damages at $17,-727. His only expert witness gave a figure of $12,635. The jury’s verdict was for $13,500. On appeal the commission contends that the amount of the verdict is not supported by substantial evidence.

Dr. Carruthers owns other land in the vicinity, but for the purposes of this suit onfy a 190-acre tract was in issue. That tract comprises four forties in a north-south line and 30 acres in a fifth forty adjoining the southernmost full forty on the west. For clarification we insert a plat that is in the record. The Carruthers land is outlined in heavy black lines. The right of way being taken is shown as a wide diagonal black line.

Dr. Carruthers was the principal witness for himself and his wife. He explained that he raised cattle on other neighboring land. lie used the 190-acre tract in

controversy to grow alfalfa, lespedeza, and wheat as feed for Ms cattle. At the time of the taking, however, two of the forties were planted to soy beans — one by a tenant and the other by the doctor’s employees as a bonus to them.

Dr. Oarruthers, testifying from notes made in advance, valued the 190 acres before the taking at $400 an acre, or $7.6,000. He valued the land after the taking at $58,273. On cross examination the witness was given an opportunity to explain the $17,727 difference, but a study of his testimony shows that he actually failed to do so.

In explaining his figures the witness said that the highway department bad taken 13.72 acres, which he valued at $400 an acre. He stated that the “angles” created by the new highway made it impossible to farm a total of 3.85 acres with modern equipment, reducing the value of those angular’ areas to $50 an acre. He reduced to the same extent the value of 1.13 acres that he thought would be needed for turnrows after the construction of the new road. Finally, he reduced the value of all the rest of the tract by $50 an acre bjr reason of its having been cut in two. The witness did not add up his figures on the witness stand, but they may be tabulated as follows:

13.72 acres taken, at $400 an acre $ 5,488.00

3.85 acres damaged, at $350 an acre 1,347.50

1.13 acres damaged, at $350 an acre 395.50

171.30 acres damaged, at $50 an acre 8,565.00

190.00 acres $15,796.00

Despite the fact that Dr. Oarruthers was allowed to refer freely to Ms notes, it will be seen that his dollar- and-cents figures fall almost $2,000 short of the overall damages that lie claimed. It may also be noted that in his testimony he asserted damages of $1,347.50 for the four “angles” resulting from the diagonal crossing of the highway. Yet the witness,’in arriving at his value of $76,000 for the land before the taking, did not reduce his figures by even a penny to compensate for two identical angles already created by Highway 64. Can two such directly contradictory estimates with respect to identical situations both be regarded as substantial evidence"?

From the foregoing tabulation it will be seen that Dr. (■arruthers attributed more than half of his asserted damages to an across-the-board depreciation at the rate of $50 an acre. That valuation must be tested by our settled rule that the testimony of a witness, whether a layman or an expert, cannot be regarded as substantial evidence if he is unable to give any reasonable basis for his opinion. Quotations from three of our recent decisions will make the point clear.

In Arkansas State Highway Commn. v. Dupree, 228 Ark. 1032, 311 S.W. 2d 791 (1958), we affirmed the award only on condition that it be reduced by remittitur from $100,000 to $62,400. In the course of that opinion we said:

It is shown by the evidence that the owners now have 289 head of cattle on the property, but there is not a scintilla of evidence that they have ever made any money whatever out of cattle. Of course, it was to the interest of the owners to show the full earning capacity of the place, and yet they produced not one iota of evidence to the effect that they had over made any money whatever out of cattle. If the place was worth from $450,000 to $600,000, as estimated by witnesses produced by the owners, then, based on the capacity to support from 800 to 900 head of cattle, there would be an investment of from $500 to over $600 in land to support one cow. The record is completely void of any evidence to the effect that a person could pay such a huge amount for land on which to run cattle, and make a profit. Of course, the amount of profit that could he made on the land from farming or raising livestock is of primary importance here as going to show the value of the land, because there is no contention that the potential value of the property for industrial or residential purposes because of its location is lessened by reason of the new road.
Mr. William A. Payne, real estate appraiser engaged in the mortgage loan business, testified that the value of the property before the taking was $371,500 and after the taking $287,500, and he gave $87,000 as the amount of damages, including the cost of fencing. ' Of course, the witness could not arrive at a sound valuation without taking into consideration what the property would produce, and Mr. Payne did not know if any cotton is planted on the place, and thought the cotton allotment to be 2,-200 acres. The Government pays $46 per acre if the land is placed in the land Bank.
Mr. George Ed McCain has a place across the road from the property involved in this litigation. He places the damages at 20 per cent to 25 per cent of the total value of the place. Mr. McCain thinks the property is worth $200 per acre straight across, or $600,000 for the 3,000 acres, and that it will be depreciated $150,000 to $200,000 by the construction of the road. Mr. McCain gives no satisfactory basis for placing- such a huge market value on the property or for the amount of damages he mentioned.
The.owners have been operating this place since 1928 and there is no showing that they have ever made over $14,000 per year out of the property, and in arriving at this figure as to the profit made, nothing is allowed for the work the owners do in connection with the operation of the place. As heretofore stated, Mr. C. S. Dupree gives his full time to looking after the place, and his two brothers give part of their time. Certainly between the three of them their services would be worth at the minimum a total of $9,000, and when this charge is correctly made it would leave a net profit on the place of not over $6,000 per year. No witness says the place is worth from $380,000 to $600,000 because it would produce a net of some $6,000 to $14,000 per year from crops, and there is no showing that the owners have ever made a dime out of cattle.

Again, in Arkansas State Highway Commn. v. Byars, 221 Ark. 845, 256 S.W. 2d 738 (1953), no fewer than ten witnesses testified to damages that exceeded the amount of the verdict, but we nevertheless reversed the judgment for want of substantial evidence to support it. Prom the opinion:

There is no showing that any of the farm lands involved are suitable for any purpose except the production of livestock and hay. Yet not a single witness, including the owners themselves, gave any testimony whatever as to the number of livestock that the lands will support or the amount of feed that can be grown thereon. In determining the value of a livestock farm, one cannot ignore such material facts and arrive at an intelligent opinion.
"Whether there is substantial evidence to support a verdict is not a question of fact, hut one of law. Because a witness testifies as to a conclusion on his paid does not necessarily mean that the evidence given by him is substantial, when he has not given a satisfactory explanation of how he arrived at the conclusion.
* & &
“Tlie difficulty is in differentiating between any evidence and substantial evidence ... Must ap palíate judges close tlieir eyes and their minds to the obvious fact that in a particular case the evidence, from its very nature, could not have been convincing, though it produced a given result? Shall we affirm that such evidence was necessarily substantial because it was favorably acted upon by the jury ?’’

Finally, our opinion in Arkansas State Highway Commn. v. Stanley, 234 Ark. 430, 353 S.W. 2d 173, 4 A.L.R. 2d 749 (1962), is directly in point with respect to testimony which states a dollar-and-cents valuation without any supporting reasons for the witness’s conclusion:

After this introductory testimony Stanley stated that in his opinion the tract taken is worth twenty million dollars. This figure is arbitrary in that it has no relation whatever to any fact in the record. Stanley made no effort to say how he arrived at his valuation; it seems to have been plucked from the air and might equally well have been ten thousand dollars or a hundred million dollars. Even the opinion of an expert in the field of land valuation is not substantial evidence if he fails to show a fair or reasonable basis for his conclusion. Ark. State Highway Comm. v. Byars, 221 Ark. 845, 256 S.W. 2d 738. There is still less reason for finding the fanciful figure fixed by Stanley to be a sufficient foundation for the verdict in this case.

The principles announced in those cases apply to this one. Dr. Oarruthers took the position that the three untouched forties north of the interstate highway had been uniformly damaged at the rate of $50 an acre by being separated from the smaller part of the property south of the new right of way, but he gave no substantial reasons for his conclusion. By contrast, in the recent case of Arkansas State Highway Commn. v. Freyaldenhoven, 246 Ark. 688, 439 S.W. 2d 791, the landowner proved the need for access from one part of his land to the other and the damage he suffered from tlie loss of that access. Here there is no such factual proof.

Dr. Oarruthers made several statements about the loss of access to one part of the tract from the other, hut his assertions were so vague as to he of no help to the jury. He said that he and his brother, who owned other neighboring lands, had a “headquarters” at a point that cannot he located from the testimony in the record (except that it was not on the 190-acre tract in issue). But Dr. Oarruthers failed to say what the headquarters consisted of or to what extent his farming operations involved movements between the headquarters and the rest of the property. How could the jury assign a pecuniary loss lo the suggested possibility that the 190-acre tract had been separated from a headquarters about which the jurors knew nothing whatever?

In testifying about loss of access the doctor also inferred to an overpass which the highway department had provided at the southeast corner of the 190-acre tract. Dr. Carrutliers admitted that it was a good overpass, hut he said that it was not wide enough for the jiassage of a four-row cultivator. There is, however, not one lint» of testimony to show how often such passages may he necessary or to show that the doctor had ever owned or used such a cultivator. Of what help was such testimony to the jury in evaluating the claimed damage of *-■)() an acre?

In fact, Dr. Oarruthers vdiolly failed to saj7 why it was necessary for him or his employees to travel from one side of the nev.r higlway to the other in order to raise fodder for cattle. Moreover, at the time of the taking 80 acres north of the highway were being devoted to the cultivation of soy beans hv tenants or employees of the landowners. There is not a syllable of proof to show that those persons had any need for access to the property south of the highway. How could such utterly vague» testimony assist the jury in its deliberations?

The doctor also said that he would have to constnxct now roads involving a total area of 2.8 acres. He did not say to what extent those roads would replace the ones that already existed, or what type of roads the new ones would be, or what they would cost, or to what extent they might affect the value of the farm. Can such fragmentary evidence assist the jury in reaching a reasoned verdict?

Dr. Oarruthers’ testimony was actually quite similar to that of the landowner in the Stanley case, supra. Although he voiced the conclusion that the new highway would damage his land by $50 to the acre, he gave no supporting facts for that conclusion. As in the Stanley case, the $50 figure was apparently plucked from the air and might just as well have been $10 or $100. Such fanciful conclusions do not attain the dignify of substantial evidence.

We need not recite in detail the testimony of the other three witnesses called by the landowners. Dr. Oarruthers’ brother and the latter’s tenant both echoed the doctor’s assertion of an across-the-board damage to the entire tract at the rate of $50 an acre. But neither gave any factual basis for his statement. Rather to the contrary, the brother insisted on cross examination that the untouched forty tying more than a half mile away from the now highway was damaged to exactly the same extent as the forty that was actually bisected by the new construction. That a sympathetic jury may have given credence to such a statement does not lessen its absurdity.

One real estate appraiser, Forrest G-riswood, testified for the landowners. He valued the land at $300 an acre before the taking and paralleled Dr. Oarruthers’ testimony by finding a uniform damage of $45 an acre to the tract as a whole. The trouble is that he was able to adduce no facts whatever to support his expert opinion. Quite the contrary, he admitted on cross examinalion that most farms in tlie vicinity are similarly divided by public roads. Moreover, despite his insistence that the farm as a whole had been reduced in value from $300 to $255 an acre, he conceded on cross examination that after the construction of the new highway Dr. Carruthers had actually sold 80 or 90 acres of the very land in question for $350 an acre! No reasonable inference can be drawn from the witness’s testimony as a whole except that the untouched northern forties were in fact benefited by the new highway.

The jury’s verdict demonstrably exceeds the greatest amount that can be said to be supported by substantial proof. In a situation of this kind, where no particular ruling by the trial court is assigned as error, it is our practice to allow7 the landowner to remit down to the most liberal amount that we would approve if the jury liad returned a verdict for that sum. Arkansas State Highway Commn. v. Barr, 246 Ark. 204, 437 S.W. 2d 463 (1969). Here that amount cannot exceed $10,000, because the proof would not support the allowance of a greater sum even if one should include a severance award of $50 an acre for the two southernmost forties that v7ere crossed by the new construction. Hence the judgment will be affirmed if a remittitur of $3,500 is filed within 17 days; otherwise the judgment will be reversed and the cause remanded for a new trial.

Foot/eman, J., concurring in part; dissenting in part.

Byrd, J., dissents.

Jomsr A: Foot/eman, Justice.

I agree with the majority that the landowner’s testimony in this case did not constitute substantial evidence to support a jury verdict for an amount greater than the damages arrived at by any export witness. I do not agree with some of the factors upon which the majority find the testimony insubstantial.

I do not see liow the conclusion is readied that Dr. Carruthers did not consider the angles created by Highway 64 in arriving at his value of the tract before the taking. Dr. Carruthers was asked to state his opinion of the value of the 190-acre agricultural tract, which was treated as an integral unit for valuation purposes by all parties. Lie responded in the same manner as is common will) people who establish the criteria for market value, i.e., buyers and sellers of real estate. He gave the value of the tract in dollars per acre. This is the language spoken b}7 virtually everyone who speaks of values of farmland, if not of all unsubdivided tracts. This was the way appellant’s expert Mashburn expressed his appraised value before the taking. This does not mean that each acre bears the same value. It is clear to me that this landowner did not mean his testimony to be so construed. He had pointed out that there were roads and turnrows on the land, that part of the tract was wooded land, and that part of it was in drainage ditches. Although a purchaser would ascertain the acreage taken up in roads, ditches, woods, turnrows and angles, he would also arrive at a per acre figure for the whole tract in deciding what he would pay. There is no indication that Dr. Carruthers put separate values on the “disadvantaged” acres in arriving at his total “before taking” value. I trust that we will not find value testimony insubstantial simply because the language of the real estate market place is used by a witness. We are not likely to change that 'dialect outside the courtroom, whore the market value is actually established.

Furthermore, the failure to show that the doctor used or owned four-row farm equipment should be of no significance whatever. Even if the doctor never had farmed at all but was simply a landlord who rented his lands to tenants, any impediment to the use of four-row mechanized farm equipment in 1967 had a definite bearing upon the price any purchaser having the ability and occasion to purchase his farmland would be willing to Day for it. Every element which a businessman of ordinary prudence would consider before purchasing' property should be considered in arriving at its value. Kirk v. Pulaski Road Improvement District No. 10, 172 Ark. 1031, 291 S.W. 793. A person buying farmland in (he last half of the 1960’s who’ did not consider ability or inability lo use four-row equipment on agricultural land would not be one of ordinary prudence. In ÜK' present cost-price squeeze on agriculture the necessity for use of equipment this size or larger wherever possible is a matter of common knowledge which should not have to be shown by evidence.

The fact that Dr. Oarruthers might not need to cross the highway to raise fodder for cattle or that he grew alfalfa and cattle feed on part of the tract and permitted tenants and employees to grow soybeans on the remainder is also overemphasized by the majority. The use being made of the land by him is of minor importance. It is the land’s availability for the most valuable purpose for which it is adapted and can be used that determines market, value. Scott v. State, 230 Ark. 766, 326 S.W. 2d 812; Desha v. Independence County Bridge District No, 1, 176 Ark. 253, 3 S.W. 2d 969; Rinke v. Union Special School District No. 19, 174 Ark. 59, 294 S.W. 410; Weidemeyer v. Little Rock, 157 Ark. 5, 247 S.W. 62; Dramage District No. 11. v. Stacey, 127 Ark. 549, 192 S.W. 904. When the testimony of all witnesses is reviewed the only reasonable conclusion that could be reached is that the highest and best use of this property for market vahío consideration before the taking was as an. integral farm unit.

Neither do T agree that the testimony of Forrest Gris wood has no reasonable basis or that it does not constitute substantial evidence. ’ This 190-acre agricultural tract was connected for its entire length by a farm road connected with existing Highway 64. It ivas not badly broken by drainage ditches. There was a deep ditch which provided drainage-for the entire tract. Both parties treated it as an integral unit. Griswood also spoke the common language of the market place when he said that the damage to the Carruthers tract was $45 per acre. His qualifications as an expert witness were admitted by appellant. Griswood supported his statement by testimony that the tract was disintegrated as one operation and that a buyer would not pay as mud', for a farm that was disintegrated. He commenced to explain his answer but was interrupted by appellant’s attorney who was anxious to interrogate him about a subsequent sale of part of the lands. His admission that most farms in the vicinity were divided by public roads seems to me to be without significance in determining whether his testimony was substantial. No one contended, or even suggested, that the value of these other lands, as farms, would not have been greater if they had not been so bisected. Griswood stated the truism that expense of operation is greater when the lands arc divided than when they are in one block.

The sale of part of these lands by the owner is also given too much weight by the majority in measuring the substance of this expert’s testimony. It is to be noted that Griswood’s “before” valuation was $300 per acre, the same as appellant’s expert Mashburn’s, but less than the $350 per acre sale. It appears that this sale was made by Hr. Carruthers to his brother, who owned a lot of land on which he conducted farming operations in the immediate vicinity. Hr. Carruthers shared a farming headquarters with this brother. Such transactions are seldom at arm’s length. Usually, a tract of farmland is more valuable to an adjoining owner or to one with a headquarters nearby than it is on the open market.

I submit that every factor mentioned about Gris-wood’s testimony by the majority has to do with its weight but not its substance. The majority finds an inference in his testimony that part of the Carruthers land was benefitted by the highway, in some way I cannot find explained. Neither the appellant nor its witnesses suggested any such benefit.

I am also puzzled by the disxjosition of this case. I suppose appellee cannot be hurt by the court’s offer of an option. I would reverse and remand as wo did in Arkansas State Highway Commission v. Harr, 246 Ark. 204, 437 S.W. 2d 463. I can see no difference in this ease and that. In both, the single ground of appeal was that there was no substantial evidence to support the verdict. in both, the testimony which would support the verdict was held not to be substantial. The Barr opinion stated that it fell in the category of cases where error in the trial court enhanced the award. There we were unable to find a satisfactory figure clearly not excessive because acceptance of the values fixed by an expert for the landowner, whose testimony was substantial, would ignore the testimony of the highway commission’s ■experts. Here, the majority opinion leaves the record with only appellant’s experts as to “before” and “after” values. Yet the landowner may accept an amount twice that which would be supported by appellant’s appraiser who found the greatest amount as just compensation.


author: Lyle Brown, Justice. J. Fred Jones, Justice.

text:
    Arkansas State Highway Commission v. Emma Stallings Leavell
    5-4900
    441 S.W. 2d 99
    Opinion Delivered May 26, 1969

      Thomas B. Keys and Kenneth R. Brock for appellant.

      Gordon, Gordon & Eddy for appellee.
   Lyle Brown, Justice.

This action in eminent domain was brought by the Highway Commission to acquire lands needed for the relocation of Highway 9, necessitated by the construction of a new bridge across the Arkansas River near Morrilton. The jury awarded Emma Stallings Leavell $28,000. The Commission asserts error in that the trial court denied its motion for a change of venue and alleges alternatively that there is no substantial evidence to support the verdict.

The landowner had a tract consisting of 151 acres. The land is situated near the bank of the Arkansas River, slightly under two miles south of the heart of the City of Morrilton. Highway 9 runs south from Morrilton and between the west boundary of part of the lands and the river, then turns southwesterly across the river bridge. The northerly 36 acres are in the hills and inside the city limits. Mr. and Mrs. Leavell have their home on the hill land. The southerly 115 acres are in the bottoms. At the time of the taking the entire tract was used for the residence and for agricultural purposes. The taking involves only the 36 acres in the hills. It is not contended that, the bottom land was damaged.

The new location of Highway 9 may be described as entering the 36-acre tract near the southwest corner. It then goes into a curve, touching the east boundary of the lands and there turns northwesterly and leaves the Leavell property at a point near the center of the north boundary line. The curvature of the highway leaves the tract divided into three parcels of irregular shapes and sizes.

Basing their figures on residential development, three appraisers for the landowner fixed damages at $30,160, $24,200, and $26,100. Mr. Leavell approximated the damages at between $35,000 and $40,000. The two appraisers for the Commission based compensation on agrieu.ltu.ral use and fixed damages at $9,000 and $8,750.

In support of its motion for a change of venue the ('ommission introduced evidence reflecting judgments in nineteen condemnation cases tried in that county between June 18, 1967, and August 5, 1968. In all those cases the landowners received awards substantially exceeding the value testimony of expert witnesses called by the Commission. The value testimony in all of those cases was introduced in the case at bar by a lawyer witness who had inspected the records. That witness did not express any opinion as to whether the Highway Commission could obtain a fair trial in Coirwa}'' County.

Just as in the case of Arkansas State Highway Commission v. Duff, 246 Ark. 922, 440 S.W. 2d 563 tile Commission tendered no affidavits in support of its motion. Our holding in Duff, to the effect that a minimum of two supporting affidavits is required, is of course determinative of the issue. We would add only a brief comment to what we said in Duff. Since 1875 it has been the mandatory requirement of our statutes that any party to a civil action desiring an order for change of venue shall support his motion with the affidavits of at least two credible persons. Ark. Stat. Ann. 27-701 (Repl. 1962). That statute is not attacked nor is any legal reason offered for waiving it. As a practical matter it would appear that if the Commission cannot in fact obtain a fair trial, there would surely be available two credible persons who would have knowledge of such a fact and would supply the required affidavits. Appellant argues that the results of the nineteen cited trials make it obvious that it cannot receive a fair and impartial trial in the case at bar. Assuming, without deciding, that the assertion be a fact, it would not of itself justify this court in ignoring the statutory requirement for supporting affidavits. We are not permitted to so legislate.

No objection was made at the trial level that the motion was not supported by affidavits. Appellant therefore reasons that we should not consider the landowner’s argument on appeal that the absence of the affidavits is fatal. We evaluate the absence of the affidavits in resolving the ultimate question, that is, whether the trial court abused its discretion in denying the motion for change of venue. In the circumstances here, which of course include the failure to comply with the governing statute, we cannot say the court abused its discretion.

In support of its contention that the record is void of substantial evidence, appellant criticizes the use of two of the many comparable sales which were analyzed and compared with the Leavell property. On cross-examination Mr. Leavell improperly referred to an offer for a small portion of the 36-acre tract. Also, some of witness Barnes’ value figures were taken out of context to support appellant’s contention that Mr. Barnes was in error. If it he conceded that some or all of that testimony is subject to criticism, that fact would not necessarily destroy the substantiality of other testimony favorable to appellee.

The real attack on the evidence concerns the subject, of highest and best use. The Commission contends there is no reasonable basis for fixing the highest and best use as being for residential property. It is true the Commission’s witnesses considered the most advantageous use presently and in the immediate future to be agricultural. It was conceded by one of its witnesses that Morrilton is growing1 south toward the river and that it was not unreasonable to predict future urban development upon the Leavell property; however, he insisted that any such development would be at a time far in the future. On the other hand, three expert witnesses for the landowner testified that the highest and best use as of the dale of the taking was for residential subdivision. The elements upou which that conclusion was based were supported by such factors as the 36 acres being in the city limits; all utilities are available; the town is already expanding in that direction; the development of the Arkansas Biver for navigation and recreation will hasten the subdividing of the Leavell tract; two additions have already been developed between the subject property and 'Morrilton; and it was argued that the topography of the acreage was most desirable for homesites.

It is true, as is urged by the Commission, that we are concerned only with the present market value and not those values based upon speculative anticipation of future development. Arkansas State Highway Commission v. Watkins, 229 Ark. 27, 313 S.W. 2d 86 (1958). Consideration must be given to existing uses, but it cannot be seriously argued that present usage is the guideline. Tn fact, it was pointed out in Watkins that a tract, at the time of taking, may be utilized for fanning or it may be “covered with brush or boulders.” Nevertheless it is still proper in those situations to value the land for building purposes if those uses, at the time of taking, have an effect on the present market value of the land.

Such was the opinion of the three expert witnesses for the landowner. "Witness Gene Hewitt testified that he had been in the real estate business in Morrilton since 1955 and recounted experience in the development of a nearby subdivision. He concluded just compensation to be $30,160, based upon the recited elements which support residential development in the area. Mr. Leavell lias lived on the land for many years and of course showed substantial acquaintance with lands in the area. His estimate of just compensation was more than the jury actually awarded.

"We are unable to say as a matter of law that there is no substantial evidence to support the verdict.

Affirmed.

Jones, J., dissents.

J. Fred Jones, Justice.

At the risk of being accused of invading the province of the jury, I respectfully dissent from the majority opinion in this case.

As more specifically pointed out in my concurring opiuion in the case of Ark. State Highway Commission v. Dixon, 246 Ark. 756, 439 S.W. 2d 912, a tremendous gap has developed between the opinions of the experts testifying for the landowners, and those testifying for the highway commission, as to the damages sustained to land in highway condemnation cases, and this case is no exception. The lowest estimate of damages by the appellee’s experts in this case is $24,200 and the highest estimate by appellant’s experts is $9,000, a difference of $15,200. The jury verdict was for $28,-000. Tlie appellant’s expert appraisers say that the highest and best use of the land involved is for agricultural purposes; whereas the appellee’s experts say that its highest and best use is for subdivision residential development. As I attempted to point out in my concurrence in Dixon, supra, these expert appraisers had the same information available to them and drew their conclusions from the same source. If such discrepancy does not reflect on the qualifications of these witnesses as expert appraisers, it certainly does, in my opinion, adulterate the quality of their testimony and opinions as substantial evidence.

I recognize that only the trial judge has the statutory authority, under Ark. Stat. Ann. 27-1901—27-1903 (Repl. 1962), to re-examine the issues of fact after a verdict by a jury, and that it is the duty of the trial judge and not this court to set aside a verdict which is against the preponderance of the evidence. (La. & Arle. Ry. Co. v. O’Steen and Barr, 194 Ark. 1125, 110 S.W. 2d 488.)

I also recognize that in the case at bar enhancement in value by the construction of the highway was not pleaded by the appellant and that aside from a mere unsupported motion for a change in venue, the appellant relied on the usual, and almost trite contention, that there was no substantial evidence to support the jury verdict of $28,000. I recognize that my dissent is based on a rather radical departure from our usual procedures in determining what is substantial evidence.

Witness Hewitt testified for the appellee that the highest and best use of the land was for residential development and the damage was $30,160. Witness Hayes testified for the appellant that the highest and best use. was for agricultural purposes and that the damage was $8,750. The testimony of appellee’s experts ranged from Mr. Hewitt’s high of $30,160 to witness Barnes’ low of $24,200, and for the 'appellant the testimony ranged from Mr. Hayes’ low of $8,750 to Mr. Mashburn’s liigli of $9,000 — so what is substantial evidence under such discrepancy in the testimony of experts'? I am simply unable to accept as substantial evidence, the opinions of the experts in this case when the testimony, in my opinion, is so thoroughly contradicted by the plat of the area involved and accepted in evidence.

The land involved in this case is inside the corporate limits of Morrilton and is on a high bank overlooking the Arkansas River above lock and dam No. 9. The highway involved is not a controlled access highway, but is a new location of the old highway. The old highway crossed the river bridge and ran parallel with the river along the west side of appellee’s property, whereas the new highway crosses a new bridge a short distance down stream from the old bridge. The new highway enters appellee’s land at its southwest corner, crosses a part of the land and then curves north to run through the east side of appellee’s property. The old highway now constitutes a paved street on the west side of appellee’s property next to the river and the new paved highway provides highway frontage and access to any portions of the east half of appellee’s property.

If the appellee’s experts were correct in their opinion that the highest and best use of appellee’s land is for residential development purposes, then their testimony that the lands have been damaged by the construction of a paved road readily accessible to any residential plots that may be laid out on such land, simply does not make sense to me.

Since no enhancement in value was alleged in this case and no request was made for a new trial, I would reverse and remand for a determination of the market value of the land actually taken in fee and for an assessment of damages not to exceed that amount.


author:
      John A. Fogheman, Justice.
      Conley Byrd, Justice.

text:
    Louis Ray Jones v. The State of Arkansas
    5-5377
    441 S.W. 2d 458
    Opinion Delivered May 26, 1969

      Earliness, Friedman & Kusin for appellant.

      Joe Purcell, Atty. Gen. and Don Langston, Ass’t. Atty. Gen. for appellee.

      No evidence to support this statement was offered in the actual trial.

   John A. Fogheman, Justice.

Appellant was convicted of burglary and grand larceny. He lists 15 points for reversal. His failure to argue some of them, except by repeating the statement of the points themselves is evidence that these are merely formal in nature. Others are overlapping and intertwined. We shall treat as many of diese points in this opinion as seem to merit discussion, some of which we consider only in view of the reversal of this case for insufficiency of the evidence. Others we consider to be wholly without merit. In dealing with those of which there is some indication of merit, we will consolidate into the following:

1. The evidence is insufficient to support the verdict of the jury.

2. Appellant was never taken before an examining magistrate.

3. The conviction should be set aside because appellant’s arrest was not based upon a warrant or probable cause.

4. Fvidence obtained by search of a barn wherein a large quantity of paint was stored should have been suppressed.

5. A cardboard box found'by an officer prior to the arrest of appellant should have been suppressed as evidence.

6. Appellant was deprived of constitutional rights by failure of the officers to advise him of his right to counsel, to permit him to use a telephone for at least 30 hours, to permit him to communicate with his parents or relatives, and- by interrogation of appellant.in the absence of any attorney.

7. The court erred in giving an instruction distinguishing between direct and circumstantial evidence.

8. The court erred in instructing the jury as to a rule of evidence in regard to possession of stolen property.

We treat these points in the order listed.

1.

We find reversible error in the denial of appellant’s motion for new trial on this ground.

The Sherwin-Williams Paint Store on State Line Road in Texarkana, Arkansas, was burglarized duriug the weekend of May 27, 28 and 29, 1967. Paint, brushes and other articles worth more than $5,000 were taken from tire store. Among the articles taken were various cloths, a sander, a sale containing papers and records, and various accessories. The burglary was discovered by Sid Smith, the manager of the store, at 7:00 a.m., Monday, May 29. The store had apparently been entered through a window which had been broken and unlocked. Smith immediately notified the Texarkana Police Department. Chief Max Tackett directed the investigation. lie learned that a yellow panel-body truck belonging to the paint store had been found at the store on Monday morning with its motor running. lie also had information that a truck belonging to the Texarkana School District had been stolen during the same weekend. Assistant Chief Thurman Quisenberry examined the school truck. It was a 1%-tou or 2-ton flat bod truck. The floor of the truck bed consisting of 1” x4” wooden slats was heavily scratched and scarred. The truck was light green, but the bed was black. Tt had dual wheels and oak sideboards. It had been found abandoned on the side of a road near Fulton. Clay mud was found underneath the truck, and sprigs of wild oats were caught in the springs underneath the truck. On and about the bed of the truck Chief Quisenberry found limbs and thorns frombois d’arc trees, cedar limbs and foliage and leaves appearing 1o be from wild hedge. Freshly sprayed black paint appeared along tlie edges of tlie floor slats. Lettering on tlie truck doors had been obliterated by paint of the same color, but of a different type. In the truck the officer found a claw hammer and a small can of green spray paint of the same brand carried in the stock of the paint store. Both Tackett and Quisenberry examined the truck at the paint store and found foliage, some of which was on the rearview mirror, sililar to that found on the school truck. Quisenberry noticed scratches up and down both sides of the paint store, truck. Chi of Tackett ascertained that plants bearing these types of foliage were indigenous to the vicinity of Brownstown, a small community in Sevier County. He proceeded to that area with Quisenberry and Officer John Butler. Butler was taken because he had previously made his home in Sevier County about six or seven miles from Brownstown. They went near a place known to Butler as the Hogue place. After going some 200 yards from the highway and through a wire gap, they noticed the tracks of a dual-wheeled truck. They drove about 300 yards down through woods to a creek. They walked across the (week and followed these tracks into a thicket of hois d’arc bushes. They then drove back to a welding shop and learned that a new house had been built north of the house that Butler remembered.

The next day Tackett, Butler, Quisenberry and Officer "Weir returned to the area. As they came into the area they saw a house on the Hogue place 10 to 12 feet square with a garage to the right, a tool shed to the left real' and a combination chicken house and barn just beyond the tool shod. The barn was 60 to 70 yards from the road and the tool shed 10 to 20 yards from it. The house was 30 to 40 yards from the road. They recognized a 1960 model Chevrolet automobile parked in the road in front of the house as one used by both Louis Bay Jones and his mother, a resident of Texarkana. Jimmy Hogue, the owner of the place was Louis Bay Jones’ grandfather. A man named Carl Bay was in charge of the place.

Butler went up to Snead’s grocery, while the other officers proceeded along the road about a half mile, passing through,the wire gap. Weir remained with the ear while Tackett and Quisenberry walked farther. After they crossed a creek, Tackett found a piece of pasteboard which bore stencilled marks pertaining to Sherwin-Williams át Texarkana. Following dual wheel tracks, they saw skinned places on the brush bearing bluish green paint marks approximately the same color as the paint on the school truck. After the officers had unsuccessfully searched the area for the safe and other missing-articles, they returned to the area of the small house they had seen, leaving the police car 50 or 60 steps from the place the cardboard was found and about 60 to 70 steps frQm the place the dual wheel tracks led into brush consisting largely of bois d’arc in a place where some wild oats also grew. They had been rejoined by Butler who reported information he had received at the store. The officers walked around behind the garage, where they found dual wheel tracks, appearing to be fresh, leading to the barn on the side most remote from the highway. Looking through a wire enclosure they saw that the barn contained stacks of hay. It appeared to Butler that the barn door had been recently opened. Weir and Butler looked through a crack and saw a two-wheeled dolly.

Quisenberry took up a station in some woods 50 or 60 yards .from the road in a position where he could watch the house, barn and other buildings, while Tackett, Butler and Weir proceeded to the Snead store. From there, Chief Tackett called the sheriff’s office at DeQueen for a search warrant. ITe left Weir at the store to await the arrival of a Sevier County officer, and he and Butler returned to the area where the cardboard had been found and searched for the safe and paint for more than an hour. During this time Quisenberry saw Louis Bay Jones, Jo Ann Womack and Wayne Jones arrive in a Volkswagen, which they parked in front of the Chevrolet. After they raised.the hood on the Chevrolet, Louis Bay and Jo Ann Womack came around behind the garage and mounted a tractor located between the garage and the house. They backed the tractor into the road and proceeded in the direction in which Tackett and Butler had gone. Butler and Tackett heard the motor of the tractor and could tell that it was approaching them. When Butler got back to the police car, he saw a set of tractor tracks indicating that a tractor had been turned around near the car. Weir had seen the party arrive and called Chief Tackett on a “walkie-talkie” radio and advised him of the party’s arrival. Tackett instructed Weir not to let these people leave, but not to make any arrests before the Sevier County officer arrived, if he could avoid doing so. Shortly thereafter Deputy Sheriff Young arrived, and he and Weir went to the house. About 10 or 15 minutes after they arrived, Louis Kay Jones and Miss Womack returned, and were placed under arrest by these officers. The arrest was made about 20 or 30 feet from the shed or garage at or near the edge of the road. Chief Tackett and Butler arrived shortly thereafter and found Louis Kay Jones and Jo Ann Womack under arrest and in a car. Young had a search warrant which was declared invalid by the trial court. The officers immediately commenced a search of the barn and garage in the vicinity. In the barn they found most of the stolen articles which were later returned to the Sherwin-Williams Paint Store. They did not fiud the safe. They also found a large number of empty fertilizer sacks in the barn and fertilizer in clear plastic bags in the garage. The bags were colored red in part. Some of the bags in the garage were also empty. The two-wheeled dolly was recovered from the garage.

T. D. Snead ran the store about a quarter of a mile away from the place where Jones was arrested. Late in the evening on the day before the police came up he saw a large truck with sideboards pull out from the barn. It went south toward the cliff, a point beyond the Hogue house near the river and south of Brownstown. .

Oil.the following day Tackett, Quisenberry, Weir and Butler returned to the. area with Willis B. Smith, Jr., and went along the road beyond the Hogue place, searching for the safe. . They found and recovered-a plastic bag of the type.found at .the barn and garage containing Sherwin-Williams papers and records. They found dual wheel tracks indicating that a truck had backed up to Little River where they found 12 or 15 more of the same type bags. Two of these found in the ri-ver also contained records and papers belonging to Sherwin-Williams Paint Company at 800 State Line Road. The papers were identified by the manager of Sherwin-Williams. Paint Company.

This evidence was entirely circumstantial. We find it insufficient to support the jury verdict. Where circumstantial evidence alone is relied upon to establish guilt of one charged with a crime, such evidence must -exclude every other reasonable hypothesis than that of the guilt of the accused. Logi v. State, 153 Ark. 317, 240 S.W. 400; Turner v. State, 192 Ark. 937, 96 S.W. 2d 455; O'Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976. A conviction resting upon evidence which fails to come up to the standard prescribed is contrary to law, and it is the duty of the court to set it aside. Where all the circumstantial evidence leaves the jury to conjecture only in determining the guilt of one accused, it fails to meet this standard. Logi v. State, supra.

The conviction here is based upon evidence lacking important elements shown in cases where we have found circumstantial evidence sufficient. In this case there was no evidence indicating that appellant was ever actually- in possession of any part of the stolen property as there was in Meadows v. State, 128 Ark. 639, 193 S.W. 264; or that he was ever present at or near the paint store as was shown in Nick v. State, 144 Ark. 641, 215 S.W. 899; or that he had actually been present at the place Or in the-vicinity where the stolen property was found prior to the time when seen by the officers; or that he was- ever in tlie vehicle tracked to the area where the paint was found as was shown in Nick v. State, supra. Under this state of the record, the circumstances could be just as consistant with the guilt of Jimmy Hogue, Carl Ray, Wayne Jones, Jo Ann Womack (now Jones), or any one of innumerable people who might have had access to the Hogue place and the garge and barn there. There was no evidence whatever as to who might have lived on or frequented the premises. It was not shown that appellant lived on or had occasion to stay on the premises as was indicated in Nick v. State, supra, and O’Neal v. State, 179 Ark. 1153, 15 S.W. 2d 976. The evidence in this case is no stronger than was the circumstantial evidence of grand larceny in France v. State, 68 Ark. 529, 60 S.W. 236, where we said that the defendant might be guilty, that the circumstances were suspicious but the evidence was too slight to support the verdict and a new trial should have been granted.

2.

We have repeatedly said that the provisions of Ark. Stat. Ann. § 43-601 (Repl. 1964) are directory, not mandatory. There can be no reversible error solely because of a failure to take one lawfully arrested before a magistrate for preliminary examination. Moore v. State, 229 Ark. 335, 315 S.W. 2d 907; Paschal v. State, 243 Ark. 329, 420 S.W. 2d 73.

3.

We find ample evidence to justify the arrest of appellant in this case. His actions and conduct after the officers had arrived at the Hogue place were sufficient to give them reasonable grounds for believing that he had committed a felony. He stopped immediately at an apparently disabled car he had been known to drive at a place where the officers had reason to believe fruits of the crime were stored. He displayed a great familiarity with the premises and the surrounding area where incriminating evidence had already been found. He commenced an immediate reconnaisance of the area. His tractor ride with his girl friend commenced in an area near the garage and barn. It took them toward the area where the truck tracks, the cardboard and other incriminating evidence had been observed but was reversed abruptly when the police car came into his sight. Under Ark. Stat. Ann. § 43-403 (Repl. 1964) an officer has the right to make an arrest when he has reasonable grounds for believing that the person arrested has committed a felony. Appellant argues that even if the other officer's did have reasonable grounds for making the arrest, Deputy Sheriff Young did not. Obviously, knowledge and information gained by the officers were interchanged among them. Chief Tackett, while approaching the place of arrest, directed by radio that it be made. Butler had previously conveyed to Tackett the information given him by Snead. Young testified on the hearing on a motion to suppress evidence that Weir stated that the Texarkana officers had reason to believe that the stolen paint was in the area or buildings, that Louis Ray Jones had been seen hauling feed or hay in the area, and that Jones and the girl had ridden away from the area on a tractor. He stated that the only ground for him to suspect the parties was the statement the officer, Weir, had given him. Probable cause is to be evaluated by the courts on the basis of the collective information of the police (which may consist partially of hearsay) rather than that of only the officer who performs the act of arresting. Smith v. United States, 358 F. 2d 835 (D.C. 1966), cert. denied, 386 U.S. 1008. See also State v. Fioravanti, 46 N.J. 109, 215 A. 2d 16 (1965); United States v. Ventresca, 380 U.S. 102, 85 S. Ct. 741, 13 L. Ed. 2d 684. Information coming to officers must rise above mere suspicion of criminal activity in order to constitute probable cause for an arrest, but it need not be tantamount to that degree of proof sufficient to sustain a conviction. Clay v. United States, 394 F. 2d 281 (8th Cir. 1968), cert. denied, 393 U.S. 926; Reed v. United States, 401 F. 2d 756 (8th Cir. 1968). See also Smith v. State, 241 Ark. 958, 411 S.W. 2d 510.

4.

The trial judge conducted an extensive hearing on appellant’s motion to suppress this evidence. The evidence heard was virtually identical with that later adduced during the trial. The trial judge found from the evidence that appellant had no standing to complain and that the search was incident to and contemporaneous with a lawful arrest. We find substantial evidence to support his findings that the search was incidental to and contemporaneous with a lawful arrest, even if appellant did have standing to complain.

In applying Fourth Amendment sanctions, it must always be remembered that only unreasonable searches are condemned. Carroll v. United States, 267 U.S. 132, 45 S. Ct. 280, 69 L. Ed. 543 (1924). Reasonableness of a search must be tested under the particular circumstances of the case rather than by comparison with particular searches which have been approved by the United States Supreme Court in specific cases. That court has deliberately avoided the establishment of any formula or measure by which the validity of a search should be determined. In United States v. Rabinowitz, 339 U.S. 56, 70 S. Ct. 430, 94 L. Ed. 653 (1959) that court said:

“What is a reasonable search is not to be determined by any fixed formula. The Constitution does not define what are ‘unreasonable’ searches and, regrettably, in our discipline we have no ready litmus-paper test. The recurring questions of the reasonableness of searches must find resolution in the facts and circumstances of each case.”'

If comparisons with specific cases are to be made, it is better to make them with cases wherein searches have been disapproved as unreasonable. We find no decision of the United States Supreme Court wherein a search such as this has been held unreasonable.

The only limitation which has been placed upon a search incidental to an arrest is that it not be remote in time and place. See Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145; Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964). In order to be incident to an arrest, it is only necessary that the search be substantially contemporaneous with the arrest. See Stoner v. California, 376 U.S. 483, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964). This does not mean that the arrest cannot precede the search. Nor does it moan that the search is necessarily restricted to the boundaries of the premises where the arrest is made. The time and space intervals must not be so unreasonable as to render the search remote. Applying that criterion to the case before us, we find that there was evidence that the officers commenced the search as soon as appellant was placed under arrest. A search incident to a lawful arrest could scarcely be less remote in time than this. The most reinóte point of the search was conducted within 70 3rards from the point of arrest. The search took place on premises on which appellant was arrested or immediately adjacent to the point on a public road on which he was arrested. We find no declaration by the Supreme Court of the United States that a search not within the precise boundaries of the premises on which an accused was arrested is unreasonable. Where, as here, the search is in the immediate vicinity of the place of arrest and movements of the arrested person in that vicinity had been observed, we find that it was reasonable. See Stoner v. California, supra. We do not consider the fact that the arrest was made in the public road bordering the premises searched, standing alone, would make the search remote in space. Actually, the road, or a substantial part thereof, could be said to constitute a part of the property of the abutting owner on whose premises the search was made. McLain v. Keel, 135 Ark. 496, 205 S.W. 894; McGee v. Swearengen, 194 Ark. 735, 109 S.W. 2d 444; Wilkerson v. Gerard, 200 Ark. 125, 138 S.W. 2d 76.

Tlie legitimate objects of a search incidental to an arrest include fruits of the crime [Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925); Preston v. United States, 376 U.S. 364, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964)] and evidentiary material. Warden v. Hayden, 387 U.S. 294, 87 S. Ct. 1642, 18 L. Ed. 2d 782 (1967). Cases such as Googer v. California, 386 U.S. 58, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967) which seem to limit some warrantless searches for evidence to situations where necessary to prevent destruction of evidence are not applicable to searches contemporaneous with an arrest. In that case, the search was conducted a week after the arrest. It ivas admitted that it was not incidental to the arrest. . Cases involving searches preceding and used as justification for an arrest in “stop and frisk” cases such as Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968) are also inapplicable.

5.

The cardboard box bearing the name and address of the burglarized paint store was introduced as an exhibit over appellant’s objection and his motion to suppress was denied. This was an “open field” search and not unreasonable. Hester v. United States, 265 U.S. 57, 44 S. Ct. 445, 68 L. Ed. 898 (1926); McDowell v. United States, 383 F. 2d 599 (8th Cir. 1967).

6.

YVe do not understand appellant’s arguments here. If the state had sought to introduce evidence of in-custody statements resulting from interrogation or if it were contended that he was denied counsel at a critical stage in his prosecution by state action, then we might have some basis for inquiry as to the denial of constitutional rights. ■ ■ Since no such questions are involved, we find no merit in this contention.

•7.

• The court’s instruction on this point read as follows:

“A fact in dispute may be proved by circumstantial evidence as well as by direct evidence. A fact is established by direct evidence when, for example, it is proved by witnesses who testify to what they saw, heard, or experienced. A fact is established by circumstantial evidence when its existence can reasonably be inferred from other facts proved in the case. Any fact in the case, and any element of the crimes charged may be proved by either kind or both kinds of evidence.”

Appellant’s objection was that the instruction should not have, been given .because there was no direct evidence to connect him with the crime. We found a substantially similar instruction invulnerable to that objection in Duckett v. State, 175 Ark. 1169, 299 S.W. 1004.

8.

Appellant does not object to this instruction as incorrect. He only objects to it as being inapplicable and ■abstract, contending that there was no evidence to show that Louis Ray Jones was ever in possession of the stolen property. . We find this objection well taken in the absence of evidence that the stolen property was or had been in appellant’s possession, or other direct evidence connecting him with the crime.

We think it is proper that the case be remanded for a new trial, as was done in France v. State, supra.

Byrd, J. concurs.

Haréis, C.J., dissents.

Conley Byrd, Justice.

I concur in the result reached but 1 am also of the opinion that the search was not incident to a lawful arrest within the reasons given by the IT. S. Supreme Court for allowing the exception to the Fourth Amendment requirement of a search warrant.

The record shows that the Texarkana Police, under the direction of Chief Max Tackett, called the sheriff’s office of Sevier County with a request for a search warrant. AYliile they were waiting for the search warrant, appellant, his brother and his girl friend drove up to the grandfather’s house place in a A^olkswagon. The brother began to work on his mother Is car. Appellant and the girl friend got on a tractor, drove across the field near Chief Tackett’s car, came back, parked the tractor behind the barn, and were in the process of leaving in the ATdkswagon when Deputy Sheriff Young of Sevier County arrived with the search warrant. Acting upon directions from Chief Tackett, the deputy sheriff arrested appellant and his girl friend at a point on the gravel road some twenty-five to forty feet from the garage and about sixty to seventy yards from the barn. The officers then arrested the brother and made a complete search of the garage and barn where they found the paint and other related articles.

Based upon Mapp v. Ohio, 367 U.S. 643, 81 S. Ct. 1684, 6 L. Ed. 2d 1081 (1961), and the exclusionary rule adopted thereunder, appellant moved to suppress the evidence obtained by the search on the ground that the search warrant was illegally issued. The trial court, finding that the warrant was issued by the clerk instead of a magistrate, held that the search warrant was invalid, but permitted the evidence obtained from the search to be introduced on the theory that it was a valid search incident to a lawful arrest.

The State, to support the action of the trial court, cites as authority an annotation-in 19 A.L.R. 3rd at pages 805 and 807 wherein several states have permitted a search as an incident to a lawful arrest so long as the search of premises was in the “immediate presence,” “immediate control,” or “immediate surroundings” of the person arrested. However, because the Fourth Amendment of the U. S. Constitution has been made applicable to the States by Mapp v. Ohio, I believe we should look to the interpretation given the Fourth Amendment by the H. S. Supreme Court, rather than rely upon interprepations given by the several States to their own Constitutional provisions.

The Fourth Amendment only prohibits “unreasonable searches and seizures.” In applying its exclusionary rule, the United States Supreme Court has consistently recognized a search incident to a lawful arrest as being reasonable.

In Preston v. United States, 376 U.S. 364, 367, 84 S. Ct. 881, 11 L. Ed. 2d 777 (1964), Mr. Justice Black stated:

“.. . Unquestionably, when a person is lawfully arrested, the police have the right, without a search warrant, to make contemporaneous search of the person of the accused for weapons or for the fruits of or implements used to commit the crime. Weeks v. United States, 232 U.S. 383, 392 (1914); Agnello v. United States, 269 U.S. 20, 30 (1925); This right to search and seize without a search warrant extends to things under the accused’s immediate control, Carroll v. United States, supra, 267 U.S., at 158, and, to an extent depending on the circumstances of the case, to the place where he is arrested, Agnello v. United States, supra, 269 U.S., at 30; Marron v. United States, 275 U.S., 192, 199 (1927); United States v. Rabinowitz, 339 U.S. 56, 61-62 (1950). The rule allowing contemporaneous searches is justified, for example, by the need to seize weapons and other things which might be used to assault an officer or effect an escape, as well as by the need to prevent the destruction of evidence of the crime —tilings which might easily happen where the weapon or evidence is on the accused’s person or under his immediate control. But these justifications are absent where a search is' remote in time or place from the arrest.. . ” '

In Agnello v. United States, 269 U.S. 20, 46 S. Ct. 4, 70 L. Ed. 145 (1925), the facts showed that Agnello was arrested a block or two from his residence. In holding the search unlawful and not incidental to a bvwful arrest, the court said: "While the question has never been directly decided by this court, it has always been assumed that one’s house cannot lawfully be searched without a search warrant, excejot as an incident to a lawful arrest therein. ’ ’

A reading of the decisions of the United States Supreme Court shows that a search as an incident to a lawful arrest, without a warrant, has been approved only (1) where the arrest was made within the premises, Ker v. California, 374 U.S. 23, 34, 83 S. Ct. 1623, 10 L. Ed. 2d 726 (1963); Stoner v. California; 376 U.S. 483, 486, 84 S. Ct. 889, 11 L. Ed. 2d 856 (1964); (2) where the search was necessary to seize weapons or other things which might be used to assault the officers, Sibron v. New York, 392 U.S. 40, 88 S. Ct. 1889, 20 L. Ed. 2d 917 (1968); or (3) where the search was necessary to prevent the destruction of evidence, Cooper v. California, 386 U.S. 58, 59, 87 S. Ct. 788, 17 L. Ed. 2d 730 (1967).

Here, (1) the arrest was not made within the barn or the garage, and (2) there is no showing that the same was necessary to prevent an injury to the officers or an escape of the person arrested, or (3) to prevent the destruction of evidence. Therefore I am of the opinion that the search was not incidental to a lawful arrest.